EXHIBIT 1.1
9,500,000 SHARES
CENTURY ALUMINUM COMPANY
COMMON STOCK, $.01 PAR VALUE
UNDERWRITING AGREEMENT
April 7, 2004
April 7, 2004
Credit Suisse First Boston LLC
Eleven Madison Avenue
New York, New York 10010
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As representatives of the Underwriters
listed in Schedule I hereto
Dear Sirs and Mesdames:
Century Aluminum Company, a Delaware corporation (the "COMPANY"),
proposes to issue and sell to the several Underwriters named in Schedule I
hereto (the "UNDERWRITERS") and Century Aluminum Employees Retirement Plan (the
"RETIREMENT PLAN") and the Century Aluminum of West Virginia, Inc. Hourly
Employees Pension Plan (the "PENSION PLAN" and together with the Retirement
Plan, the "SELLING SHAREHOLDERS") propose to sell to the several Underwriters,
an aggregate of 9,500,000 shares of the Common Stock, $.01 par value, of the
Company (the "FIRM SHARES"), of which 9,000,000 shares are to be issued and sold
by the Company, 100,000 shares are to be sold by the Retirement Plan and 400,000
shares are to be sold by the Pension Plan.
The Company also proposes to issue and sell to the several Underwriters
not more than an additional 950,000 shares of its Common Stock, $.01 par value
(the "ADDITIONAL SHARES") if and to the extent that you, as Managers of the
offering, shall have determined to exercise, on behalf of the Underwriters, the
right to purchase such shares of Common Stock granted to the Underwriters in
Section 3 hereof. The Firm Shares and the Additional Shares are hereinafter
collectively referred to as the "SHARES." The shares of Common Stock, $.01 par
value, of the Company (including the Shares) are hereinafter referred to as the
"COMMON STOCK". The Company and the Selling Shareholders are hereinafter
sometimes collectively referred to as the "SELLERS."
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-3 (File No. 333-113667),
including a prospectus, relating to the sale from time to time by the Company of
shares of Common Stock with an aggregate offering price of up to $300,000,000
and by the Selling Shareholders of up to an aggregate of 500,000 shares of
Common Stock, and has filed or transmitted for filing to, or shall promptly
hereafter file with or transmit for filing to, the Commission a prospectus
supplement (the "PROSPECTUS SUPPLEMENT") specifically relating to the sale of
the Shares pursuant to Rule 424 under the Securities Act of 1933, as amended
(the "SECURITIES ACT"). The registration statement as amended at the time it
became effective and in effect on the date hereof is hereinafter referred to as
the "REGISTRATION STATEMENT"; the prospectus in the form included in the
Registration Statement is hereinafter referred to as the "BASE PROSPECTUS" and
the Base Prospectus together with the Prospectus Supplement used to confirm
sales of Shares is hereinafter referred to as the "PROSPECTUS" (including, in
the case of all references to the Registration Statement, the Base Prospectus,
the Prospectus Supplement and the Prospectus, documents incorporated therein by
reference). The terms "SUPPLEMENT" and "AMENDMENT" or "AMEND" as used in this
Agreement with respect to the Registration Statement or the Prospectus shall
include all documents subsequently filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), on or prior to the Closing Date or the Option Closing Date, as the case
may be, that are deemed to be incorporated by reference in the Prospectus. If
the Company has filed an abbreviated registration statement to register
additional shares of Common Stock pursuant to Rule 462(b) under the Securities
Act (the "RULE 462 REGISTRATION STATEMENT"), then any reference herein to the
term "REGISTRATION STATEMENT" shall be deemed to include such Rule 462
Registration Statement.
It is understood and agreed that the Company is party to an Amended and
Restated Stock Purchase Agreement, dated as of March 28, 2004 by and among the
Company, Columbia Ventures Corporation and Nordural hf, an Icelandic company
("NORDURAL") (the "STOCK PURCHASE AGREEMENT"), to acquire 100% of the
outstanding equity shares of Nordural (the "ACQUISITION"). It is understood that
the Company intends to use the net proceeds of the offering of the Shares to be
sold by the Company (the "OFFERING") (i) to pay $165.7 million to fund the
Acquisition, (ii) to pay up to $25.0 million for the contingent payment related
to the planned Nordural expansion under the Stock Purchase Agreement, (iii) to
repay $12.0 million of the remaining indebtedness owed to Glencore Acquisition I
LLC under a six-year 10% promissory note, (iv) to pay $3.0 million in dividends
on the Company's convertible preferred stock and (v) towards general corporate
purposes, including financing part of the planned expansion of the Nordural
facility as described in the Prospectus and the payment of any purchase price
adjustments related to the acquisition. In addition, Glencore AG has agreed to
convert its 500,000 shares of the Company's convertible preferred stock (the
"GLENCORE CONVERSION", and together with the Offering, the Acquisition and (i),
(ii), (iii), (iv) and (v) of the preceding sentence, the "TRANSACTIONS") as soon
as reasonably practicable following the expiration of the applicable waiting
period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 0000 (xxx "XXX
XXX"). This Agreement, the amendment to the Company's $100 million senior
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secured revolving credit facility required to consummate the Acquisition (the
"CREDIT AMENDMENT"), the Stock Purchase Agreement and any other definitive
documentation executed in connection with the Acquisition prior to the Closing
Date (as defined below) or any Option Closing Date (as defined below) (the
"ACQUISITION DOCUMENTS") are collectively referred to as the "TRANSACTION
DOCUMENTS"). Unless stated otherwise, references in this Agreement to the
Company and its subsidiaries shall include Nordural; provided that explicit
references to the Company's subsidiaries in the opinions to be delivered
pursuant to Section 6 of this Agreement (other than the opinion of Fulltingi
Legal Services to be delivered pursuant to Section 6(f)) shall not include
Nordural. The representations and warranties set forth in Section 1 of this
Agreement in respect of Nordural are made to the best of the Company's knowledge
after due inquiry.
1. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no
stop order suspending the effectiveness of the Registration Statement
is in effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed
pursuant to the Exchange Act on or prior to the Closing Date or the
Option Closing Date, as the case may be, and incorporated by reference
in the Prospectus complied or will comply when so filed in all material
respects with the Exchange Act and the applicable rules and regulations
of the Commission thereunder, (ii) the Registration Statement, when it
became effective, did not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (iii) the
Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with
the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the representations
and warranties set forth in this paragraph do not apply to statements
or omissions in the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through you expressly for use therein.
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(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business as a
foreign corporation and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(d) Each subsidiary of the Company has been duly
organized, is validly existing as a corporation or a limited liability
company in good standing under the laws of the jurisdiction of its
organization, has the corporate or limited liability company power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business as a
foreign corporation or a limited liability company and is in good
standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole; all of the issued shares of capital
stock or other equity interests of each subsidiary of the Company have
been duly and validly authorized and issued, are fully paid and
non-assessable, or in the case of any subsidiary that is not a
corporation, all necessary actions under the limited liability company
act or the limited partnership act under which the subsidiary was
organized and the subsidiary's constituent documents have been taken
for the purchase of such subsidiary's equity interests and, other than
in the case of Nordural (which is not a subsidiary of the Company as of
the date hereof), are owned by the Company either directly or through
wholly-owned subsidiaries, free and clear of all liens, encumbrances,
equities or claims except for (A) encumbrances on the Company's ability
to dispose of the stock of Berkeley Aluminum, Inc. pursuant to the
Amended and Restated Owners' Agreement dated as of January 26, 1996, as
amended heretofore, governing the use and ownership of the Mt. Xxxxx
facility, (B) the rights of Glencore Ltd. and Glencore Acquisition I
LLC under that certain Security Agreement dated April 1, 2003
respecting Xxxxxxx Aluminum LLC's membership interest in Century
Aluminum of Kentucky LLC, and (C) liens, encumbrances, equities or
claims under the Indenture dated April 2, 2001 relating to the
Company's 11 3/4% Senior Secured First Mortgage Notes due 2008 (the
"INDENTURE").
