24,500,000 Shares CENTURY ALUMINUM COMPANY COMMON STOCK, $.01 PAR VALUE UNDERWRITING AGREEMENT
Exhibit
1.1
EXECUTION COPY
24,500,000 Shares
CENTURY ALUMINUM COMPANY
COMMON STOCK, $.01 PAR VALUE
January 28, 2009
January 28, 2009
Credit Suisse Securities (USA) LLC
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
As representatives of the Underwriters
listed in Schedule I hereto
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”) for whom you are acting
as representatives (the “Representatives”), an aggregate of 24,500,000 shares of the Common Stock, $.01
par value, of the Company (the “Firm Shares”).
The Company also proposes to issue and sell to the several Underwriters not more than an
additional 3,675,000 shares of its Common Stock, $.01 par value (the “Additional Shares”) if and to the
extent that you, as Representatives, 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 2 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 has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-3 (File No. 333-143315), including a prospectus, relating to the
Company’s Common Stock (including the Shares) (the “Shelf Securities”), to be offered from time to
time by the Company. The registration statement as amended to the date of this Agreement, including
the information (if any) deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430 B under the Securities Act of 1933, as amended (the “Securities
Act”), is hereinafter referred to as the “Registration Statement”, and the related prospectus
covering the Shelf Securities dated May 29, 2007 in the form first used to confirm sales of the
Shares (or in the form first made available to the Underwriters by the Company to meet requests of
purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “Basic
Prospectus.” The Basic Prospectus, as supplemented by the prospectus supplement specifically
relating to the Shares in the form first used to confirm sales of the Shares (or in the form first
made available to the
Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the
Securities Act) is hereinafter referred to as the “Prospectus,” and the term “preliminary
prospectus” means any preliminary form of the Prospectus. For purposes of this Agreement, “free
writing prospectus” has the meaning set forth in Rule 405 under the Securities Act, “issuer free
writing prospectus” has the meaning set forth in Rule 433(h) under the Securities Act, “Time of
Sale Prospectus” means the preliminary prospectus together with the pricing information set forth
in Schedule III hereto and the free writing prospectuses, if any, each identified in Schedule III
hereto, and “electronic road show” means a “bona fide electronic road show” as defined in Rule
433(h)(5) under the Securities Act. As used herein, the terms “Registration Statement,” “Basic
Prospectus,” “preliminary prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the
documents, if any, incorporated by reference therein. The terms “supplement,” “amendment,” and
“amend” as used herein with respect to the Registration Statement, the Basic Prospectus, the Time
of Sale Prospectus, any preliminary prospectus or free writing 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”), that are deemed to be incorporated by reference
therein.
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. The Company is a well-known
seasoned issuer (as defined in Rule 405 under the Securities Act) eligible to use the
Registration Statement as an automatic shelf registration statement. The Company has not
received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities
Act objecting to the use of the Registration Statement as an automatic shelf registration
statement.
(b) (i)Each document, if any, filed or to be filed pursuant to the Exchange Act on or
prior to the Closing Date (as defined below) or the Option Closing Date (as defined
below), as the case may be, and incorporated by reference in the Time of Sale Prospectus
or 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)each part of the Registration Statement, when such part became effective, did not
contain, and each such part, 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, as amended or supplemented, if applicable, as of the date of its
effectiveness complied, and as of the Closing Date will comply, in all material respects
with the Securities Act and the applicable
rules and regulations of the Commission thereunder, (iv)the Prospectus, as amended or
supplemented, if applicable, when filed complied in all material respects with the
Securities Act and the applicable rules and regulations of the Commission thereunder,
(v)the Registration Statement as of the date hereof does 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, (vi)the Time of Sale Prospectus
does not, and at the time of each sale of the Shares in connection with the offering when
the Prospectus is not yet available to prospective purchasers and at the Closing Date (as
defined in Section 4), the Time of Sale Prospectus, as then amended or supplemented by the
Company, 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, (vii)each issuer free writing
prospectus, including each electronic road show, if any, when considered together with the
Time of Sale Prospectus, does 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 and (viii)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, however, that the representations and warranties set forth in this
paragraph do not apply to statements in or omissions from the Registration Statement, the
Time of Sale Prospectus, the Prospectus or any issuer free writing prospectus based upon
information relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use therein.
