1
Exhibit 2.2
ASSET PURCHASE AGREEMENT
BETWEEN
CENTURY ALUMINUM COMPANY,
CENTURY KENTUCKY, INC.
NSA, LTD.
AND
GLENCORE AG
DATED AS OF
APRIL 2, 2001
2
TABLE OF CONTENTS
PAGE #
ARTICLE I DEFINITIONS.....................................................2
2.1 Transfer of Assets...............................................3
2.2 Purchased Assets.................................................3
2.3 Excluded Assets..................................................4
2.4 Liabilities......................................................4
ARTICLE III PURCHASE PRICE AND ADJUSTMENT.................................4
3.1 Purchase Price...................................................4
3.2 Payment of Purchase Price........................................5
3.3 Net Working Capital Adjustment...................................5
3.4 Additional Consideration.........................................5
3.5 Allocation of Purchase Price.....................................6
3.6 Effectiveness....................................................6
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLER.......................6
4.1 Organization and Good Standing; Governing Documents..............6
4.2 Authority; Enforceability........................................6
4.3 No Conflict or Breach............................................7
4.4 Governmental Consents and Approvals..............................7
4.5 Litigation.......................................................7
4.6 Brokers..........................................................7
4.7 Disclosure.......................................................7
ARTICLE V REPRESENTATIONS AND WARRANTIES OF GLENCORE......................8
5.1 Organization and Good Standing...................................8
5.2 Authority; Enforceability........................................8
5.3 No Conflict or Breach............................................8
5.4 Governmental Consents and Approvals..............................8
5.5 Litigation.......................................................9
5.6 Brokers..........................................................9
5.7 Disclosure.......................................................9
ARTICLE VI INDIVIDUAL COVENANTS...........................................9
6.1 Covenants of Seller..............................................9
6.2 Covenants of Glencore............................................9
ARTICLE VII MUTUAL COVENANTS..............................................9
7.1 Notification....................................................10
7.2 Best Efforts....................................................10
7.3 Guarantees......................................................10
7.4 Intentionally Omitted...........................................10
7.5 Contract Splitting..............................................10
ARTICLE VIII CONDITIONS PRECEDENT TO GLENCORE'S OBLIGATIONS..............10
3
8.1 Representations and Warranties..................................10
8.2 Compliance with Covenants.......................................11
8.3 Absence of Litigation...........................................11
8.4 Intentionally Omitted...........................................11
8.5 Conditions to Obligations of Century and Closing
under Stock Purchase Agreement. ................................11
8.6 Operating Agreements............................................11
8.7 Mortgage........................................................11
8.8 Assignment Agreement............................................11
ARTICLE IX CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS..................11
9.1 Representations and Warranties..................................12
9.2 Compliance with Covenants.......................................12
9.3 Absence of Litigation...........................................12
9.4 Intentionally Omitted...........................................12
9.5 Closing under Stock Purchase Agreement..........................12
9.6 Operating Agreements............................................12
ARTICLE X CLOSING........................................................12
10.1 Closing......................................................12
10.2 Deliveries by Seller.........................................12
10.3 Deliveries by Glencore.......................................13
10.4 Transfer Costs...............................................14
10.5 Further Assurances...........................................14
ARTICLE XI INDEMNIFICATION...............................................14
11.1 Southwire Indemnity..........................................14
11.2 Indemnification by Seller....................................15
11.3 Indemnification by Glencore..................................15
11.4 Indemnification Threshold....................................16
11.5 Time Limits on Indemnification...............................16
11.6 Notice of Third Party Claim..................................16
11.7 Claims between Buyer and Seller..............................17
11.8 Dollar Limit on Indemnification by Seller and Glencore.......17
11.9 Exclusive Remedies...........................................17
ARTICLE XII TERMINATION..................................................17
12.1 Termination..................................................17
12.2 Effect on Obligations........................................18
ARTICLE XIII MISCELLANEOUS...............................................18
13.1 Bulk Sales...................................................18
13.2 Intentionally Omitted........................................18
13.3 Expenses.....................................................18
13.4 Publicity....................................................18
13.5 Best Efforts.................................................19
13.6 Notices......................................................19
13.7 Governing Law................................................19
4
13.8 Dispute Resolution...........................................19
13.9 Counterparts.................................................20
13.10 Assignment...................................................20
13.11 Third Party Beneficiaries....................................20
13.12 Headings.....................................................20
13.13 Amendments...................................................20
13.14 Specific Performance.........................................20
13.15 Access to Records............................................20
13.16 Severability.................................................20
13.17 Entire Agreement.............................................20
5
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (together with the Schedules and Exhibits
hereto, the "Agreement") dated as of April 2, 2001 is entered into by and
between CENTURY ALUMINUM COMPANY, a Delaware corporation ("Century"), Century
Kentucky, Inc., a Delaware corporation ("CKI"), NSA, Ltd., a Kentucky limited
partnership ("NSA" and together with Century and CKI, collectively, "Seller"),
and GLENCORE AG, a Swiss corporation ("Glencore").
RECITALS:
1. Century has agreed, pursuant to a Stock Purchase Agreement dated
August 31, 2000 (the "Stock Purchase Agreement"), with Southwire Company, a
Delaware corporation ("Southwire"), a copy of which is attached hereto as
Exhibit A, to purchase from Southwire all of the capital stock of Metalsco Ltd.,
a Georgia corporation ("Metalsco"), and certain additional properties and assets
(the "Additional Assets") owned by Southwire and used in the conduct of the
Business (as defined herein), on the terms and subject to the conditions set
forth in the Stock Purchase Agreement.
2. Metalsco owns directly and indirectly all of the partnership
interests in NSA, which owns and operates the NSA aluminum reduction facility
located at Hawesville, Xxxxxxx County, Kentucky (the "Plant").
3. At the closing of the purchase and sale under the Stock Purchase
Agreement (the "Southwire Closing"), (a) CKI will take title to the shares of
capital stock of Metalsco, and (b) Century Aluminum of Kentucky LLC ("CAK"), a
Delaware limited liability company of which CKI is the sole member, will take
assignment from Southwire of the Additional Assets listed on Exhibit B hereto
("CAK Assets").
4. Century and Glencore desire to own the Plant and operate the
aluminum reduction business conducted at the Plant (the "Business") jointly
(directly or indirectly) and, to such purpose, Glencore desires to purchase,
either directly or through a wholly-owned entity established therefor
(collectively the "Buyer"), from Century, CKI and NSA, and Century, CKI and NSA
desire to sell, to Buyer, immediately following the occurrence of the Southwire
Closing, (i) pot line five (5) at the Plant, (ii) a twenty percent (20%)
undivided interest in and to certain assets and properties comprising a part of
the Plant or otherwise used in the conduct of the Business, as more fully
described in Section 2.2 hereof (the assets described in clauses (i) and (ii)
being the "Purchased Assets"), and (iii) a membership interest equal to twenty
percent (20%) of the total membership interests in CAK (the "Membership
Interest"), upon the terms and subject to the conditions set forth herein.