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
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(f) Each of the Transaction Documents (other than this
Agreement) has been or will be duly authorized by the Company and each
of its subsidiaries party thereto, and when executed and delivered by
the Company or such subsidiaries, will be a valid and binding
obligation of each such person, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally and general principles of equity
(regardless of whether considered in an action at law or in equity).
(g) The authorized capital stock of the Company conforms
as to legal matters to the description thereof contained in the
Prospectus.
(h) The shares of Common Stock (including the Shares to
be sold by the Selling Shareholders) outstanding prior to the issuance
of the Shares to be sold by the Company have been duly authorized and
are validly issued, fully paid and non-assessable.
(i) The Shares to be sold by the Company have been duly
authorized and, when issued and delivered in accordance with the terms
of this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject to
any preemptive or similar rights.
(j) The execution and delivery by the Company and each of
its subsidiaries of, and the performance by the Company and each of its
subsidiaries of its obligations under, the Transaction Documents, and
the consummation of the Transactions, will not contravene any provision
of applicable law or the certificate of incorporation or by-laws or
other constituent documents of the Company or any of its subsidiaries
or any agreement or other instrument binding upon the Company or any of
its subsidiaries that is material to the Company and its subsidiaries,
taken as a whole, or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required to be
obtained by the Company or its subsidiaries for the performance by the
Company of its obligations under the Transaction Documents and the
consummation of the Transactions, except (A) as disclosed in the
Prospectus (including consents required for the Acquisition, as are
contemplated in the Stock Purchase Agreement and disclosed in the
Prospectus) or (B) such as may be required by the securities or Blue
Sky laws of the various states in connection with the offer and sale of
the Shares.
(k) There has not occurred any material adverse change,
or any development involving a prospective material adverse change, in
the
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condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(l) There are no legal or governmental proceedings
pending or threatened to which the Company or any of its subsidiaries
is a party or to which any of the properties of the Company or any of
its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(m) Each preliminary prospectus or Prospectus Supplement
filed as part of the Registration Statement as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material respects with
the Securities Act and the applicable rules and regulations of the
Commission thereunder.
(n) The Company is not, and after giving effect to the
offering and sale of the Shares by the Company and the application of
the proceeds thereof as described in the Prospectus will not be,
required to register as an "investment company" as such term is defined
in the Investment Company Act of 1940, as amended.
(o) The Company and its subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("ENVIRONMENTAL LAWS"), (ii) have received
all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses
and (iii) are in compliance with all terms and conditions of any such
permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(p) Other than as disclosed in the Prospectus, the
Company and its subsidiaries do not have any costs or liabilities
associated with Environmental Laws (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license
or approval,
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any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(q) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company or to
require the Company to include such securities with the Shares
registered pursuant to the Registration Statement.
(r) The Company has duly notified the NASDAQ Stock Market
to list the Shares for quotation on the NASDAQ Stock Market.
(s) Neither the Company nor any of its subsidiaries (i)
is in violation of its respective charter or by-laws or similar
organizational documents or (ii) is in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any bond, debenture, note or other evidence of
indebtedness, or in any lease, contract, indenture, deed of trust, loan
agreement, joint venture or other agreement or instrument to which the
Company or any of its subsidiaries is a party, or by which it or any of
its subsidiaries or their respective properties may be bound, except
where such defaults would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole; and neither the Company nor any of its subsidiaries is in
violation of any law, order, rule, regulation, writ, injunction,
judgment or decree of any court, government or governmental agency or
body, domestic or foreign, having jurisdiction over the Company or any
of its subsidiaries or over their respective properties except where
such violations would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(t) (i) Each of the contracts set forth on Schedule II
(the "MATERIAL OPERATING CONTRACTS") has been duly authorized, executed
and delivered by, and constitutes a valid and binding obligation of,
the Company and/or its subsidiaries party thereto; (ii) each of the
Material Operating Contracts is in full force and effect as of the date
hereof and, as of the Closing Date, will be in full force and effect;
and (iii) neither the Company nor any of its subsidiaries, nor, to the
knowledge of the Company, any of the other parties thereto, is, or with
the giving of notice or lapse of time or both would be, in violation of
or in default under any of the Material Operating Contracts, except for
violations and defaults which singly or in the aggregate would not have
a material adverse effect on the Company and its subsidiaries, taken as
a whole.
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(u) Subsequent to the date as of which information is
given in the Prospectus (exclusive of any amendment or supplement
thereto subsequent to the date of this Agreement), (i) the Company and
its subsidiaries have not incurred any material liability or
obligation, direct or contingent, nor entered into any material
transaction not in the ordinary course of business; (ii) the Company
has not purchased any of its outstanding capital stock (other than
through withholding shares upon the vesting of performance shares), nor
declared, paid or otherwise made any dividend or distribution of any
kind on its capital stock other than ordinary and customary dividends;
and (iii) there has not been any material change in the capital stock,
short-term debt or long-term debt of the Company and its subsidiaries,
except in each case as described in the Prospectus.
(v) Except as described in the Prospectus, the Company
and its subsidiaries have good and marketable title in fee simple to
all real property owned by them and good and marketable title to all
personal property owned by them, in each case which is material to the
business of the Company and its subsidiaries, taken as a whole, in each
case free and clear of all liens, encumbrances and defects except such
liens, encumbrances and defects that do not in the aggregate materially
affect the value of such property and do not materially interfere with
the use made and proposed to be made of such property by the Company
and its subsidiaries; and any real property and buildings held under
lease by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not materially interfere with the use made and proposed
to be made of such property and buildings by the Company and its
subsidiaries, in each case except as described in the Prospectus.
(w) The Company and its subsidiaries own or possess, or
can acquire on reasonable terms, all material patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and
trade names currently employed by them in connection with the business
now operated by them, and neither the Company nor any of its
subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any of the foregoing
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(x) No material labor dispute with the employees of the
Company or any of its subsidiaries exists, or, to the knowledge of the
Company, is imminent; and the Company is not aware of any existing,
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threatened or imminent labor disturbances by the employees of any of
its principal suppliers, manufacturers or contractors that could,
singly or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(y) The Company and each of its subsidiaries are insured
by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; neither the Company nor any of
its subsidiaries has been refused any material insurance coverage
sought or applied for; and neither the Company nor any of its
subsidiaries has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary
to continue its business at a cost that would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole,
except as described in the Prospectus.
(z) Except as described in the Prospectus, the Company
and its subsidiaries possess all certificates, authorizations and
permits issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses, and have
made all declarations and filings with, all federal, state, local and
other governmental authorities (including foreign regulatory agencies),
all self-regulatory organizations and all courts and other tribunals,
domestic or foreign, necessary to own or lease, as the case may be, and
to operate its properties and to carry on its business as conducted as
of the date hereof, except such as would not, singly or in the
aggregate, result in a material adverse effect on the Company and its
subsidiaries, taken as a whole, and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse
effect on the Company and its subsidiaries, taken as a whole, except as
described in the Prospectus.
(aa) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering.
(bb) The Company and each of its subsidiaries (other than
Nordural which is addressed in clause (cc) below) maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's
general or
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specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(cc) Nothing has come to the Company's attention to cause
it to believe that Nordural does not maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(dd) The financial statements of the Company included in
the Prospectus present fairly in all material respects the consolidated
financial position of the Company and its existing subsidiaries as of
the dates shown and their results of operations and cash flows for the
periods shown, and such financial statements have been prepared in
conformity with generally accepted accounting principles in the United
States applied on a consistent basis; the financial statements of
Nordural included in the Prospectus present fairly in all material
respects the financial position of Nordural as of the dates shown and
its results of operations and cash flows for the periods shown, and
such financial statements have been prepared in conformity with
generally accepted accounting principles in Iceland applied on a
consistent basis (with a reconciliation to generally accepted
accounting principles in the United States that presents the
information set forth therein fairly in all material respects and has
been prepared in conformity with the applicable rules and regulations
of the Commission); and the assumptions used in preparing the pro forma
financial statements included in the Prospectus provide a reasonable
basis for presenting the material effects directly attributable to the
transactions or events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement
amounts.