(c) The Company is not an “ineligible issuer” in connection with the offering
pursuant to Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus
that the Company is required to file pursuant to Rule 433(d) under the Securities Act has
been, or will be, filed with the Commission in accordance with the requirements of the
Securities Act and the applicable rules and regulations of the Commission thereunder.
Each free writing prospectus that the Company has filed, or is required to file, pursuant
to Rule 433(d) under the Securities Act, or that was prepared by or on behalf of or used
or referred to by the Company, complies or will comply in all material respects with the
requirements of the Securities Act and the applicable rules and regulations of the
Commission thereunder. Except for the free writing prospectuses, if any, identified in
Schedule III hereto forming part of the Time of Sale Prospectus, and electronic road
shows, if any, each furnished to you before first use, the Company has not prepared, used
or referred to, and will not,
without your prior consent, prepare, use or refer to, any free writing prospectus.
(d) 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
Time of Sale Prospectus and 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.
(e) 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 Time of Sale
Prospectus and 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 Gramercy Alumina LLC and St. Xxx Bauxite Limited (in each of which the Company
owns a 50% interest), are owned by the Company either directly or through wholly-owned
subsidiaries, free and clear of all liens, encumbrances, equities or claims except for
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.
(f) This Agreement has been duly authorized, executed and delivered by the Company.
(g) The authorized capital stock of the Company conforms as to legal matters to the
description thereof contained in each of the Time of Sale Prospectus and the Prospectus.
(h) The shares of Common Stock outstanding prior to the issuance of the Shares
(including shares of Common Stock underlying the outstanding Global Depositary Receipts of
the Company) have been duly authorized and are validly issued, fully paid and
non-assessable.
(i) The Shares 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 of, and the performance by the Company
of its obligations under, this Agreement 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, filing 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 this Agreement except such as have been obtained or such
as may be required for the listing of the shares on the NASDAQ Global Market or 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 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 Time of Sale Prospectus and 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 filed as part of the Registration Statement 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 and the application of the proceeds thereof as described in the Time of Sale
Prospectus and 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) Other than as disclosed in the Time of Sale Prospectus and the Prospectus, 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, be reasonably likely to have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(p) Other than as disclosed in the Time of Sale Prospectus and 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, any related constraints on operating activities and any
potential liabilities to third parties) which would, singly or in the aggregate, be
reasonably likely to have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(q) Except for the Registration Rights Agreement, dated July 7, 2008, between the
Company and Glencore Investment Pty Ltd (the “Hedge Unwind Registration Rights
Agreement”), 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 Global Select Market to list the Shares
for quotation on the NASDAQ Global Select 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, be reasonably likely to 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 (other than Environmental
Laws), 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, be reasonably likely to have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
(t) Subsequent to the date as of which information is given in the Time of Sale
Prospectus and 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
liability or obligation, direct or contingent, nor entered into any transaction not in the
ordinary course of business, which, in either case, individually or in the aggregate, is
material with respect to the Company and its subsidiaries, taken as a whole; (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 Time of Sale Prospectus and Prospectus.
(u) 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 be reasonably
likely to have a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(v) No 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, threatened or imminent labor disturbances by the employees of any of its
principal suppliers, manufacturers or contractors, that, in each such case, would, singly
or in the aggregate, be reasonably likely to have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(w) 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 the Company
believes 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 Time of
Sale Prospectus and the Prospectus.