5. In connection with the ownership of the Plant and operation of the
Business, NSA, CAK and Buyer intend, on and as of the Closing Date, to enter
into an Owners Agreement in substantially the form of Exhibit C attached hereto
(the "Owners Agreement").
6
NOW, THEREFORE, in consideration of premises and the respective
covenants and agreements herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The definitions of the following terms are set forth in the Sections
specified below and will apply throughout this Agreement:
DEFINITION SECTION
Affiliate Section 11.1.
Additional Assets Recital 1.
Aluminum Supply Agreement Section 7.5
Business Recital 4.
Buyer Recital 4.
CAK Recital 3.
CAK Assets Recital 3.
CKI Recital 3.
Claims Section 4.5.
Closing Section 10.1.
Closing Date Section 10.1.
Environmental Access and Cooperation Section 8.6
Agreement
Fifth Pot Line Section 2.2(a).
Glencore First Paragraph.
Groundwater Treatment Building Lease Section 8.6
Agreement
HSR Act Section 4.4.
Indemnified Party Section 11.5.
Indemnifying Party Section 11.5.
2
7
Xxxxxx Section 7.5.
Membership Interest Recital 4.
Metalsco Recital 1.
NSA Recital 2.
Operator Section 8.6.
Owners Agreement Recital 5.
pro rata share Section 3.3.
Purchased Assets Recital 4.
Purchase Price Section 3.1.
Representatives Section 7.2.
Seller First Paragraph.
Shared Services Agreement Section 8.6
Southwire Recital 1.
Southwire Closing Recital 3.
Southwire Purchase Price Section 3.3(a).
Stock Purchase Agreement Recital 1.
Third Party Claim Section 11.5.
Threshold Section 11.3.
ARTICLE II
SALE AND PURCHASE OF ASSETS
2.1 Transfer of Assets. On the terms and subject to the conditions of
this Agreement, Seller agrees to sell, convey, assign, transfer and deliver, to
Buyer, and Glencore agrees to cause Buyer to purchase and accept from Seller, at
the Closing, all of Seller's right, title and interest in and to (a) the
Purchased Assets, and (b) the Membership Interest.
2.2 Purchased Assets. The Purchased Assets specifically include the
following:
3
8
(a) The fixed and movable assets comprising pot line five (5) at the
Plant, together with the real property thereunder, all as more fully
described in Exhibit D hereto (the "Fifth Pot Line").
(b) An undivided twenty percent (20%) interest as tenant in common in
all fixed and movable assets comprising the Plant or otherwise used in
the conduct of the Business, except the Excluded Assets.
(c) An undivided twenty percent (20%) interest in all of the rights of
Seller under the Stock Purchase Agreement, including without limitation
with respect to the representations and warranties of Southwire to the
extent that they relate to the Purchased Assets, the CAK Assets or the
Business, and in Seller's rights to indemnification arising thereunder.
(d) Twenty percent (20%) of the working capital of NSA at the time of
the Southwire Closing.
2.3 Excluded Assets. The Excluded Assets are the fixed and movable
assets comprising pot lines one (1) through four (4) at the Plant, together with
the real property thereunder, all as more fully described on Exhibit E hereto.
2.4 Liabilities.
(a) Assumed Liabilities. On the terms and subject to the conditions of
this Agreement, Buyer at Closing will assume and agree to pay, perform
and discharge when due Buyer's pro rata share of (i) all liabilities of
the Business, including any liabilities for matters as to which no
indemnification or a partial indemnification payment is received from
Southwire, and (ii) the obligations assumed by Seller under the Stock
Purchase Agreement, in each case not otherwise excluded hereunder or
accounted for in working capital adjustments (collectively, the
"Assumed Liabilities").
(b) Excluded Liabilities. The Purchased Assets and the Membership
Interest shall be sold and conveyed to Buyer free and clear of, and
Seller will retain sole responsibility for Seller's pro rata share of
(i) all liabilities of the Business, including any liabilities for
matters as to which no indemnification or a partial indemnification
payment is received from Southwire, and (ii) the obligations assumed by
Seller under the Stock Purchase Agreement.
ARTICLE III
PURCHASE PRICE AND ADJUSTMENT
3.1 Purchase Price. Subject to the adjustment provided for in Section
3.3, the aggregate purchase price (the "Purchase Price") for the Purchased
Assets and the Membership Interest will be Ninety-Nine Million US Dollars
(US$99,000,000.00), subject to pro rata adjustment to reflect the price
adjustments pursuant to Section 2.4.7 of the Stock Purchase Agreement.
4
9
3.2 Payment of Purchase Price. At the Closing, the Purchase Price
adjusted pursuant to Section 2.4.7 of the Stock Purchase Agreement will be paid
by Glencore or Buyer to Century by wire transfer of immediately available funds
to the account theretofore designated by Seller in a written notice to Glencore.
3.3 Net Working Capital Adjustment.
(a) The Purchase Price shall be subject to adjustment after the Closing
as specified in this Section 3.3:
(i) In the event that Seller shall be obligated to
make any payment to Southwire as an adjustment, as provided
for in Section 2.5(c)(ii) of the Stock Purchase Agreement, to
the purchase price for the purchase of the capital stock of
Metalsco and the Additional Assets (the "Southwire Purchase
Price"), Seller shall, no later than ten (10) Business Days
prior to the date of making the payment thereof, provide to
Buyer written notice of (A) the amount of such adjustment to
be paid, (B) Buyer's pro rata share thereof, and (C) the date
on which Seller intends to make payment thereof to Southwire.
No later than 9:00 a.m. Pacific time on the date on which
Seller intends to make payment of such adjustment, Buyer shall
pay to Seller by wire transfer of immediately available funds
to such account as Seller shall notify Buyer in writing
Buyer's pro rata share thereof.
(ii) In the event that Southwire shall be obligated
to make any payment to Seller as an adjustment to the
Southwire Purchase Price, as provided for in Section 2.5(c)(i)
of the Stock Purchase Agreement, Seller shall promptly deliver
to Buyer a copy of any notice delivered by Southwire to Seller
in respect thereto and, upon receipt of any payment in respect
of such adjustment, shall promptly deliver to Buyer by wire
transfer of immediately available funds to such account as
Buyer shall notify Seller in writing Buyer's pro rata share
thereof.
As used in this Agreement, "pro rata share" when used in relation to
Buyer shall mean a twenty percent (20%) share thereof, and when used in
relation to Seller shall mean an eighty percent (80%) share thereof.
(b) Seller will consult with Buyer during the course of the working
capital adjustment process provided for in the Stock Purchase Agreement
and will permit Buyer to participate in any meetings and discussions
relating thereto at Buyer's request. Seller and Buyer agree to
cooperate in any determination with respect thereto and agree that each
of Seller and Buyer will bear its pro rata share of any costs incurred
in connection therewith.