(ee) As of the date hereof, there are no outstanding
subscriptions, rights, warrants, options, calls, convertible securities
or
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commitments of sale granted or issued by the Company or any of its
subsidiaries relating to or entitling any person to purchase or
otherwise to acquire any shares of the capital stock of the Company or
any of its subsidiaries, except (i) as otherwise disclosed in the
Registration Statement and (ii) the issuance of 10,000 options to
Xxxxxxx Xxxxxxx.
(ff) (i) Deloitte & Touche LLP, who have certified certain
financial statements of the Company and its subsidiaries and (ii) to
the best of the Company's knowledge, PricewaterhouseCoopers hf, who
have certified certain financial statements of Nordural are each
independent public accountants as required by the Securities Act and
the rules and regulations of the Commission thereunder;
(gg) The Company is not engaged in discussions regarding
any possible acquisitions or dispositions that are required to be
described in the Registration Statement or the Prospectus and are not
so described.
(hh) Schedule III hereto is a true and complete list of
all of the Company's significant subsidiaries (as defined in Rule
1-02(w) of Regulation S-X) as of the date of this Agreement (the
"SIGNIFICANT SUBSIDIARIES").
(ii) The agreements and other documents filed as exhibits
to the Company's Annual Report on Form 10-K for the year ended December
31, 2003 or filed as an exhibit to any subsequent filing under the
Exchange Act constitute all of the outstanding material contracts of
the Company and its subsidiaries taken as a whole required to be filed
as exhibits under Item 601 of Regulation S-K.
2. Representations and Warranties of the Selling Shareholders.
Each Selling Shareholder severally represents and warrants to and agrees with
each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and
delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by such Selling
Shareholder of, and the performance by such Selling Shareholder of its
obligations under, this Agreement, the Custody Agreement signed by such
Selling Shareholder and Computershare Investor Services, L.L.C., as
Custodian, relating to the deposit of the Shares to be sold by such
Selling Shareholder (the "CUSTODY AGREEMENT") and the Power of Attorney
appointing certain individuals as such Selling Shareholder's
attorneys-in-fact to the extent set forth therein, relating to the
transactions contemplated hereby and by the Registration Statement (the
"POWER OF ATTORNEY") will not contravene any provision of applicable
law, or the constituent documents of such Selling
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Shareholder, or any agreement or other instrument binding upon such
Selling Shareholder or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over such
Selling Shareholder, and no consent, approval, authorization or order
of, or qualification with, any governmental body or agency is required
for the performance by such Selling Shareholder of its obligations
under this Agreement or the Custody Agreement or Power of Attorney of
such Selling Shareholder, except such as may be required by the
securities or Blue Sky laws of the various states in connection with
the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date
will have, valid title to, or a valid "security entitlement" within the
meaning of Section 8-501 of the New York Uniform Commercial Code in
respect of, the Shares to be sold by such Selling Shareholder free and
clear of all security interests, claims, liens, equities (subject to
the beneficial interests of the plan beneficiaries) or other
encumbrances and the legal right and power, and all authorization and
approval required by law, to enter into this Agreement, the Custody
Agreement and the Power of Attorney and to sell, transfer and deliver
the Shares to be sold by the Selling Shareholder or a security
entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have
been duly authorized, executed and delivered by such Selling
Shareholder and are valid and binding agreements of such Selling
Shareholder.
(e) Upon payment for the Shares to be sold by such
Selling Shareholder pursuant to this Agreement, delivery of such
Shares, as directed by the Underwriters, to Cede & Co. ("CEDE") or such
other nominee as may be designated by the Depository Trust Company
("DTC"), registration of such Shares in the name of Cede or such other
nominee and the crediting of such Shares on the books of DTC to
securities accounts of the Underwriters (assuming that neither DTC nor
any such Underwriter has notice of any adverse claim (within the
meaning of Section 8-105 of the New York Uniform Commercial Code (the
"UCC")) to such Shares), (A) DTC shall be a "protected purchaser" of
such Shares within the meaning of Section 8-303 of the UCC, (B) under
Section 8-501 of the UCC, the Underwriters will acquire a valid
security entitlement in respect of such Shares and (C) no action based
on any "adverse claim", within the meaning of Section 8-102 of the UCC,
to such Shares may be asserted against the Underwriters with respect to
such security entitlement; for purposes of this representation, such
Selling Shareholder may assume that when such payment, delivery and
crediting occur, (x) such Shares will have been registered in the name
of Cede or another nominee designated by DTC, in each case on the
Company's share registry in accordance with its certificate of
incorporation, bylaws and
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applicable law, (y) DTC will be registered as a "clearing corporation"
within the meaning of Section 8-102 of the UCC and (z) appropriate
entries to the accounts of the several Underwriters on the records of
DTC will have been made pursuant to the UCC.
(f) Such Selling Shareholder has no reason to believe
that the representations and warranties of the Company contained in
Section 1 are not true and correct, is familiar with the Registration
Statement and Prospectus and has no knowledge of any material fact,
condition or information not disclosed in the Prospectus that has had,
or may have, a material adverse effect on the Company and its
subsidiaries, taken as a whole. Such Selling Shareholder is not
prompted by any information concerning the Company or its subsidiaries
which is not set forth in the Prospectus to sell its Shares pursuant to
this Agreement.
(g) (i) The Registration Statement, when it became
effective, did not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) the
Registration Statement and the Prospectus comply, and, as amended or
supplemented, if applicable, will comply in all material respects with
the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iii) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that the representations
and warranties set forth in this paragraph 2(g) are limited to
statements or omissions made in reliance upon information relating to
such Selling Shareholder furnished to the Company in writing by such
Selling Shareholder expressly for use in the Registration Statement,
the Prospectus or any amendments or supplements thereto.
(h) The statements in the Prospectus under the captions
"Summary - Selling Shareholders" and "Selling Shareholders" insofar as
such statements constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the information called
for with respect to such legal matters, documents and proceedings and
fairly summarize the matters referred to therein.
3. Agreements to Sell and Purchase. Each Seller, severally and
not jointly, hereby agrees to sell to the several Underwriters, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally
and not jointly, to purchase from such Seller at $23,275 a share (the "PURCHASE
PRICE") the number of Firm
13
Shares (subject to such adjustments to eliminate fractional shares as you may
determine) that bears the same proportion to the number of Firm Shares to be
sold by such Seller as the number of Firm Shares set forth in Schedule I hereto
opposite the name of such Underwriter bears to the total number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have the
right to purchase, severally and not jointly, up to 950,000 Additional Shares at
the Purchase Price. You may exercise this right on behalf of the Underwriters in
whole or from time to time in part by giving written notice not later than 30
days after the date of this Agreement. Any exercise notice shall specify the
number of Additional Shares to be purchased by the Underwriters and the date on
which such shares are to be purchased. Each purchase date must be at least one
business day after the written notice is given and may not be earlier than the
closing date for the Firm Shares nor later than ten business days after the date
of such notice. Additional Shares may be purchased as provided in Section 5
hereof solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. On each day, if any, that Additional
Shares are to be purchased (an "OPTION CLOSING DATE"), each Underwriter agrees,
severally and not jointly, to purchase the number of Additional Shares (subject
to such adjustments to eliminate fractional shares as you may determine) that
bears the same proportion to the total number of Additional Shares to be
purchased on such Option Closing Date as the number of Firm Shares set forth in
Schedule I hereto opposite the name of such Underwriter bears to the total
number of Firm Shares.