(x) Except as described in the Time of Sale Prospectus and the Prospectus, the
Company and its subsidiaries possess all certificates, authorizations and permits (other
than permits, licenses or other approvals required under applicable Environmental Laws)
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 their properties
and to carry on their business as conducted as of the date hereof, except such as would
not, singly or in the aggregate, be reasonably likely to 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 be
reasonably likely to have a material adverse effect on the Company and its subsidiaries,
taken as a whole, except as described in the Time of Sale Prospectus and the Prospectus.
(y) Except as disclosed in the Time of Sale Prospectus and 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.
(z) The Company and each of its subsidiaries maintains 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.
(aa) The financial statements of the Company included or incorporated by reference in
the Time of Sale Prospectus and the Prospectus present fairly in all material respects the
consolidated financial position of the Company and its consolidated 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.
(bb) As of the date hereof, 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 as otherwise disclosed in the Registration Statement, the Time of
Sale Prospectus and the Prospectus.
(cc) Deloitte & Touche LLP, who have certified certain financial statements of the
Company and its consolidated subsidiaries, are independent public accountants as required
by the Securities Act and the rules and regulations of the Commission thereunder.
(dd) The Company is not engaged in discussions regarding any possible acquisitions or
dispositions that are required to be described in the Registration Statement, the Time of
Sale Prospectus or the Prospectus and are not so described.
(ee) Schedule II 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”).
(ff) The agreements and other documents filed as exhibits to the Company’s Annual
Report on Form 10-K for the year ended December 31, 2007 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.
(gg) Neither the Company nor any of its subsidiaries nor, to the Company’s knowledge,
any director, officer, employee, agent or affiliate of the Company or of any of its
subsidiaries, has taken any action in furtherance of an offer, payment, promise to pay, or
authorization or approval of the payment or giving of money, property, gifts or anything
else of value, directly or indirectly, to any “foreign official” (as such term is defined
in the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations
thereunder (the “FCPA”)) to influence official action or secure an improper advantage; and
the Company and its subsidiaries and, to the Company’s knowledge, its affiliates have
conducted their businesses in compliance with the FCPA and have instituted and maintain
policies and procedures designed to promote and achieve compliance with such laws.
(hh) The operations of the Company and its subsidiaries are and have been conducted
at all times in material compliance with the applicable anti-money laundering statutes of
jurisdictions where the Company and its subsidiaries conduct business, the rules and
regulations thereunder and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency (collectively, the “Anti-Money
Laundering Laws”), and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company or any of
its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best
knowledge of the Company, threatened.
(ii) (i) The Company represents that neither the Company nor any of its subsidiaries
or, to the knowledge of the Company, any director, officer, employee, agent, or affiliate
of the Company, is an individual or entity (“Person”) that is, or is owned or controlled
by a Person that is:
(A) the subject of any sanctions administered or enforced by the U.S.
Department of Treasury’s Office of Foreign Assets Control (“OFAC”), the European
Union (“EU”), or other relevant sanctions authority (collectively, “Sanctions”),
nor
(B) located, organized or resident in a country or territory that is the
subject of Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran,
North Korea, Sudan and Syria).
(ii) The Company will not, directly or indirectly, use the proceeds of the offering,
or lend, contribute or otherwise make available such proceeds to any subsidiary, joint
venture partner or other Person for the purpose of financing any activities or business of
or with any Person or in any country or territory that, at the time of such financing, is
the subject of Sanctions.
2. Agreements to Sell and Purchase. The Company 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 the Company at $4.275 a share (the “Purchase Price”) the respective numbers of Firm
Shares set forth in Schedule I hereto opposite its name.
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 3,675,000 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 4 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.
The Company hereby agrees that it will not, without the prior written consent of Credit Suisse
Securities (USA) LLC and Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Underwriters, 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 Amended and Restated 1996 Stock Incentive Plan as in effect on the
date hereof, or (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 upon the vesting of performance shares or
restricted stock outstanding on the date hereof and disclosed in the Time of Sale Prospectus and
the Prospectus.