3.4 Additional Consideration. Pursuant to the Stock Purchase Agreement, Seller
is obligated (i) to pay to Southwire certain contingent consideration, as
provided for in Section 2.6 of the Stock Purchase Agreement, and (ii) to assume
certain indebtedness and liabilities of Southwire and NSA, as the case may be,
as provided for in Section 2.7 of the Stock Purchase Agreement. Glencore hereby
agrees that it shall contribute or cause to be contributed its pro rata share of
any payments required to be made by Seller with respect to such contingent
5
10
consideration and such assumed indebtedness and liabilities, in the manner
contemplated by the Owners Agreement.
3.5 Allocation of Purchase Price. The Purchase Price shall be allocated
in accordance with Exhibit F attached hereto.
3.6 Effectiveness. In the event that the Closing shall occur, Seller
and Glencore agree that Buyer's pro rata share of the results of operations of
the Business acquired by Buyer hereunder from 12:02 am on April 1, 2001 shall be
for the account of Buyer, provided that such results of operations would have
been for its account had the Closing occurred as of such time.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Glencore as follows:
4.1 Organization and Good Standing; Governing Documents. Century is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. Century has all requisite power and authority to own
its properties and to conduct its business as presently conducted. CKI is a
corporation duly organized and validly existing and in good standing under the
laws of the State of Delaware, and has all requisite power and authority to own
sits properties, including the shares of capital stock of Metalsco, and to
conduct its business as presently conducted. NSA is a limited partnership duly
organized and validly existing and in good standing under the laws of the State
of Kentucky, and has all requisite power and authority to own its properties and
to conduct its business as presently conducted. As of the Closing Date, CAK will
be a limited liability company duly organized and validly existing and in good
standing under the laws of the State of Delaware, will have all requisite power
and authority to own its properties, including the CAK Assets, to conduct its
business as then conducted, and will be qualified to do business in Kentucky.
4.2 Authority; Enforceability. Century has all requisite power and authority to
execute and deliver this Agreement and its Parent Guarantee (as such term is
defined in the Owners Agreement) and to perform the transactions contemplated
hereby and thereby, CKI has all requisite power and authority to execute and
deliver this Agreement and to perform the transactions contemplated hereby, NSA
has all requisite power and authority to execute and deliver this Agreement and
the Owners Agreement and to perform the transactions contemplated hereby and
thereby and, as of the Closing Date, CAK will have all requisite power and
authority to execute and deliver the Owners Agreement and to perform the
transactions contemplated thereby and by this Agreement. The execution, delivery
and performance of this Agreement, the Owners Agreement and Century's Parent
Guarantee and the consummation of the transactions contemplated hereby and
thereby have been, or will be on or prior to the Closing Date, duly and validly
authorized by all necessary action on the part of Century, CKI, NSA and CAK, as
the case may be. This Agreement has been duly executed and delivered by Century,
CKI and NSA and constitutes a valid and binding obligation of Century, CKI and
NSA, enforceable against Century, CKI and NSA in accordance with its terms and
when executed and delivered by NSA, CAK and Century, as the case may be, on and
as of the Closing Date, the Owners Agreement and Century's Parent Guarantee will
have been duly executed and delivered by NSA, CAK and
6
11
Century, as the case may be, and will constitute valid and binding obligations
of NSA, CAK and Century, as the case may be, enforceable against NSA, CAK and
Century in accordance with their terms.
4.3 No Conflict or Breach. The execution, delivery and performance of
this Agreement, the Owners Agreement and Seller's Parent Guarantee will not:
(a) conflict with or constitute a violation of the Articles of
Incorporation or By-Laws or other constitutive documents of Century,
CKI, NSA or CAK;
(b) conflict with or constitute a violation of any law, statute,
judgment, order, decree or regulation of any legislative body, court,
administrative agency, governmental authority or arbitrator applicable
to or relating to Century, CKI, NSA, CAK or the Purchased Assets or the
Membership Interest;
(c) conflict with, constitute a default under, result in a breach or
acceleration of or, except as set forth on Schedule 4.3, require notice
to or the consent of any third party under any contract, agreement,
commitment, mortgage, note, license or other instrument or obligation
to which Century, CKI, NSA or CAK is party or by which it is bound or
by which the Purchased Assets or the Membership Interest are affected;
or
(d) result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever on any of the Purchased Assets,
the Membership Interest or CAK.
4.4 Governmental Consents and Approvals. The execution, delivery and
performance of this Agreement and its Parent Guarantee by Seller and of the
Owners Agreement by NSA and CAK do not and will not require any consent,
approval, authorization or other order of, action by, filing with or
notification to any governmental authority except as described in Schedule 4.4
attached hereto.
4.5 Litigation. There are no pending or, to the knowledge of Century,
CKI or NSA, threatened claims, actions, suits, arbitration proceedings,
inquiries, hearings, injunctions or investigations ("Claims") against Century,
CKI, NSA or CAK relating to or arising out of, or that may affect, the Stock
Purchase Agreement, this Agreement, the Owners Agreement or Seller's Parent
Guarantee or the transactions contemplated hereby or thereby.
4.6 Brokers. No finder, broker, agent or other intermediary has acted
for or on behalf of Seller in connection with the negotiation or consummation of
this Agreement, and there are no claims for any brokerage commission, finder's
fee or similar payment due from Seller.
4.7 Disclosure. No representation, warranty or statement made by Seller
in this Agreement, or in any document furnished or to be furnished to Glencore
or Buyer by or on behalf of Seller pursuant to this Agreement, contains or will
contain any untrue statement of a material fact, or omits or will omit to state
any material fact necessary to make the statements contained herein or therein
not misleading.
7
12
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF GLENCORE
Glencore represents and warrants to Seller as follows:
5.1 Organization and Good Standing. Glencore is a corporation duly
organized, validly existing and in good standing under the laws of Switzerland.
Glencore has all requisite power and authority to own its properties and to
conduct its business as presently conducted. As of the Closing Date, Buyer will
be a limited liability company duly formed and validly existing and in good
standing under the laws of the State of Delaware and will have all requisite
power and authority to own its properties, including the Purchased Assets and
the Membership Interest, and to conduct its business as then conducted.
5.2 Authority; Enforceability. Glencore has all requisite power and
authority to execute, deliver and perform this Agreement and its Parent
Guarantee and the transactions contemplated hereby and thereby and as of the
Closing Date Buyer will have all requisite power and authority to execute and
deliver the Owners Agreement and to perform the transactions contemplated
thereby and by this Agreement. The execution, delivery and performance of this
Agreement, the Owners Agreement and Glencore's Parent Guarantee, and the
consummation of the transactions contemplated hereby and thereby, have been, or
will be on or prior to the Closing Date, duly and validly authorized by all
necessary action on the part of Glencore and Buyer, as the case may be. This
Agreement has been duly executed and delivered by Glencore and constitutes a
valid and binding obligation of Glencore, enforceable against Glencore in
accordance with its terms and when executed and delivered by Glencore or Buyer,
as the case may be, on and as of the Closing Date, the Owners Agreement and
Glencore's Parent Guarantee will have been duly executed and delivered by
Glencore and Buyer, as the case may be, and will constitute valid and binding
obligations of Glencore and Buyer, as the case may be, enforceable against
Glencore and Buyer in accordance with their terms.