Each Seller hereby agrees that, without the prior written consent of
Credit Suisse First Boston LLC and Xxxxxx Xxxxxxx & Co. Incorporated on behalf
of the Underwriters, it will not, during the period ending 90 days after the
date of the Prospectus, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, lend, or otherwise transfer or dispose
of, directly or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or (ii) enter
into any swap or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of the Common Stock, whether
any such transaction described in clause (i) or (ii) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise.
The restrictions contained in the preceding paragraph shall not apply
to (A) the Shares to be sold hereunder, (B) the grant or award of stock options,
performance shares or other stock-based compensation under the Company's 1996
Stock Incentive Plan or Non-Employee Directors Stock Option Plan as in effect on
the date hereof, (C) the issuance by the Company of shares of Common Stock upon
the exercise of an option or warrant or the conversion of a security or
14
upon the vesting of performance shares or restricted stock outstanding on the
date hereof and disclosed in the Prospectus or (D) transactions by any person
other than the Company relating to shares of Common Stock or other securities
acquired in open market transactions after the completion of the offering of the
Shares. In addition, each Selling Shareholder, agrees that, without the prior
written consent of Credit Suisse First Boston LLC and Xxxxxx Xxxxxxx & Co.
Incorporated on behalf of the Underwriters, it will not, during the period
ending 90 days after the date of the Prospectus, make any demand for, or
exercise any right with respect to, the registration of any shares of Common
Stock or any security convertible into or exercisable or exchangeable for Common
Stock.
4. Terms of Public Offering. The Sellers are advised by you that
the Underwriters propose to make a public offering of their respective portions
of the Shares as soon after this Agreement has become effective as in your
judgment is advisable. The Sellers are further advised by you that the Shares
are to be offered to the public initially at $24.50 a share (the "PUBLIC
OFFERING PRICE") and to certain dealers selected by you at a price that
represents a concession not in excess of $0.735 a share under the Public
Offering Price, and that any Underwriter may allow, and such dealers may
reallow, a concession, not in excess of $0.10 a share, to any Underwriter or to
certain other dealers.
5. Payment and Delivery. Payment for the Firm Shares to be sold
by each Seller shall be made to such Seller in Federal or other funds
immediately available in New York City against delivery of such Firm Shares for
the respective accounts of the several Underwriters at 10:00 a.m., New York City
time, on April 14, 2004, or at such other time on the same or such other date,
not later than April 21, 2004, as shall be designated in writing by you. The
time and date of such payment are hereinafter referred to as the "CLOSING DATE."
Payment for any Additional Shares shall be made to the Company in
Federal or other funds immediately available in New York City against delivery
of such Additional Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on the date specified in the
corresponding notice described in Section 3 or at such other time on the same or
on such other date, in any event not later than May 19, 2004, as shall be
designated in writing by you.
The Firm Shares and Additional Shares shall be registered in such names
and in such denominations as you shall request in writing not later than one
full business day prior to the Closing Date or the applicable Option Closing
Date, as the case may be. The Firm Shares and Additional Shares shall be
delivered to you on the Closing Date or an Option Closing Date, as the case may
be, for the respective accounts of the several Underwriters, with any transfer
taxes payable in connection with the transfer of the Shares to the Underwriters
duly paid, against payment of the Purchase Price therefor.
15
6. Conditions to the Underwriters' Obligations. The obligations
of the Sellers to sell the Shares to the Underwriters and the several
obligations of the Underwriters to purchase and pay for the Shares on the
Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date:
(i) there shall not have occurred any
downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a
possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or
any development involving a prospective change, in the
condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent
to the date of this Agreement) that, in your judgment, is
material and adverse and that makes it, in your judgment,
impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing
Date a certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in Section 6(a)(i)
above and to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of the
Closing Date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing
Date an opinion of Xxxxxx, Xxxxxx-Xxxxxxx, Colt & Molse LLP, outside
counsel for the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to
conduct its business as
16
described in the Prospectus and is duly qualified to transact
business as a foreign corporation and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole;
(ii) each of the Significant Subsidiaries, is
validly existing as a corporation, limited liability company
or limited partnership in good standing under the laws of the
jurisdiction of its organization, has the corporate, limited
liability company or limited partnership power and authority
to own its property and to conduct its business described in
the Prospectus and is duly qualified to transact business as a
foreign corporation, limited liability company or limited
partnership and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(iii) the authorized capital stock of the Company
conforms as to legal matters in all material respects to the
description thereof contained in the Prospectus;
(iv) all of the issued shares of capital stock of
each Significant Subsidiary of the Company that is a
corporation are owned of record by the Company either directly
or through wholly-owned subsidiaries, free and clear of any
perfected security interests;
(v) the Shares to be sold by the Company have
been duly authorized and, when issued and delivered in
accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of
such Shares will not be subject to any preemptive or, to the
knowledge of such counsel, similar rights;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company;
(vii) the execution and delivery by the Company
and each of its subsidiaries of, and the performance by the
Company and each of its subsidiaries of their obligations
under, the
17
Transaction Documents to which any of the Company or its
subsidiaries is a party and the consummation of the
Acquisition, the Glencore Conversion and the application of
the use of proceeds as set forth in the first four bullets in
the Prospectus under the caption "Use of Proceeds", will not
contravene any provision of applicable law or the certificate
of incorporation or by-laws or other constitutive documents of
the Company or any of its Significant Subsidiaries or, to the
best of such counsel's knowledge after due inquiry, any
agreement or other instrument binding upon the Company or any
of its subsidiaries that has been filed or incorporated by
reference as an exhibit to the Company's Annual Report on Form
10-K for the year ended December 31, 2003, or, to such
counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
the Company or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any
governmental body or agency is required for the performance by
the Company of its obligations under the Transaction Documents
or the consummation of the Transactions, except (i) the
expiration of the applicable waiting period under the HSR Act
with respect to the Glencore Conversion, (ii) as disclosed in
the Prospectus or (iii) such as may be required by the
securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares (as to which
such counsel need express no opinion), provided that in
rendering the opinion under this clause (vii), such counsel
(A) may rely upon a certificate of an officer of the Company
with respect to the Company's compliance with financial
covenants under the Indenture and;(B) assume that the
Acquisition and the funding of the planned Nordural expansion
will be effected through Unrestricted Subsidiaries (as defined
in the Indenture).
(viii) the statements relating to legal matters,
documents or proceedings included in (A) the Prospectus under
the captions "The Planned Nordural Acquisition," "Business -
Legal Proceedings," "Description of Capital Stock,"
"Description of Certain Indebtedness" and "Underwriters" and
(B) the Registration Statement in Item 15, in each case
insofar as such statements constitute summaries of legal
matters, documents or proceedings referred to therein fairly
summarize in all material respects such matters, documents or
proceedings;
(ix) such counsel does not know of any legal or
governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or to which any
of
18
the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or of any
statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required;
(x) the Company is not, and after giving effect
to the offering and sale of the Shares by the Company and the
application of the proceeds thereof as described in the
Prospectus will not be, required to register as an "investment
company" as such term is defined in the Investment Company Act
of 1940, as amended;
(xi) each of the Transaction Documents (other
than this Agreement) has been duly authorized, executed and
delivered by the Company and each subsidiary organized under
the laws of Delaware (a "DELAWARE SUBSIDIARY") party thereto,
and assuming each such Transaction Document has been duly
authorized, executed and delivered by each other subsidiary
party thereto, is a valid and binding agreement of, the
Company and each of its subsidiaries party thereto,
enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally and general principles of equity;
provided that such counsel may assume that the governing law
of any Transaction Document governed by the law of any
jurisdiction other than New York is the same as the law of New
York; and
(xii) there are no contracts, agreements or
understandings known to such counsel between the Company and
any person granting such person the right to require the
Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned
by such person or to require the Company to include such
securities in the securities registered pursuant to the
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the
Company under the Act.