3. Terms of Public Offering. The Company is advised by you that the Underwriters propose to
make a public offering of their respective portions of the Shares as soon after the Registration
Statement and this Agreement have become effective as in your judgment is advisable. The Company
is further advised by you that the Shares are to be offered to the public initially at $4.50 a share
(the “Public Offering Price”) and to certain dealers selected by you at a price that represents a
concession not in excess of $0.135 a share under the Public Offering Price.
4. Payment and Delivery. Payment for the Firm Shares shall be made to the Company 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 February 3,
2009, or at such other time on the same or such other date, not later than February 10, 2009, 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 2 or at such other time on the same or
on such other date, in any event not later than March 13, 2009, as shall be designated in
writing by you.
The Firm Shares and the 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 the
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.
5. Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters
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 Time of Sale Prospectus as of 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 Time of Sale 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 5(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 Pillsbury
Xxxxxxxx Xxxx Xxxxxxx 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 described in the Time of Sale Prospectus and the
Prospectus;
(ii) each of the Significant Subsidiaries, is validly existing as a
corporation, limited liability company, limited partnership or general
partnership in good standing under the laws of the jurisdiction of its
organization, has the corporate, limited liability company, limited partnership
or general partnership power and authority to own its property and to conduct
its business as described in the Time of Sale Prospectus and the Prospectus;
(iii) the authorized capital stock of the Company conforms as to legal
matters in all material respects to the description thereof contained in each of
the Time of Sale Prospectus and 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 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 of, and the performance by
the Company of its obligations under, this Agreement will not contravene any
provision of applicable law of any jurisdiction in the U.S. or the certificate
of incorporation or by-laws or other constituent 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, 2007, 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 this Agreement, except such
as have been obtained or such as may be required for the listing of the shares
on the NASDAQ Global Select Market or 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);
(viii) the statements relating to legal matters, proceedings or documents
(A)included in the Time of Sale Prospectus and the Prospectus under the captions
“Certain Relationships and Related Transactions—Recent Transactions with
Glencore”, “Description of Stock,” “Underwriters,” and “Certain United States
Federal Tax Considerations for Non-U.S. Holders,” (B)included in the
Registration Statement in Item 15, and (C)included in the Company’s Annual
Report on Form 10-K for the year ended December 31, 2007 under “Item 3 – Legal
Proceedings” and incorporated by reference in the Time of Sale Prospectus and
the Prospectus, in each case insofar as such statements constitute summaries of
legal matters or proceedings referred to therein, fairly summarize in all
material respects such legal matters or proceedings and insofar as such
statements constitute summaries of documents described therein, accurately
describe the terms and provisions of such documents;
(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 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 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; and
(xi) (A) in the opinion of such counsel, the Registration Statement and the
Prospectus (except for the financial statements, including the notes thereto and
related schedules, and the other financial, accounting and statistical data
included therein or omitted therefrom as to which such counsel need not express
any comment) appear on their face to be appropriately responsive in all material
respects to the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder, and (B) 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 Time of Sale Prospectus, and the Prospectus, and no
facts have come to the attention of such counsel that cause such counsel to
believe that (1) the Registration Statement (except for the financial
statements, including the notes thereto and related schedules, and the other
financial, accounting and statistical data included therein or omitted therefrom
as to which such counsel need not express any comment), when it 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, (2) the Time of Sale Prospectus (except for
the financial statements, including the notes thereto and related schedules, and
other financial, accounting and statistical data included therein or omitted
therefrom as to which such counsel need not express any comment) as of the date
of this Agreement contained or contains any 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 or (3) the Prospectus (except for the financial statements,
including the notes thereto and related schedules, and other financial,
accounting and statistical data included therein or omitted therefrom as to
which such counsel need not express any comment) as amended or supplemented, if
applicable, as of its date and as of the Closing Date contained or contains any
untrue statement of a material fact 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.