5.3 No Conflict or Breach. The execution, delivery and performance of
this Agreement, the Owners Agreement and Glencore's Parent Guarantee do not and
will not
(a) conflict with or constitute a violation of the Articles of
Incorporation or Certificate of Formation or By-Laws of Glencore or
Buyer, as the case may be, or
(b) conflict with or constitute a violation of any law, statute,
judgment, order, decree or regulation of any legislative body, court,
administrative agency, governmental authority or arbitrator applicable
to or relating to Glencore or Buyer, or
(c) conflict with, constitute a default under, result in a breach or
acceleration of or require notice to or the consent of any third party
under any contract, agreement, commitment, mortgage, note, license or
other instrument or obligation to which Glencore or Buyer is party or
by which it is bound.
5.4 Governmental Consents and Approvals. The execution, delivery and
performance of this Agreement, the Owners Agreement and Glencore's Parent
Guarantee by Glencore and Buyer, as the case may be, do not and will not require
any consent, approval, authorization or other order of, action by, filing with
or notification to any governmental authority.
8
13
5.5 Litigation. There are no Claims pending, or to the knowledge of
Glencore threatened, against Glencore or its operations relating to or arising
out of, or that may affect, this Agreement, the Owners Agreement, Glencore's
Parent Guarantee or the transactions contemplated hereby or thereby.
5.6 Brokers. No finder, broker, agent or other intermediary has acted
for or on behalf of Glencore in connection with the negotiation or consummation
of this Agreement, and there are no claims for any brokerage commission,
finder's fee or similar payment due from Glencore.
5.7 Disclosure. No representation, warranty or statement made by
Glencore in this Agreement, or in any document furnished or to be furnished to
Seller by or on behalf of Glencore pursuant to this Agreement, contains or will
contain any untrue statement of a material fact, or omits or will omit to state
any material fact necessary to make the statements contained herein or therein
not misleading.
ARTICLE VI
INDIVIDUAL COVENANTS
6.1 Covenants of Seller. Seller covenants and agrees with Glencore as
follows:
(a) Access and Information. Seller will provide to Glencore and Buyer
reasonable access to any and all information and documents provided by
Southwire to Seller relating to the Plant and the Business whether
prior to the date hereof, from the date hereof until the Closing Date,
or after the Closing Date, and will provide copies of any and all such
documents upon written request of Buyer. Seller will keep Buyer
reasonably informed of all material information relating to the Plant
and the Business provided to Seller by or on behalf of Southwire from
the date hereof until the Closing Date.
(b) No Amendments, Waivers. Seller shall not agree (nor has it agreed
since the date of execution of the Stock Purchase Agreement) to any
amendment of, or grant any waiver of any agreement or obligation of
Southwire under, the Stock Purchase Agreement without the prior written
consent of Glencore, which consent shall not be unreasonably withheld.
(c) Guarantee of Performance. Century hereby unconditionally guarantees
to Glencore the payment and performance by CKI and NSA of all of their
obligations set forth in this Agreement in accordance with the terms
hereof.
6.2 Covenants of Glencore. Glencore hereby unconditionally guarantees
to Seller the payment and performance by Buyer of all of its obligations set
forth in this Agreement in accordance with the terms hereof.
ARTICLE VII
MUTUAL COVENANTS
Each of Glencore and Seller covenants and agrees with the other as
follows:
9
14
7.1 Notification. It shall notify the other party promptly of any fact
or circumstance the existence of which would cause any of the representations
and warranties of Southwire made in the Stock Purchase Agreement to cease to be
true and correct in any material respect at any time from the date hereof until
the Closing Date.
7.2 Best Efforts. It shall use its best efforts to make or obtain as
promptly as possible all consents, approvals, authorizations, registrations and
filings with all federal, state or local judicial or governmental authorities or
administrative agencies as are required in connection with the consummation of
the transactions contemplated by this Agreement.
7.3 Guarantees. Subject to approval of the transaction involved in the
manner specified in the Owners Agreement, it (or one of its Affiliates
acceptable to the relevant supplier) shall provide such guarantees as may be
required by any suppliers of the Business in accordance with their pro rata
share of the obligations relating thereto.
7.4 Intentionally Omitted.
7.5 Contract Splitting. Immediately following the Closing, CAK and
Seller shall use their best efforts to obtain the agreement of (i) Xxxxxx
Aluminum & Chemical Corporation ("Kaiser") to split the Alumina Supply
Agreement, dated as of December 18, 1997 between Kaiser and Southwire, as
amended by Amendment Number 1, dated October 26, 1998, which will be assigned by
Southwire to CAK at the Southwire Closing, into two separate contracts, one with
NSA and the other with Buyer (or an Affiliate thereof), based on their
respective pro rata share of the Business, and (ii) Southwire to split the
Aluminum Supply Agreement entered into as of the Southwire Closing date (the
"Aluminum Supply Agreement") between Century and Southwire, into two separate
contracts, the first with NSA with respect to the production and sale of, the
premium molten aluminum, meeting the standard set forth on Exhibit A to the
Aluminum Supply Agreement and the second with Buyer (or an Affiliate thereof)
with respect to the production and sale of aluminum meeting the P1020A Standard
(as such term is defined in the Aluminum Supply Agreement). To the extent the
split of the Aluminum Supply Agreement does not reflect the parties respective
pro rata share of the Business, they shall make an annual adjustment to reflect
their intention to share the economic burden and benefit of the Aluminum Supply
Agreement based on their pro rata share of the Business.
ARTICLE VIII
CONDITIONS PRECEDENT TO GLENCORE'S OBLIGATIONS
The obligations of Glencore to consummate or cause the consummation of
the transactions contemplated by this Agreement are subject to the satisfaction
of the following conditions on or before the Closing Date, unless specifically
waived in writing by Glencore prior to the Closing Date:
8.1 Representations and Warranties. The representations and warranties
of Seller contained in this Agreement shall have been true and correct on the
date of this Agreement and shall be true and correct on the Closing Date as
though made on and as of the Closing Date.
10
15
8.2 Compliance with Covenants. Seller shall have duly performed and
complied or caused the performance or compliance with all covenants, agreements
and obligations required by this Agreement to be performed or complied with by
it on or prior to the Closing.