In addition, such counsel shall state in a separate letter that such
counsel has participated in conferences with officers and other representatives
of the Company at which conferences such counsel discussed the contents of the
Registration Statement, the Prospectus and related matters, and nothing has come
to the attention of such counsel that causes such counsel to believe that (A)
each
19
document filed pursuant to the Exchange Act and incorporated by reference in the
Registration Statement and the Prospectus (except for the financial statements
and financial schedules and other financial and statistical data included
therein or omitted therefrom, as to which such counsel need not express any
comment) did not comply as to form when filed in all material respects with the
requirements of the Exchange Act and the applicable rules and regulations of the
Commission thereunder, (B) the Registration Statement or the Prospectus (except
for the financial statements and financial schedules and other financial and
statistical data included therein or omitted therefrom, or omitted therefrom as
to which such counsel need not express any comment) do not comply as to form in
all material respects with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder, (C) the
Registration Statement or the Prospectus included therein (except for the
financial statements and financial schedules and other financial and statistical
data included therein or omitted therefrom, as to which such counsel need not
express any comment) at the time the Registration Statement became effective
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or (D) the Prospectus (except for the financial statements and
financial schedules and other financial and statistical data included therein or
omitted therefrom, as to which such counsel need not express any comment) as of
its date or as of the Closing Date contained or contains an untrue statement of
a material fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(d) The Underwriters shall have received on the Closing
Date an opinion of Xxxxxx X. Kitchen, Executive Vice President, General
Counsel and Chief Administrative Officer of the Company, dated the
Closing Date to the effect that:
(i) the shares of Common Stock (including the
Shares to be sold by the Selling Shareholders) outstanding
prior to the issuance of the Shares to be sold by the Company
have been duly authorized and are validly issued, fully paid
and non-assessable;
(ii) all of the issued shares of capital stock or
other equity interests of each subsidiary of the Company have
been duly and validly authorized and issued, are fully paid
and non-assessable, or in the case of any subsidiary that is
not a corporation, all necessary actions under the limited
liability company act or the limited partnership act under
which the subsidiary was organized and the subsidiary's
constituent documents have been taken for the purchase of such
subsidiary's equity interests and are owned by the Company
either directly or through wholly-owned subsidiaries, free and
clear of all liens,
20
encumbrances, equities or claims except for (A) encumbrances
on the Company's ability to dispose of the stock of Berkeley
Aluminum, Inc. pursuant to the Amended and Restated Owners'
Agreement dated as of January 26, 1996, as amended heretofore,
governing the use and ownership of the Mt. Xxxxx facility, (B)
the rights of Glencore Ltd. and Glencore Acquisition I LLC
under that certain Security Agreement dated April 1, 2003
respecting Xxxxxxx Aluminum LLC's membership interest in
Century Aluminum of Kentucky LLC, and (C) liens, encumbrances,
equities or claims under the Indenture;
(iii) each of the Material Operating Contracts
(other than those numbered 14 through 19 to which such counsel
need not express any opinion) has been duly authorized,
executed and delivered by, and constitutes a valid and binding
obligation of, the Company and/or its subsidiaries party
thereto, as applicable; each of the Material Operating
Contracts (other than those numbered 14 through 19 to which
such counsel need not express any opinion) is in full force
and effect as of the date hereof;
(iv) there are no outstanding subscriptions,
rights, warrants, options, calls, convertible securities or
commitments of sale granted or issued by the Company or any of
its subsidiaries relating to or entitling any person to
purchase or otherwise to acquire any shares of the capital
stock of the Company or any of its subsidiaries, except (A)
performance shares awarded by the Compensation Committee of
the Company's Board of Directors on or about Xxxxx 00, 0000,
(X) the issuance of 10,000 options to Xxxxxxx Xxxxxxx or (C)
as otherwise disclosed in the Registration Statement;
(v) the Company and its subsidiaries (i) are in
compliance with any and all applicable federal environmental
laws of the United States of America ("ENVIRONMENTAL LAWS"),
(ii) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals
would not, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
21
In addition, such counsel shall state in a separate letter that such
counsel has participated in conferences with officers and other representatives
of the Company at which conferences such counsel discussed the contents of the
Registration Statement, the Prospectus and related matters, and nothing has come
to the attention of such counsel that causes such counsel to believe that (A)
each document filed pursuant to the Exchange Act and incorporated by reference
in the Registration Statement and the Prospectus (except for the financial
statements and financial schedules and other financial and statistical data
included therein or omitted therefrom, as to which such counsel need not express
any comment) did not comply as to form when filed in all material respects with
the requirements of the Exchange Act and the applicable rules and regulations of
the Commission thereunder, (B) the Registration Statement or the Prospectus
(except for the financial statements and financial schedules and other financial
and statistical data included therein or omitted therefrom, or omitted therefrom
as to which such counsel need not express any comment) do not comply as to form
in all material respects with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder, (C) the
Registration Statement or the Prospectus included therein (except for the
financial statements and financial schedules and other financial and statistical
data included therein or omitted therefrom, as to which such counsel need not
express any comment) at the time the Registration Statement became effective
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or (D) the Prospectus (except for the financial statements and
financial schedules and other financial and statistical data included therein or
omitted therefrom, as to which such counsel need not express any comment) as of
its date or as of the Closing Date contained or contains an untrue statement of
a material fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(e) The Underwriters shall have received on the Closing
Date an opinion of Xxxxxx, Xxxxxx-Xxxxxxx, Colt & Molse LLP, counsel
for the Selling Shareholders, dated the Closing Date, to the effect
that:
(i) this Agreement has been duly authorized,
executed and delivered by or on behalf of the Selling
Shareholders;
(ii) the execution and delivery by the Selling
Shareholders of, and the performance by the Selling
Shareholders of their respective obligations under, this
Agreement and their respective Custody Agreements and Powers
of Attorney will not contravene any provision of applicable
law, or the constituent documents of each respective Selling
Shareholder, or, to such counsel's knowledge, any agreement or
other instrument binding
22
upon each Selling Shareholder or, to such counsel's knowledge,
any judgment, order or decree of any governmental body, agency
or court having jurisdiction over each Selling Shareholder,
and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is
required for the performance by the Selling Shareholders of
their obligations under this Agreement or their respective
Custody Agreement or Power of Attorney, except such as may be
required by the securities or Blue Sky laws of the various
states in connection with offer and sale of the Shares (as to
which counsel need express no opinion); provided that such
counsel expresses no opinion in respect of Xxxxx Xxxxxxx Trust
Company, as trustee for each Selling Shareholder;
(iii) each Selling Shareholder has the right and
power under its constituent documents to enter into this
Agreement and its respective Power of Attorney and to sell,
transfer and deliver the Shares to be sold by such Selling
Shareholder or a security entitlement in respect of such
Shares;
(iv) the Custody Agreement and the Power of
Attorney of each Selling Shareholder have been duly
authorized, executed and delivered by such Selling Shareholder
and are valid and binding agreements of such Selling
Shareholder; and
(v) upon payment for the Shares to be sold by
the Selling Stockholders pursuant to this Agreement, delivery
of such Shares, as directed by the Underwriters, to Cede or
such other nominee as may be designated by DTC, registration
of such Shares in the name of Cede or such other nominee and
the crediting of such Shares on the books of DTC to securities
accounts of the Underwriters (assuming that neither DTC nor
any such Underwriter has notice of any adverse claim within
the meaning of Section 8-105 of the UCC to such Shares), (A)
DTC shall be a "protected purchaser" of such Shares within the
meaning of Section 8-303 of the UCC, (B) under Section 8-501
of the UCC, the Underwriters will acquire a valid security
entitlement in respect of such Shares and (C) to the extent
governed by the UCC, no action based on any "adverse claim"
(within the meaning of Section 8-102 of the UCC) to such
Shares may be asserted against the Underwriters with respect
to such security entitlement; in giving this opinion, counsel
for the Selling Shareholder may assume that when such payment,
delivery and crediting occur, (w) such Shares will have been
registered in the name of Cede or another nominee designated
by DTC, in each
23
case on the Company's share registry in accordance with its
certificate of incorporation, bylaws and applicable law, (x)
DTC will be registered as a "clearing corporation" within the
meaning of Section 8-102 of the UCC, (y) appropriate entries
to the accounts of the several Underwriters on the records of
DTC will have been made pursuant to Section 8-501(b) of the
UCC and (z) DTC's jurisdiction for purposes of Section
8-110(e) of the UCC is the State of New York.