Xxxxxxx, Executive Vice President, General Counsel and Secretary of the Company, dated the
Closing Date to the effect that:
(i) the Company is duly qualified to transact business as a foreign
corporation and is in good standing in each jurisdiction in the United States 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 be reasonably likely to have a
material adverse effect on the Company and its subsidiaries, taken as a whole;
(ii) each of the Significant Subsidiaries is duly qualified to transact
business as a foreign corporation, limited
liability company, limited partnership or general partnership and is in
good standing in each jurisdiction in the United States 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 be reasonably likely to have a material adverse effect
on the Company and its subsidiaries, taken as a whole;
(iii) the shares of Common Stock outstanding prior to the issuance of the
Shares have been duly authorized and are validly issued, fully paid and
non-assessable;
(iv) 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,
the limited partnership act or the general 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 Gramercy Alumina LLC and St. Xxx Bauxite Limited (in each of which
the Company owns a 50% interest), are owned by the Company either directly or
through wholly-owned subsidiaries, free and clear of all liens, encumbrances,
equities or claims except for limitations 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;
(v) except for the Hedge Unwind Registration Rights Agreement, 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 Securities 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 Securities Act;
(vi) 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 as otherwise disclosed in the Registration
Statement;
(vii) 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 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;
(viii) other than as disclosed in the Time of Sale Prospectus or the
Prospectus, 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;
(ix) the statements relating to legal matters, proceedings or documents
included in the Company’s Annual Report on Form 10-K for the year ended December
31, 2007 under “Item 1 – Business” and incorporated by reference in the Time of
Sale Prospectus and the Prospectus, insofar as such statements constitute
summaries of legal matters or proceedings referred to therein, fairly summarize
in all material respects such legal matters or proceedings, and insofar as such
statements constitute summaries of documents described therein, accurately
describe the terms and provisions of such documents; and
(x) (A) in the opinion of such counsel (1) 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, accounting and statistical data included therein or omitted
therefrom, as to which such counsel need not express any comment) appeared on
its face to be appropriately responsive as
of its filing date in all material respects to the requirements of the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, and (2) the Registration Statement and the Prospectus (except for
the financial statements, including the notes thereto and related schedules, and
the other financial, accounting and statistical data included therein or omitted
therefrom as to which such counsel need not express any comment) appear on their
face to be appropriately responsive in all material respects to the requirements
of the Securities Act and the applicable rules and regulations of the Commission
thereunder, and (B) 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 Time of Sale
Prospectus, and the Prospectus, and no facts have come to the attention of such
counsel that cause such counsel to believe that (1) the Registration Statement
(except for the financial statements, including the notes thereto and related
schedules, and the other financial, accounting and statistical data included
therein or omitted therefrom as to which such counsel need not express any
comment), when it 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, (2) the Time of Sale
Prospectus (except for the financial statements, including the notes thereto and
related schedules, and other financial, accounting and statistical data included
therein or omitted therefrom as to which such counsel need not express any
comment) as of the date of this Agreement contained or contains any 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 or (3) the Prospectus
(except for the financial statements, including the notes thereto and related
schedules, and other financial, accounting and statistical data included therein
or omitted therefrom as to which such counsel need not express any comment) as
amended or supplemented, if applicable, as of its date and as of the Closing
Date contained or contains any untrue statement of a material fact 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 Xxxxx Xxxx
& Xxxxxxxx, counsel for the Underwriters, dated the Closing Date, covering the matters
referred to in Sections 5(c)(v), 5(c)(vi), 5(c)(viii) (but only as to the statements in
each of the Time of
Sale Prospectus and the Prospectus under “Underwriters”) and clauses 5(c)(xi)(A),
5(c)(xi)(B)(2) and 5(c)(xi)(B)(3) above.
With respect to clauses (A) and (B) of the last paragraph of Section 5(c)(xi) above,
Xxxxx Xxxx & Xxxxxxxx may state that their beliefs are based upon their participation in
the preparation of the Registration Statement, the Time of Sale Prospectus, the 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.
The opinions of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP and Xxxxxx X. Xxxxxxx described
in Sections 5(c) and 5(d) above shall be rendered to the Underwriters at the request of
the Company and shall so state therein.