8.3 Absence of Litigation. No action or proceeding shall be pending by
or before any court or other governmental body or agency seeking to restrain,
prohibit or invalidate the transactions contemplated by this Agreement or which
would adversely affect the right of Buyer to own, operate or control the
Purchased Assets or the Membership Interest after the Closing Date.
8.4 Intentionally Omitted.
8.5 Conditions to Obligations of Century and Closing under Stock
Purchase Agreement. The conditions to the obligations of Century under the Stock
Purchase Agreement shall have been satisfied, none of such conditions shall have
been waived by Century without the express written consent of Glencore, and the
Southwire Closing shall occur.
8.6 Operating Agreements. The parties thereto (other than persons under
the control of Glencore) shall have executed the Shared Services Agreement (as
defined in the Stock Purchase Agreement), the Environmental Access and
Cooperation Agreement (as defined in the Stock Purchase Agreement), the
Groundwater Treatment Building Lease Agreement to be entered into by NSA, Buyer
and Southwire pursuant to the Environmental Access and Cooperation Agreement
(the "Groundwater Treatment Building Lease Agreement"), the Owners Agreement,
the CAK limited liability operating agreement and Seller's Parent Guarantee.
8.7 Mortgage. The Mortgage, Assignment of Leases and Rents, Security
Agreement and Financing Statement granted by NSA in connection with Seller's
financing of the transactions contemplated by the Stock Purchase Agreement, to
the extent that each such document relates to the Plant, shall be reasonably
satisfactory to Glencore in form and substance.
8.8 Assignment Agreement. Buyer and CKI shall have executed and
delivered an Assignment Agreement, assigning to Buyer a 20% undivided interest
in and to the indemnification rights granted by Southwire to Seller (and
assigned to CKI) pursuant to the Stock Purchase Agreement, and such assignment
shall be agreed to and acknowledged by Southwire.
ARTICLE IX
CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS
The obligations of Seller to consummate or cause the consummation of
the transactions contemplated by this Agreement are subject to the satisfaction
of each of the following conditions on or before the Closing Date, unless
specifically waived in writing by Seller prior to the Closing:
11
16
9.1 Representations and Warranties. The representations and warranties
of Glencore contained in this Agreement shall have been true and correct on the
date of this Agreement, and shall be true and correct on the Closing Date as
though made on and as of the Closing Date.
9.2 Compliance with Covenants. Glencore shall have duly performed and
complied or caused the performance and compliance with all covenants, agreements
and obligations required by this Agreement to be performed or complied with by
it on or prior to the Closing.
9.3 Absence of Litigation. No action or proceeding shall be pending by
or before any court or other governmental body or agency seeking to restrain,
prohibit or invalidate the transactions contemplated by this Agreement.
9.4 Intentionally Omitted.
9.5 Closing under Stock Purchase Agreement. The Southwire Closing shall
occur.
9.6 Operating Agreements. The parties thereto (other than persons under
the control of Seller) shall have executed the Owners Agreement, the CAK limited
liability operating agreement and the Glencore Parent Guarantee. Buyer shall
have executed the Shared Services Agreement, the Environmental Access and
Cooperation Agreement and the Groundwater Treatment Building Lease Agreement.
ARTICLE X
CLOSING
10.1 Closing. The closing of the sale of the Purchased Assets (the
"Closing") shall take place at the offices of Xxxxxx, Xxxxxx-Xxxxxxx, Colt &
Mosle LLP, 101 Park Avenue, New York, New York, or such other place as may be
mutually agreed upon by the parties hereto. The date of the Closing is referred
to as the "Closing Date."
10.2 Deliveries by Seller. At the Closing, Seller shall deliver or
cause to be delivered to Buyer the following:
(a) A certificate of the President, Vice President or other authorized
officer of Seller confirming the satisfaction of the conditions set
forth in Sections 8.1, 8.2 and 8.5 hereof.
(b) A copy of all corporate resolutions authorizing the execution,
delivery and performance by Century, CKI and NSA of this Agreement, and
the consummation of the transactions contemplated herein, accompanied
by the certification of the Secretaries of each of Century, CKI and
NSA, respectively, to the effect that such resolutions are in full
force and effect and have not been amended, modified or rescinded.
(c) A copy of all corporate resolutions authorizing the execution,
delivery and performance by CAK of the Owners Agreement, and the
consummation of the transactions contemplated therein, accompanied by
the certification of the Manager of CAK to the effect that such
resolutions are in full force and effect and have not been amended,
modified or rescinded.
12
17
(d) A copy of all corporate resolutions authorizing the execution,
delivery and performance by NSA of the Owners Agreement, and the
consummation of the transactions contemplated herein, accompanied by
the certification of an officer of Metalsco, as General Partner of NSA,
to the effect that such resolutions are in full force and effect and
have not been amended, modified or rescinded.
(e) Good standing certificates from the Secretary of State of Delaware
for Century, CKI and CAK.
(f) A good standing certificate from the Secretary of State of Kentucky
for NSA.
(g) A special warranty Deed for the Fifth Pot Line, and such other
Deeds, Bills of Sale and Assignment and such other instruments of
transfer as Buyer may request to convey and vest in Buyer all of
Seller's right, title and interest in and to all of the remaining
Purchased Assets and the Membership Interest, free and clear of liens
arising by, through or under Century, CKI or NSA; provided that in no
event shall Seller be required to deliver a Deed with respect to any
Purchased Assets that purports to convey greater title to such
Purchased Assets than was conveyed or warranted by Southwire to Seller.
(h) Title Insurance Policy.
(i) Copies of all closing documents under the Stock Purchase Agreement.
(j) Original copies of the agreements referred to in Section 8.6,
executed by all parties thereto other than those under the control of
Glencore.
(k) Written consent of Southwire, in form and substance reasonably
satisfactory to Glencore, to the assignment by Seller of the interest
specified in Section 2.2(c).
10.3 Deliveries by Glencore. At the Closing, Glencore will deliver or
cause to be delivered to Seller the following:
(a) A certificate of an authorized officer of Glencore confirming the
satisfaction of the conditions set forth in Sections 9.1 and 9.2 as to
representations, warranties and covenants of Glencore.
(b) A copy of all corporate resolutions authorizing the execution,
delivery and performance by Glencore of this Agreement, and the
consummation of the transactions contemplated herein, accompanied by
the certification of an authorized representative of Glencore to the
effect that such resolutions are in full force and effect and have not
been amended, modified or rescinded.
(c) A copy of all corporate resolutions authorizing the execution,
delivery and performance by Buyer of the Owners Agreement, and the
consummation of the transactions contemplated herein, accompanied by
the certification of the Manager of Buyer to the effect that such
resolutions are in full force and effect and have not been amended,
modified or rescinded.
13
18
(d) The Purchase Price, evidenced by a wire transfer of immediately
available funds.
(e) Original copies of the agreements referred to in Section 9.6,
executed by all parties thereto other than persons under the control of
Seller.