(vii) the statements in the Prospectus under the
captions "Summary - Selling Shareholders" and "Selling
Shareholders" insofar as such statements constitute summaries
of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with
respect to such legal matters, documents and proceedings and
fairly summarize in all material respects the matters referred
to therein.
(f) an opinion of Fulltingi Legal Services, outside
Icelandic counsel for the Company, dated the Closing Date, to the
effect that:
(i) Nordural has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on
Nordural;
(ii) all of the issued shares of capital stock of
Nordural (including the shares to be acquired directly or
indirectly by the Company pursuant to the Stock Purchase
Agreement) have been duly authorized and are validly issued,
fully paid and non-assessable and following the closing of the
Transactions will be owned by the Company directly or
indirectly, free and clear of all liens, encumbrances,
equities or claims, except as otherwise disclosed in the
Prospectus;
(iii) the execution and delivery by Nordural of,
and the performance by Nordural of its obligations under, the
Acquisition Documents to which it is a party, and the
consummation of the Transactions, will not contravene any
provision of applicable law or the certificate of
incorporation or by-laws of Nordural
24
(provided that some formal amendments may have to be made to
the Enabling Act no. 62/1997 as regards the corporate form of
Nordural) or, any agreement or other instrument binding upon
Nordural that is material to Nordural, or, to the best of such
counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
Nordural;
(iv) to the best of such counsel's knowledge,
there are no legal or governmental proceedings pending or
threatened to which Nordural is a party or to which any of the
properties of Nordural is subject except as otherwise
disclosed in the Prospectus or of any statutes, regulations,
contracts or other documents that are material to Nordural or
the operation of Nordural that are not otherwise described in
the Prospectus;
(v) Nordural (i) is in compliance with any and
all applicable Icelandic environmental laws ("ENVIRONMENTAL
LAWS"), (ii) has received all permits, licenses or other
approvals required of it under applicable Environmental Laws
to conduct its business and (iii) is in compliance with all
terms and conditions of any such permit, license or approval,
except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in
the aggregate, have a material adverse effect on Nordural;
(vi) each of the Material Operating Contracts
(other than those numbered 1 through 13 to which such counsel
need not express any opinion) has been duly authorized,
executed and delivered by, and each of the Material Operating
Contracts (other than those numbered 1 through 13, 16 and 19
to which such counsel need not express any opinion)
constitutes a valid and binding obligation of, Nordural; each
of the Material Operating Contracts (other than those numbered
1 through 13, 16 and 19 to which such counsel need not express
any opinion) is in full force and effect as of the date
hereof.
(g) The Underwriters shall have received on the Closing
Date an opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters,
dated the Closing Date, covering the matters referred to in Sections
6(c)(v), 6(c)(vi), 6(c)(viii) (but only as to the statements in the
Prospectus under "Underwriters") and clauses (B), (C) and (D) of the
last paragraph of Section 6(c) above.
25
With respect to clauses (B), (C) and (D) of the last paragraph
of Section 6(c) above, Xxxxx Xxxx & Xxxxxxxx may state that their
beliefs are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements
thereto (other than the documents incorporated by reference) and upon
review and discussion of the contents thereof (including documents
incorporated by reference), but are without independent check or
verification, except as specified. With respect to Section 6(e) above,
Xxxxxx, Xxxxxx-Xxxxxxx, Colt & Molse LLP, may rely with respect to
factual matters and to the extent such counsel deems appropriate, upon
the representations of each Selling Shareholder contained herein and in
the Custody Agreement and Power of Attorney of each Selling Shareholder
and in other documents and instruments; provided that copies of the
Custody Agreement and Power of Attorney and of any such other documents
and instruments shall be delivered to you and shall be in form and
substance satisfactory to your counsel.
The opinions of Xxxxxx, Xxxxxx-Xxxxxxx, Colt & Molse LLP
described in Sections 6(c) and 6(e) above shall be rendered to the
Underwriters at the request of the Company or the Selling Shareholders,
as the case may be, and shall so state therein.
(h) The Underwriters shall have received, on each of the
date hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Underwriters, from (i) Deloitte & Touche LLP, independent public
accountants for the Company and (ii) PricewaterhouseCoopers hf,
independent accountants for Nordural, each containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference
into the Registration Statement and the Prospectus; provided that the
letter delivered on the Closing Date shall use a "cut-off date" not
earlier than the date hereof.
(i) The "lock-up" agreements, each substantially in the
form of Exhibit A hereto, between you and certain shareholders,
officers and directors of the Company relating to sales and certain
other dispositions of shares of Common Stock or certain other
securities, delivered to you on or before the date hereof, shall be in
full force and effect on the Closing Date.
(j) The Credit Amendment and the Stock Purchase
Agreement, and any other Acquisition Documents duly authorized,
executed and delivered prior to the Closing Date, shall be in full
force and effect on the Closing Date.
26
(k) The Underwriters shall have received on the Closing
Date a certificate, dated the Closing Date and signed by an executive
officer of the Company, stating that the Company has no reason to
believe that the Acquisition will not be consummated on the terms set
forth in the Prospectus prior to the expiration of the Stock Purchase
Agreement.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the delivery to you on the applicable Option
Closing Date of such documents as you may reasonably request with respect to the
good standing of the Company, the due authorization and issuance of the
Additional Shares to be sold on such Option Closing Date and other matters
related to the issuance of such Additional Shares.
7. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, three signed
copies of the Registration Statement (including exhibits thereto and
documents incorporated by reference) and for delivery to each other
Underwriter a conformed copy of the Registration Statement (without
exhibits thereto but including documents incorporated by reference)
and, to furnish to you in New York City, without charge, prior to 10:00
a.m. New York City time on the business day next succeeding the date of
this Agreement and during the period mentioned in paragraph (c) below,
as many copies of the Prospectus, any documents incorporated therein by
reference and any supplements and amendments thereto as you may
reasonably request. The terms "supplement" and "amendment" or "amend"
as used in this Agreement shall include all documents subsequently
filed by the Company with the Commission pursuant to the Exchange Act
that are deemed to be incorporated by reference in the Prospectus.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement and not to file any such proposed
amendment or supplement to which you reasonably object, and to file
with the Commission within the applicable period specified in Rule
424(b) under the Securities Act any prospectus required to be filed
pursuant to such Rule.
(c) If, during such period after the first date of the
public offering of the Shares as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in
27
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if,
in the opinion of counsel for the Underwriters, it is necessary to
amend or supplement the Prospectus to comply with applicable law,
forthwith to prepare, file with the Commission and furnish, at its own
expense, to the Underwriters and to the dealers (whose names and
addresses you will furnish to the Company) to which Shares may have
been sold by you on behalf of the Underwriters and to any other dealers
upon request, either amendments or supplements to the Prospectus so
that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus, as
amended or supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earning statement covering
the twelve-month period ending March 31, 2005 that satisfies the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
(f) To ensure that on the Closing Date, subject to notice
of issuance, the Shares shall have been duly admitted for quotation on
the NASDAQ Stock Market.
(g) The Company will use commercially reasonable efforts
to make or cause to be made the applicable filing under the HSR Act in
connection with the Glencore Conversion as soon as reasonably
practicable after the date hereof.
8. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Sellers agree to
pay or cause to be paid all expenses incident to the performance of their
obligations under this Agreement, including: (i) the fees, disbursements and
expenses of the Company's counsel, the Company's accountants and counsel for the
Selling Shareholders in connection with the registration and delivery of the
Shares under the Securities Act and all other fees or expenses in connection
with the preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the mailing
and delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses related to the
transfer and
28
delivery of the Shares to the Underwriters, including any transfer or other
taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or
Legal Investment memorandum in connection with the offer and sale of the Shares
under state securities laws and all expenses in connection with the
qualification of the Shares for offer and sale under state securities laws as
provided in Section 7(d) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky or Legal Investment
memorandum, (iv) all filing fees and the reasonable fees and disbursements of
counsel to the Underwriters incurred in connection with the review and
qualification of the offering of the Shares by the National Association of
Securities Dealers, Inc., (v) all costs and expenses incident to listing the
Shares on the Nasdaq National Market, (vi) the cost of printing certificates
representing the Shares, (vii) the costs and charges of any transfer agent,
registrar or depositary, (viii) the costs and expenses of the Company relating
to investor presentations on any "road show" undertaken in connection with the
marketing of the offering of the Shares, including, without limitation, expenses
associated with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the road show
presentations with the prior approval of the Company, travel and lodging
expenses of the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the road
show, (ix) the document production charges and expenses associated with printing
this Agreement and (x) all other costs and expenses incident to the performance
of the obligations of the Company hereunder for which provision is not otherwise
made in this Section. It is understood, however, that except as provided in this
Section, Section 9 entitled "Indemnity and Contribution", and the last paragraph
of Section 11 below, the Underwriters will pay all of their costs and expenses,
including fees and disbursements of their counsel, stock transfer taxes payable
on resale of any of the Shares by them and any advertising expenses connected
with any offers they may make.
The provisions of this Section shall not supersede or otherwise affect
any agreement that the Sellers may otherwise have for the allocation of such
expenses among themselves.
9. Indemnity and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, each person, if any, who controls
any Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, and each affiliate of any Underwriter within the
meaning of Rule 405 under the Securities Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the Prospectus
(as amended or
29
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use therein.
(b) Each Selling Shareholder severally agrees to indemnify and
hold harmless each Underwriter, each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, and each affiliate of any Underwriter within the
meaning of Rule 405 under the Securities Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, but only with reference to information
relating to such Selling Shareholder furnished in writing by or on behalf of
such Selling Shareholder expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Selling Shareholders, the directors
of the Company, the officers of the Company who sign the Registration Statement
and each person, if any, who controls the Company or the Selling Shareholders
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
but only with reference to information relating to such Underwriter furnished to
the Company in writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
30
(d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to Section 9(a), 9(b) or 9(c), such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if any, who
control any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act or who are affiliates of any
Underwriter within the meaning of Rule 405 under the Securities Act, (ii) the
fees and expenses of more than one separate firm (in addition to any local
counsel) for the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either such Section and (iii) the fees and expenses of more than one separate
firm (in addition to any local counsel) for the Selling Shareholders and all
persons, if any, who control the Selling Shareholders within the meaning of
either such Section, and that all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate firm for the Underwriters
and such control persons and affiliates of any Underwriters, such firm shall be
designated in writing by Credit Suisse First Boston and Xxxxxx Xxxxxxx & Co.
Incorporated. In the case of any such separate firm for the Company, and such
directors, officers and control persons of the Company, such firm shall be
designated in writing by the Company. In the case of any such separate firm for
the Selling Shareholders and such control persons of the Selling Shareholder,
such firm shall be designated in writing by the persons named as
attorneys-in-fact for the Selling Shareholders under the respective Powers of
Attorney. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to
31
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in Section
9(a), 9(b) or 9(c) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause 9(e)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 9(e)(i) above but also the relative
fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Sellers on the one hand and the Underwriters on the other hand
in connection with the offering of the Shares shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the Shares
(before deducting expenses) received by each Seller and the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate Public
Offering Price of the Shares. The relative fault of the Sellers on the one hand
and the Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Sellers or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 9 are several in proportion to the
respective number of Shares they have purchased hereunder, and not joint. The
several liability of the Selling Shareholders under the contribution agreement
contained in this paragraph
32
shall be limited to an amount equal to the aggregate Public Offering Price of
the Shares sold by such Selling Shareholder under this Agreement.
(f) The Sellers and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in Section 9(e). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 9, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 9 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(g) The indemnity and contribution provisions contained in this
Section 9 and the representations, warranties and other statements of the
Company and the Selling Shareholders contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Underwriter, any
person controlling any Underwriter or any affiliate of any Underwriter, the
Selling Shareholders or any person controlling the Selling Shareholders, or the
Company, its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Shares.
10. Termination. The Underwriters may terminate this Agreement by
notice given by you to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on, or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the Nasdaq National Market,
the Chicago Board of Options Exchange, the Chicago Mercantile Exchange, the
Chicago Board of Trade or the London Metal Exchange, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a material disruption in securities settlement,
payment or clearance services in the United States shall have occurred, (iv) any
moratorium on commercial banking activities shall have
33
been declared by Federal or New York State authorities or (v) there shall have
occurred any outbreak or escalation of hostilities, or any change in financial
markets or any calamity or crisis that, in your judgment, is material and
adverse and which, singly or together with any other event specified in this
clause (v), makes it, in your judgment, impracticable or inadvisable to proceed
with the offer, sale or delivery of the Shares on the terms and in the manner
contemplated in the Prospectus.
11. Effectiveness; Defaulting Underwriters. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Shares that
it has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule I bears to the aggregate number of
Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall the number of
Shares that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 11 by an amount in excess of one-ninth of
such number of Shares without the written consent of such Underwriter. If, on
the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased, and arrangements satisfactory to you, the Company and
the Selling Shareholders for the purchase of such Firm Shares are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter, the Company or the
Selling Shareholders. In any such case either you or the relevant Sellers shall
have the right to postpone the Closing Date, but in no event for longer than
seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. If, on an Option Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase Additional Shares and the aggregate number of
Additional Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Additional Shares to be purchased on such
Option Closing Date, the non-defaulting Underwriters shall have the option to
(i) terminate their obligation hereunder to purchase the Additional Shares to be
sold on such Option Closing Date or (ii) purchase not less than the number of
Additional Shares that such non-defaulting Underwriters would have been
obligated to purchase in the absence of such default. Any action taken under
this
34
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of any Seller to comply with
the terms or to fulfill any of the conditions of this Agreement, or if for any
reason any Seller shall be unable to perform its obligations under this
Agreement, the Sellers will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
12. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
Very truly yours,
CENTURY ALUMINUM COMPANY
By: _______________________________
Name:
Title:
35
CENTURY ALUMINUM EMPLOYEES
RETIREMENT PLAN
By: __________________________________
Attorney-in Fact
CENTURY ALUMINUM OF WEST
VIRGINIA, INC. HOURLY
EMPLOYEES PENSION PLAN
By: __________________________________
Attorney-in Fact
Accepted as of the date hereof
Credit Suisse First Boston LLC
Xxxxxx Xxxxxxx & Co. Incorporated
Acting severally on behalf of themselves and the several Underwriters named in
Schedule I hereto
By: Credit Suisse First Boston LLC
By: _______________________________
Name:
Title:
By: Xxxxxx Xxxxxxx & Co. Incorporated
By: _______________________________
Name:
Title:
36
SCHEDULE I
NUMBER OF FIRM SHARES TO BE
UNDERWRITER PURCHASED
----------------------------------------------- ---------------------------
Credit Suisse First Boston LLC................. 3,724,000
Xxxxxx Xxxxxxx & Co. Incorporated.............. 3,724,000
Bear, Xxxxxxx & Co. Inc........................ 931,000
X.X. Xxxxxx Securities Inc..................... 931,000
Xxxxxx Xxxxxxx Corp............................ 190,000
---------------------------
Total:................................ 9,500,000
===========================
I-1
SCHEDULE II
MATERIAL OPERATING CONTRACTS
1. Molten Aluminum Purchase Agreement between Century Aluminum of West
Virginia, Inc. and Pechiney Rolled Products, LLC, dated September 20,
1999.