(f) 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 Deloitte & Touche LLP, independent public
accountants for the Company, 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 in
the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that
the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the
date hereof.
(g) 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.
(h) The Underwriters shall have received, on each of the date hereof and on the
Closing Date, a certificate, dated the date hereof or the Closing Date, as the case may
be, signed by the Chief Financial Officer of the Company, in form and substance
satisfactory to the Underwriters, certifying that he has carefully reviewed the
information set forth in the Time of Sale Prospectus and the Prospectus marked in the
excerpts from such documents attached as an exhibit to such certificate, and that after
reasonable investigation, to his knowledge and subject to the qualifications set forth in
the Time of Sale Prospectus and the Prospectus, the information set forth therein is
accurate in all material respects at the respective dates and for the respective periods
indicated and, in the case of estimates, represent the best information available to the
Company using
reasonable assumptions specified in the Time of Sale Prospectus and the Prospectus.
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.
6. 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, 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 paragraphs (e) or (f) below, copies of the Time of Sale Prospectus, the
Prospectus, any documents incorporated by reference therein and any supplements and
amendments thereto or to the Registration Statement, in each case in such quantities as
you may reasonably request.
(b) Before amending or supplementing the Registration Statement, the Time of Sale
Prospectus 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) To furnish to you a copy of each proposed free writing prospectus to be prepared
by or on behalf of, used by, or referred to by the Company and not to use or refer to any
proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in an Underwriter or the Company being
required to file with the Commission pursuant to Rule 433(d) under the Securities Act a
free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter
otherwise would not have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares
at a time when the Prospectus is not yet available to prospective purchasers and any event
shall occur or condition exist as a
result of which it is necessary to amend or supplement the Time of Sale Prospectus in
order to make the statements therein, in the light of the circumstances under which they
were made, not misleading, or if any event shall occur or condition exist as a result of
which the Time of Sale Prospectus conflicts with the information contained in the
Registration Statement then on file, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply
with applicable law, forthwith to prepare, file with the Commission and furnish, at its
own expense, to the Underwriters and to any dealer upon request, either amendments or
supplements to the Time of Sale Prospectus so that the statements in the Time of Sale
Prospectus as so amended or supplemented will not, in the light of the circumstances under
which they were made when delivered to a prospective purchaser, be misleading, or so that
the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the
Registration Statement, or so that the Time of Sale Prospectus, as amended or
supplemented, will comply with applicable law.
(f) 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 (or in lieu thereof the
notice referred to in Rule 173(a) of the Securities Act) 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 order to make the statements therein, in the light of the circumstances under which
they were made when the Prospectus (or in lieu thereof the notice referred to in Rule
173(a) of the Securities Act) 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 under which they were made, when
the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities
Act) is delivered to a purchaser, be misleading, or so that the Prospectus, as amended or
supplemented, will comply with applicable law.
(g) To use its reasonable efforts to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably request.
(h) 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 December 31, 2008 that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the Commission
thereunder.
(i) To ensure that on the Closing Date, subject to notice of issuance, the Shares
shall have been duly admitted for quotation on the NASDAQ Global Select Market.
(j) To use the net proceeds received in connection with the offering of Shares in the
manner described in the “Use of Proceeds” section of the Time of Sale Prospectus.
7. Expenses. Whether or not the transactions contemplated in this Agreement are consummated or
this Agreement is terminated, the Company agrees to pay or cause to be paid all expenses incident
to the performance of its obligations under this Agreement, including: (i) the fees, disbursements
and expenses of the Company’s counsel and the Company’s accountants 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 Time of Sale Prospectus, the Prospectus, any issuer free writing prospectus and
amendments and supplements to any of the foregoing, including the filing fees payable to the
Commission relating to the Shares (within the time required by Rule 456(b)(1), if applicable), 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 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 6(g) 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 Global
Select 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.