10.4 Transfer Costs. Seller and Buyer shall be liable for their pro
rata share of (a) any fees and disbursements in connection with the transfer of
the Purchased Assets and the Membership Interest as provided in Section 2.1, and
(b) all property transfer taxes, including, without limitation, conveyance,
sales, use and stamp taxes and any recording, registration, and other fees,
which become payable in connection with the Closing of the transactions
contemplated by this Agreement. Seller, after review and consent by Glencore,
shall file such applications and documents as shall permit any such tax to be
assessed and paid on or prior to the Closing Date in accordance with any
available pre-sale filing procedure. Glencore and Buyer shall execute and
deliver all instruments and certificates necessary to enable Seller to comply
with the foregoing. Buyer shall complete and execute a resale or other exemption
certificate with respect to the inventory items sold hereunder, and shall
provide Seller with an executed copy thereof.
10.5 Further Assurances. Seller will, at any time on or after the
Closing Date, take any and all steps reasonably requested by Glencore or Buyer
to confirm title to Buyer of the Purchased Assets and the Membership Interest,
and will do, execute, acknowledge and deliver all such further acts, deeds,
conveyances, powers of attorney and assurances as may be required for the more
effective transfer to Buyer, or its successors or assigns, of any of the
Purchased Assets and the Membership Interest.
ARTICLE XI
INDEMNIFICATION
11.1 Southwire Indemnity.
(a) The provisions in Sections 11.2, 11.3, 11.4, 11.5, 11.6, 11.7 and
11.8 relating to the indemnification by Seller and by Glencore apply
only to Losses as specified therein and do not affect the obligations
of Seller and Glencore with respect to claims for indemnification
against Southwire under the Stock Purchase Agreement. Seller and
Glencore agree that, with respect to claims for indemnification against
Southwire under the Stock Purchase Agreement, and any recovery related
thereto, CKI and Buyer shall share pro rata in such claims and
recoveries; provided, however, that in the event that CKI or any of its
Affiliates, on the one hand, or Buyer or any of its Affiliates, on the
other hand, shall have incurred any Loss with respect to the subject
matter of any such claim which is in excess of CKI's or Buyer's pro
rata share of the total Loss relating thereto, then CKI or its
Affiliate, or Buyer or its Affiliate, as the case may be, shall be
entitled to a share of the recovery from Southwire equal to the total
recovery multiplied by a fraction, the numerator of which is its Loss
and the denominator of which is the total Loss. If for any reason there
is no recovery from Southwire, then CKI and Buyer shall share pro rata
in the Loss.
14
19
(b) Seller and Glencore agree that the assignment of rights under the
Stock Purchase Agreement pursuant to Section 2.2(c) hereof is not
intended to limit or decrease in any respect the indemnity amounts
otherwise to be claimed from and owed by Southwire, and that the
parties shall coordinate their claims so as to maximize recovery with
respect thereto and shall take such additional actions in relation to
such claims or any recovery as may be reasonable in order to maintain
the pro rata sharing of the burdens and benefits of the operation of
the Business contemplated herein. Century, CKI and NSA agree to use
their commercially reasonable efforts to prosecute any claim for
indemnification against Southwire under the Stock Purchase Agreement in
accordance with its terms. In the event that Century, CKI or NSA shall
fail or shall be unable for any reason whatsoever to so prosecute any
such claim for indemnification against Southwire, in connection with
the assignment by Seller of indemnification rights to Glencore or
Buyer, such assignment shall contain a valid and binding irrevocable
power of attorney or other document or instrument executed by Century,
and coupled with an interest, in order to enable Glencore or Buyer to
prosecute such claim.
11.2 Indemnification by Seller. Seller will indemnify, defend and hold
harmless Glencore and its officers, directors and Affiliates from, against, and
with respect to any and all action or cause of action, loss, damage, claim,
obligation, liability, penalty, fine, cost and expense (including, without
limitation, reasonable attorneys' and consultants' fees and costs and expenses
incurred in investigating, preparing, defending against or prosecuting any
litigation, claim, proceeding, demand or request for action by any governmental
or administrative entity), of any kind or character (a "Loss") arising out of or
in connection with any of the following:
(a) any breach of any of the representations or warranties of Seller
contained in or made pursuant to this Agreement;
(b) any failure by Seller to perform or observe, or to have performed
or observed, in full, any covenant, agreement or condition to be
performed or observed by it pursuant to this Agreement;
(c) the Excluded Liabilities; and
(d) any claims by any beneficiary under any guarantees provided by
Century or an Affiliate in connection with the Owners Agreement.
As used in this Article XI, the term "Affiliate" means, with respect to
any specified person, any other person that directly, or indirectly through one
or more intermediaries, controls, is controlled by, or is under common control
with, such specified person.
11.3 Indemnification by Glencore. Glencore will indemnify, defend and
hold harmless Seller and each of their officers, directors and Affiliates from,
against and with respect to any Loss arising out of or in connection with any of
the following:
(a) any breach of any of the representations and warranties of Glencore
contained in or made pursuant to this Agreement;
15
20
(b) any failure by Glencore or Buyer to perform or observe, or to have
performed or observed, in full, any covenant, agreement or condition to
be performed or observed by it pursuant to this Agreement;
(c) the Assumed Liabilities; and
(d) any claims by any beneficiary under any guarantees provided by
Glencore or an Affiliate in connection with the Owners Agreement.
11.4 Indemnification Threshold. Neither party will be entitled to
indemnification under Section 11.2(a) and (b) and Section 11.3(a) and (b) hereof
until such party has sustained aggregate Losses under such Sections in excess of
One Hundred Thousand US Dollars (US$100,000.00) (the "Threshold"). If either
party suffers indemnifiable Losses in excess of the Threshold, such party will
be entitled to indemnification hereunder with respect to the aggregate amount of
all such indemnifiable Losses and not merely the amount in excess of the
Threshold.
11.5 Time Limits on Indemnification. Neither party will have liability
to the other party for indemnification under Section 11.2(a) and Section 11.3(a)
hereof unless notice of the Loss is given by the Indemnified Party to the
Indemnifying Party within two (2) years of the Closing Date.
11.6 Notice of Third Party Claim. A party that may be entitled to be
indemnified pursuant to Section 11.2 or 11.3 (the "Indemnified Party") shall
promptly notify the other party (the "Indemnifying Party") in writing within 15
days of notice thereof of any pending or threatened claim or demand asserted by
a third party which the Indemnified Party has determined has given or could give
rise to a right of indemnification under this Agreement ("Third Party Claims")
against the Indemnified Party, describing in reasonable detail the facts and
circumstances with respect to the subject matter of such claim or demand;
provided, however, that the failure to provide such notice shall not release the
Indemnifying Party from any of its obligations under this Article XI except to
the extent the Indemnifying Party is materially prejudiced by such failure.