2. Aluminum Purchase Agreement between Berkeley Aluminum, Inc. and
Glencore Ltd., dated April 1, 2003, as amended.
3. Aluminum Purchase Agreement between Berkeley Aluminum, Inc. and
Glencore Ltd. dated January 1, 2003
4. Alumina Supply Agreement dated June 26, 1996 between Glencore AG and
Berkeley Aluminum, Inc., as assignee of Glencore Primary Aluminum
Company LLC pursuant to the Assignment and Assumption of Alumina Supply
Agreement between Xstrata Aluminum Corporation and Berkeley Aluminum,
Inc. dated March 31, 2000
5. Alumina Supply Agreement, dated as of January 1, 2001, between Glencore
AG and Berkeley Aluminum, Inc.
6. Alumina Supply Agreement, dated as of January 1, 2001, between Glencore
Ltd. and Century Aluminum of West Virginia, Inc.
7. Electric Power Supply Agreement between Century Aluminum of West
Virginia, Inc. and Ohio Power Company (d.b.a. American Electric Power),
dated May 3, 1997
8. South Carolina Public Service Authority Service Agreement for Large
Power Electric Service between the South Carolina Public Service
Authority and Alumax of South Carolina, Inc., dated July 1, 2003.
9. Amended and Restated Owners' Agreement, dated as of January 26, 1996,
as amended relating to the Mt. Xxxxx facility
10. Aluminum Supply Agreement between Century Aluminum Company and
Southwire Company, dated as of April 2, 2001.
11. Alumina Purchase Agreement between Xxxxxx Aluminum & Chemical
Corporation and Southwire Company, dated December 18, 1997 as amended
heretofore by First Amendment and Second Amendment, as assigned to
Century or one of its subsidiaries pursuant to the assignment and
assumption agreement dated on or about April 1, 2001.
I-1
12. Alumina Purchase Agreement between Xxxxxx Aluminum & Chemical
Corporation and Century Aluminum of Kentucky LLC, dated May 26, 2003.
13. Agreement for Electric Service between Green River Electric Corporation
and Southwire Company, dated July 15, 1998, as amended by Amendment No.
1 dated July 15, 1998, as assigned to Century or one of its
subsidiaries pursuant to the assignment and assumption agreement dated
on or about April 2, 2001.
14. Investment Agreement, dated as of August 7, 1997, by and among the
Government of Iceland, Columbia Ventures Corporation and Nordural hf as
amended by the First Amendment to the Investment Agreement dated June
14, 2000 between the Government of Iceland, Columbia Ventures
Corporation and Nordural hf.
15. Power Agreement, dated as of August 7, 1997, by and between
Landsvirkjun (The National Power Company) and Nordural hf as amended by
the First Amendment to the Power Agreement dated October 29, 1999
between Landsvirkjun and Nordural hf.
16. Alumina Supply, Toll Conversion and Aluminium Metal Supply Agreement,
dated September 23, 1997, by and between Billiton Marketing and Trading
B.V. and Nordural hf, as amended by the First Amendment to the Alumina
Supply, Toll Conversion and Aluminium Metal Supply Agreement, dated
June 16, 2000, by and between Billiton Marketing B.V. and Nordural hf.
17. Harbour Agreement dated August 7, 1997 between The Grundartangi Harbour
Fund and Nordural hf.
18. Smelter Site Agreement dated March 20, 1997 between The State Treasury
of Iceland and Nordural hf as amended by the First Amendment to the
Smelter Site Agreement dated August 7, 1997 between The State Treasury
of Iceland and Nordural hf.
19. Amended and Restated Carbon Anode Blocks Sales and Purchase Agreement,
dated as of June 15, 2000, by and between VAW aluminium AG and Nordural
hf.
I-2
SCHEDULE III
SIGNIFICANT SUBSIDIARIES
Berkeley Aluminum, Inc.
Century Aluminum of West Virginia, Inc.
Century Kentucky, Inc.
Metalsco, Ltd.
Skyliner, Inc.
NSA, Ltd.
Xxxxxxx Aluminum LLC
Century Aluminum of Kentucky LLC
III-1
EXHIBIT A
[FORM OF LOCK-UP LETTER]
____________, 2004
Credit Suisse First Boston LLC
Eleven Madison Avenue
New York, New York 10010
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Dear Sirs and Mesdames:
The undersigned understands that Credit Suisse First Boston LLC
("CSFB") and Xxxxxx Xxxxxxx & Co. Incorporated ("XXXXXX XXXXXXX") propose to
enter into an Underwriting Agreement (the "UNDERWRITING AGREEMENT") with Century
Aluminum Company, a Delaware corporation (the "COMPANY") and possibly Century
Aluminum Employees Retirement Plan and the Century Aluminum of West Virginia,
Inc. Hourly Employees Pension Plan (together, the "SELLING SHAREHOLDERS"),
providing for the public offering (the "PUBLIC OFFERING") by the several
Underwriters, including CSFB and Xxxxxx Xxxxxxx (the "UNDERWRITERS"), of shares
(the "SHARES") of the Common Stock, $.01 par value of the Company (the "COMMON
STOCK").
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of CSFB and
Xxxxxx Xxxxxxx on behalf of the Underwriters, it will not, during the period
commencing on the date hereof and ending 90 days after the date of the final
prospectus relating to the Public Offering (the "PROSPECTUS"), (1) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, or (2) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of the Common Stock, whether
any such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise. The
foregoing sentence shall not apply to (a) the sale of any Shares to the
Underwriters pursuant to the Underwriting Agreement, (b) transactions relating
to shares of Common Stock or other securities acquired in open market
transactions after the completion of the Public Offering, (c) transfers of
shares of Common Stock as bona fide gifts; provided that (i) the transferee
agrees to enter into a lock-up letter substantially in the form of this Lock-Up
Agreement and (ii) the undersigned shall not be required to, and shall not
voluntarily, file a report on Form 4 under Section 16(a) of the Securities
Exchange Act of 1934 reporting a reduction in beneficial ownership of shares of
Common Stock during the restricted period referred to in the foregoing sentence
and (d) sales or other dispositions of shares of Common Stock to the Company to
discharge tax withholding obligations resulting from the vesting of performance
shares during the term of the Lock-Up Agreement; provided that (i) the
undersigned is listed on Schedule I hereto and (ii) the aggregate number of
shares withheld by the Company for all persons listed on Schedule I hereto shall
not exceed 100,000 shares of Common Stock. In addition, the undersigned agrees
that, without the prior written consent of CSFB and Xxxxxx Xxxxxxx on behalf of
the Underwriters, it will not, during the period commencing on the date hereof
and ending 90 days after the date of the Prospectus, make any demand for or
exercise any right with respect to, the registration of any shares of Common
Stock or any security convertible into or exercisable or exchangeable for Common
Stock. The undersigned also agrees and consents to the entry of stop transfer
instructions with the Company's transfer agent and registrar against the
transfer of the undersigned's shares of Common Stock except in compliance with
the foregoing restrictions.
The undersigned understands that the Company and the Underwriters are
relying upon this Lock-Up Agreement in proceeding toward consummation of the
Public Offering. The undersigned further understands that this Lock-Up Agreement
is irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors and assigns.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters. If for any reason the
Underwriting Agreement shall be terminated prior to the Closing Date (as defined
in the Underwriting Agreement), the agreement set forth above shall likewise be
terminated.
2
Very truly yours,
_______________________________________
(Name)
_______________________________________
(Address)
3
SCHEDULE I
Xxxxx X. Xxxxx
Xxxxxx X. Kitchen
Xxxxx X. Xxxxxxx
E. Xxxx Xxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxx Xxxxxxxxx
Xxxxx X. XxXxxxx
Xxxx X. Xxxxxxxx
Xxxx X. X'Xxxxx
Xxxxxx X. Xxxxxxx
Xxxxxxx X. Hampshire
Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxxx
Glencore International AG
4