8. Covenants of the Underwriters. Each Underwriter severally covenants with the Company not
to take any action that would result in the Company being required to file with the Commission
pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf
of such Underwriter that otherwise would not be required to be filed by the Company thereunder, but
for the action of the Underwriter.
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, the Time of Sale
Prospectus, any issuer free writing prospectus, any Company information that the Company has filed,
or is required to file, pursuant to Rule 433(d) under the Securities Act, the Prospectus or any
amendment or supplement 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 Underwriter agrees, severally and not jointly, to indemnify and hold harmless 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 Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such
Underwriter, 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 Time of Sale Prospectus, any issuer free writing prospectus, the
Prospectus or any amendment or supplement thereto.
(c) 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) or 9(b),
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 and
(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 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 Securities (USA) LLC 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. 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 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 (x) includes an unconditional release
of such indemnified party from all liability on claims that are the subject matter of such
proceeding and (y) does not include a statement as to or an admission of fault or culpability or a
failure to act, by or on behalf of any indemnified party.
(d) To the extent the indemnification provided for in Section 9(a) or 9(b) 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(d)(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(d)(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 Company 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 the Company 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 Company 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
Company 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.
(e) The Company 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(d). 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.
(f) The indemnity and contribution provisions contained in this Section 9 and the
representations, warranties and other statements of the Company 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, or by or on behalf of 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 Global Select 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 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 Time of Sale Prospectus or 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 and the Company 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 or the Company. In any such case either you or the Company
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, in the Time of Sale
Prospectus, 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
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 the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement, the Company 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. Entire Agreement. This Agreement, together with any contemporaneous written agreements
and any prior written agreements (to the extent not superseded by this Agreement) that relate to
the offering of the Shares, represents the entire agreement between the Company and the
Underwriters with respect to the preparation of any preliminary prospectus, the Time of Sale
Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the Shares.
13. Absence of Fiduciary Relationship. The Company acknowledges that in connection with the
offering of the Shares: (i) the Underwriters have acted at arms’ length, are not agents of, and owe
no fiduciary duties to, the Company or any other person, (ii) the Underwriters owe the Company only
those duties and obligations set forth in this Agreement and prior written agreements (to the
extent not superseded by this Agreement), if any, and (iii) the Underwriters may have interests
that differ from those of the Company. The Company waives to the fullest extent permitted by
applicable law any claims it may have against the Underwriters arising from an alleged breach of
fiduciary duty in connection with the offering of the Shares. The Underwriters in their capacity
as such are not advising the Company or any other person as to any legal, tax, investment,
accounting or regulatory matters in any jurisdiction. The Company shall consult with its own
advisors concerning such matters and shall be responsible for making its own independent
investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall
have no responsibility or liability to the Company with respect thereto. Any review by the
Underwriters of the Company, the transactions contemplated hereby or other matters relating to such
transactions will be performed solely for the benefit of the Underwriters and shall not be on
behalf of the Company.
14. 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.
15. Applicable Law. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
16. 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: | /s/ Xxxxxxx Xxxxxxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxxxxxx | |||
| Title: | Vice President & Assistant General Counsel |
|||
Accepted as of the date hereof
Credit Suisse Securities (USA) LLC
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Acting severally on behalf of themselves and the several Underwriters named in Schedule I hereto
By: |
Credit Suisse Securities (USA) LLC | |||
By: |
/s/ Xxxxxx Xxxx | |||
| Name: Xxxxxx Xxxx | ||||
| Title: Director | ||||
By: |
Xxxxxx Xxxxxxx & Co. Incorporated | |||
By: |
/s/ Xxxx Xxxxxx | |||
| Name: Xxxx Xxxxxx | ||||
| Title: Executive Director |
SCHEDULE I
| Underwriter | Number of Firm Shares To Be Purchased |
|||
Credit Suisse Securities (USA) LLC |
12,250,000 | |||
Xxxxxx Xxxxxxx & Co. Incorporated |
12,250,000 | |||
Total: |
24,500,000 | |||
SCHEDULE II
Significant Subsidiaries
| JURISDICTION OF | ||
| INCORPORATION OR | ||
| COMPANY NAME | ORGANIZATION | |
Berkeley Aluminum, Inc.