Subject to the Indemnifying Party's right to defend in good faith Third Party
Claims as hereinafter provided, the Indemnifying Party shall satisfy or contest
its obligations under this Article XI within 15 days after the receipt of
written notice thereof from the Indemnified Party. If the Indemnifying Party
acknowledges in writing its obligation to indemnify the Indemnified Party
hereunder against any Losses that may result from a Third Party Claim, then the
Indemnifying Party shall be entitled to assume and control the defense of such
Third Party Claim at its expense and through counsel of its choice if it gives
notice of its intention to do so to the Indemnified Party within 15 days of the
receipt of such notice from the Indemnified Party; provided, however, that the
Indemnified Party may participate in such defense and retain separate counsel at
its own cost and expense, without prejudice to the rights of the parties to
control the defense of their respective interests. In the event the Indemnifying
Party exercises the right to undertake any such defense against any such Third
Party Claim as provided above, the Indemnified Party shall cooperate with the
Indemnifying Party in such defense and make available to the Indemnifying Party,
at the Indemnifying Party's expense, all witnesses, pertinent records, materials
and information in the Indemnified Party's possession or under the Indemnified
Party's control relating thereto as is reasonably required by the Indemnifying
Party. Similarly, in the event the Indemnified Party is, directly or indirectly,
16
21
conducting the defense against any such Third Party Claim, the Indemnifying
Party shall cooperate with the Indemnified Party in such defense and make
available to the Indemnified Party, at the Indemnifying Party's expense, all
such witnesses, records, materials and information in the Indemnifying Party's
possession or under the Indemnifying Party's control relating thereto as is
reasonably required by the Indemnified Party. No such Third Party Claim may be
settled by the Indemnifying Party without the written consent of the Indemnified
Party (which consent shall not be unreasonably withheld).
11.7 Claims between Buyer and Seller. Glencore and Seller shall attempt
to resolve between themselves any claims for indemnification hereunder not a
result of a Third Party Claim. The notification provisions of Section 11.6 shall
also apply to claims between Glencore and Seller. Any disputes not resolved
within 90 days of notice shall be settled by arbitration as provided in Section
13.9.
11.8 Dollar Limit on Indemnification by Seller and Glencore.
Notwithstanding anything to the contrary contained in this Agreement, the
maximum aggregate amount of indemnifiable Losses which may be recovered from
Seller or their Affiliates or Glencore or its Affiliates, as the case may be,
arising out of or resulting from the causes enumerated in Sections 11.2(a)(with
the exception of any Losses relating to or arising from the breach of any
representation or warranty contained in Sections 4.1, 4.2 and 4.3) or 11.3(a)
(with the exception of any Losses relating to or arising from the breach of any
representation or warranty contained in Sections 5.1, 5.2 and 5.3), shall be an
amount equal to Ten Million US Dollars (US$10,000,000.00).
11.9 Exclusive Remedies. Except as provided in Section 13.14 hereof
(specific performance) or in respect of injunctive relief to the extent
available, the parties hereto acknowledge and agree that following the Closing
the indemnification provisions of this Article XI shall be the sole and
exclusive remedies of, on the one hand, Seller and each of their Affiliates
against Glencore and its Affiliates, and on the other hand, Glencore and its
Affiliates against Seller and each of their Affiliates, for any breach of the
representations, warranties, covenants or agreements of Seller or Glencore, as
the case may be, hereunder.
ARTICLE XII
TERMINATION
12.1 Termination. This Agreement may be terminated at any time prior to
the Closing:
(a) By the mutual written consent of Seller and Glencore;
(b) By Seller (if Seller is not then in breach of any term of this
Agreement), if Glencore (i) fails to perform in any material respect
its agreements contained herein
required to be performed on or prior to the Closing Date, or (ii)
materially breaches any of its representations or warranties contained
herein, which failure or breach is not cured within ten days after
Seller has notified Glencore of its intent to terminate this Agreement
pursuant to this subparagraph;
17
22
(c) By Glencore (if Glencore is not then in breach of any term of this
Agreement), if Seller (i) fails to perform in any material respect its
agreements contained herein required to be performed on or prior to the
Closing Date, or (ii) materially breaches any of its representations or
warranties contained herein , which failure or breach is not cured
within ten days after Glencore has notified Seller of its intent to
terminate this Agreement pursuant to this subparagraph; or
(d) By either Seller or Glencore, if there is any order, writ,
injunction or decree of any court or governmental or regulatory agency
binding on Seller or Glencore which prohibits or restrains Seller or
Glencore from consummating the transactions contemplated hereby.
12.2 Effect on Obligations. Termination of this Agreement pursuant to
this Article shall terminate all obligations of the parties hereunder, except
for the obligations under Sections 13.3 (with respect to expenses), 13.4 (with
respect to publicity) and 7.4 (with respect to confidentiality); provided,
however, that termination pursuant to Sections 12.1(b) or (c) will not relieve
the defaulting or breaching party from any liability to the other party hereto.
In the event of termination under Section 12.1(c), Buyer will have the rights
and remedies with respect to specific performance as set forth in Section 13.14
hereof, in addition to any other remedies that may be available at law or in
equity.
ARTICLE XIII
MISCELLANEOUS
13.1 Bulk Sales. The parties agree to waive the requirements, if any,
of all applicable bulk sales laws.
13.2 Intentionally Omitted.
13.3 Expenses. Except as provided in Section 10.4 (Transfer Costs),
Glencore shall reimburse to Seller Glencore's pro rata share of all fees, costs
and expenses incurred in connection with (a) the Stock Purchase Agreement and
the transactions contemplated thereby and (b) this Agreement and the
transactions contemplated hereby; provided, however, that such fees, costs and
expenses (i) incurred by Seller prior to February 14, 2001 which are reimbursed
by Glencore shall not exceed Four Hundred Thousand US Dollars (US$400,000), and
(ii) shall not include any fees, costs and expenses attributable to the
financing by Seller of its share of the purchase price payable to Southwire for
the Plant, such as fees and expenses of investment bankers and other advisors
engaged by Seller, and legal counsel of Seller or to the investment bankers, the
bond trustee, the bank lenders or Glencore engaged in connection with Seller's
mortgage bond or bank lending facilities or issuance of preferred stock. Except
as set forth in this Section 13.3 or in Section 10.4, each party shall bear its
own fees, costs and expenses incurred in connection with the transactions
contemplated hereby.
13.4 Publicity. Except as may be required by law or stock exchange
rules, no party to this Agreement shall make, or cause to be made, any press
release or public announcement in respect of this Agreement or the transactions
contemplated hereby or otherwise communicate with any news media without the
prior written consent of the other party, and the parties shall
18
23
cooperate as to the timing and contents of any such press release or public
announcement. Notwithstanding the foregoing, where an announcement is required
by law or stock exchange rules, the party required to make such an announcement
shall notify the other party of such requirement (and provide a copy of such
announcement to the other party) as soon as practicable in advance of such
announcement and, to the extent practical, take the views of the other party in
respect of such announcement into account prior to making such announcement.
13.5 Best Efforts. Each party hereto agrees to use its best efforts to
satisfy the conditions to the Closing set forth in this Agreement and otherwise
to consummate the transactions contemplated by this Agreement.
13.6 Notices. All notices, demands and other communications made
hereunder will be in writing and shall be given either by personal delivery, by
nationally recognized overnight courier (with charges prepaid) or by telecopy
(with telephone confirmation), and will be deemed to have been given or made
when personally delivered, the day following the date deposited with such
overnight courier service or when transmitted to telecopy machine and confirmed
by telephone, addressed to the respective parties at the following addresses (or
such other address for a party as shall be specified by like notice):
If to Seller:
Century Aluminum Company
0000 Xxxxxx Xxxx
Xxxxxxxx X, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Kitchen
Facsimile No.: (000) 000 0000
If to Glencore:
Glencore AG
c/o Glencore Ltd.
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Aluminum Department
Facsimile No.: (000) 000-0000
13.7 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, applicable to contracts
executed in and to be performed entirely within that state.
13.8 Dispute Resolution. Any controversy or claim arising out of or
relating to this Agreement, or any breach thereof, shall be settled by
arbitration administered by the American Arbitration Association in New York
City under its Commercial Arbitration Rules. The panel of arbitrators shall
consist of three arbitrators. Each party shall select one arbitrator and the two
selected arbitrators shall select a third to complete the panel. Judgment on the
award rendered by the arbitrators may be entered in any court having
jurisdiction thereof. The determination of the arbitrators shall be final and
binding on the parties.
19
24
13.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
13.10 Assignment. This Agreement will be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. Neither this Agreement nor any of the rights, interest or obligations
hereunder may be assigned by any of the parties hereto without the prior written
consent of all other parties hereto, and any purported assignment without such
consent shall be void.
13.11 Third Party Beneficiaries. None of the provisions of this
Agreement or any document contemplated hereby is intended to grant any right or
benefit to any person or entity which is not a party to this Agreement.
13.12 Headings. The Article and Section headings contained in this
Agreement are solely for the purpose of reference, are not part of this
Agreement and shall not in any way affect the meaning or interpretation of this
Agreement.
13.13 Amendments. Any waiver, amendment, modification or supplement of
or to any term or condition of this Agreement will be effective only if in
writing and signed by all parties hereto and the parties hereto waive the right
to amend the provisions of this Section orally.
13.14 Specific Performance. Seller acknowledges that the Purchased
Assets and the Membership Interest are unique and that if Seller fails to
consummate the transactions contemplated by this Agreement such failure will
cause irreparable harm to Glencore for which there will be no adequate remedy at
law. Glencore shall be entitled, in addition to its other remedies pursuant to
Article XI hereof, to specific performance of this Agreement if Seller will,
without cause, refuse to consummate the transactions contemplated by this
Agreement.
13.15 Access to Records. After the Closing, each of Buyer and Seller
will permit the other and its counsel, accountants and other representatives
reasonable access at such times as Buyer and Seller may agree to records
relating to the Plant, its operation or the Business for accounting, financial,
and tax purposes.
13.16 Severability. In the event that any provision in this Agreement
shall be determined to be invalid, illegal or unenforceable in any respect, the
remaining provisions of this Agreement will not be in any way impaired, and the
illegal, invalid or unenforceable provision shall be fully severed from this
Agreement and there will be automatically added in lieu thereof a provision as
similar in terms and intent to such severed provision as may be legal, valid and
enforceable.
13.17 Entire Agreement. This Agreement and the Schedules and Exhibits
hereto constitute the entire contract between the parties hereto pertaining to
the subject matter hereof, and supersede all prior and contemporaneous
agreements and understandings between the parties with respect to such subject
matter (including, without limitation, the letter agreement dated February 23,
2001 between Seller and Glencore).
20
25
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed by its duly authorized officer or representative as of
the date first above written.
CENTURY ALUMINUM COMPANY
By: ________________________________
Name:______________________________
Title:_______________________________
CENTURY KENTUCKY, INC.
By: ________________________________
Name:______________________________
Title: ______________________________
NSA, LTD.
By: ________________________________
Name:______________________________
Title: ______________________________
GLENCORE AG
By: ________________________________
Name:_______________________________
Title:_______________________________
26
EXHIBIT A
Stock Purchase Agreement
27
EXHIBIT B
CAK Assets
All Intellectual Property (as such term is defined in the Stock
Purchase Agreement) sold or assigned to Century pursuant to the Stock Purchase
Agreement.
Contract rights assigned to Century pursuant to the Stock Purchase
Agreement with request to the following contracts (each as defined in the Stock
Purchase Agreement):
Alumina Supply Agreement
Coke Supply Agreement
Pitch Supply Agreement
Power Contract
28
EXHIBIT C
Owners Agreement
29
EXHIBIT D
Fifth Pot Line Description
[SEE DEED FROM NSA TO GLENCORE ACQUISITION I LLC]
30
EXHIBIT E
Excluded Assets
[SEE DESCRIPTION OF POTLINES 1-4 IN MORTGAGE]
31
EXHIBIT F
Allocation of Purchase Price
With respect to Buyer's acquisition of the Purchased Assets and the
Membership Interest, within sixty (60) calendar days following the Closing Date,
the Buyer shall deliver to Seller a schedule (the "Allocation Schedule")
allocating the purchase price among the Purchased Assets and the Membership
Interest. If Seller in good faith determines that there is a reasonable basis
that any of the allocations or computations reflected on the Allocation Schedule
are materially incorrect, Seller and Buyer will attempt in good faith to
promptly agree on a revised Allocation Schedule. If the parties cannot resolve
any such dispute within thirty (30) business days of the delivery by Seller of
the Allocation Schedule to Buyer, the items remaining in dispute shall be
submitted to an internationally recognized accounting firm acceptable to Buyer
and Seller, which may be a firm representing either Buyer or Seller (the
"Accounting Firm") If the Accounting Firm determines that the items remaining in
dispute are not materially incorrect, then Seller and Buyer shall be bound by
the allocation prepared by Buyer. If the Accounting Firm determines that one or
more items remaining in dispute are materially incorrect, then Seller and Buyer
shall be bound by the allocation of such items as determined by the Accounting
Firm. The Accounting Firm shall make any such determination within thirty (30)
business days after submission of the remaining disputed items.
32
SCHEDULE 4.3
Conflicts, breaches or acceleration of existing obligations as a result of the
execution of the Asset Purchase Agreement, Owners Agreement and Seller's Parent
Guarantee
None.
33
SCHEDULE 4.4
Required consents, approvals, authorizations or filings with any governmental
authority in relation to the execution of the Asset Purchase Agreement, Seller's
Parent Guarantee and the Owners Agreement.
None.