|
Delaware | |
Century Aluminum of Kentucky General
Partnership
|
Kentucky | |
NSA General Partnership
|
Kentucky | |
Nordural Grundartangi ehf
|
Iceland | |
Nordural ehf
|
Iceland | |
Century Bermuda I Limited
|
Bermuda | |
Century Bermuda II Limited
|
Bermuda | |
SCHEDULE III
1. Time of Sale Prospectus
I, Free Writing Prospectus dated January 28, 2009
2. Pricing Information
Price to
public: $4.50
EXHIBIT A
[FORM OF LOCK-UP LETTER]
January ___, 2009
Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, New York 10010
New York, New York 10010
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
As representatives of the several Underwriters referred to below
Dear Sirs and Mesdames:
The undersigned understands that Credit Suisse Securities (USA) LLC (“Credit Suisse”) 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”) providing for the public offering (the “Public Offering”) by the several underwriters,
including Credit Suisse and Xxxxxx Xxxxxxx and the other underwriters for which they act as
representatives (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 Credit Suisse 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) the cashless exercise of an option outstanding as of the
date hereof that will expire during the restricted period referred to in the foregoing sentence;
provided that (i) such transaction does not involve the sale or transfer of any shares of Common
Stock other than to the Company and (ii) the shares received upon such exercise shall be subject to
the terms of the Lock-Up Agreement, (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 150,000 shares of Common Stock, (e) transfers of
Common Stock or securities convertible into Common Stock pursuant to the bona fide acquisition of
the Company by a third party by way of merger, consolidation, stock exchange or tender offer, (f)
transfers of shares of Common Stock as bona fide gifts, and (g) transfers of shares of Common Stock
to a trust where the beneficiaries of the trust are drawn solely from a group consisting of the
undersigned and immediate family members of the undersigned; provided that in the case of any
transfer pursuant to clause (f) or (g), (A) each transferee or trustee agrees to enter into a
lock-up letter substantially in the form of this Lock-Up Agreement and (B) 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. “Immediate family
member” of a person means the spouse, lineal descendants, father, mother, brother, sister,
father-in-law, mother-in-law, brother-in-law and sister-in-law of such person. In addition, the
undersigned agrees that, without the prior written consent of Credit Suisse 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.
Notwithstanding any provisions set forth in this Lock-Up Agreement to the contrary, this
Lock-Up Agreement shall terminate on February 28, 2009 if the Company and the Underwriters shall
not have executed the Underwriting Agreement by such date.
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.
| Very truly yours, | ||
| (Name) | ||
| (Address) |
Schedule I
Xxxxx X. Xxxxxx
Xxxxxxx X. Bless
Xxxxx X. Xxxx
Xxxxxx X. Xxxxxxx
Xxxxx Xxxxxxxxx
Xxxxxx Xxxxxxx
Xxxxxxxx X. Xxxx
Xxxxxxx X. Xxxxxxxxxxxx
Xxxxx X. Xxxx
Xxxx Xxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxx X. Xxxxxxxx
Xxxxx X. Xxxxx
Xxxxxxxxx X. Xxxxxxx
Xxxx X. X’Xxxxx
Xxxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxxxx
Xxxxxxx X. Bless
Xxxxx X. Xxxx
Xxxxxx X. Xxxxxxx
Xxxxx Xxxxxxxxx
Xxxxxx Xxxxxxx
Xxxxxxxx X. Xxxx
Xxxxxxx X. Xxxxxxxxxxxx
Xxxxx X. Xxxx
Xxxx Xxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxx X. Xxxxxxxx
Xxxxx X. Xxxxx
Xxxxxxxxx X. Xxxxxxx
Xxxx X. X’Xxxxx
Xxxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxxxx
