SCHEDULE 13D/A CENTURY ALUMINUM COMPANY - Euroland
SCHEDULE 13D/A CENTURY ALUMINUM COMPANY - Euroland
SCHEDULE 13D/A CENTURY ALUMINUM COMPANY - Euroland
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UNITED STATES<br />
SECURITIES AND EXCHANGE COMMISSION<br />
Washington, D.C. 20549<br />
<strong>SCHEDULE</strong> <strong>13D</strong>/A<br />
Under the Securities Exchange Act of 1934<br />
(Amendment No. 5)<br />
<strong>CENTURY</strong> <strong>ALUMINUM</strong> <strong>COMPANY</strong><br />
(Name of Issuer)<br />
COMMON STOCK, $0.01 Par Value<br />
(Title of Class of Securities)<br />
156431 10 8<br />
(CUSIP Number)<br />
Company Secretary<br />
Glencore Holding AG<br />
Baarermattstrasse 3, P.O. Box 666<br />
CH−6341 Baar, Switzerland<br />
Phone: 41−41−709−2563<br />
(Name, Address and Telephone Number of Person<br />
Authorized to Receive Notices and Communications)<br />
January 28, 2009<br />
(Date of Event which Requires Filing of this Statement)<br />
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule <strong>13D</strong>, and is filing<br />
this schedule because of §§ 240.13d−1(e), 240.13d−1(f) or 240.13d−1(g), check the following box. [ ]<br />
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d−7 for other<br />
parties to whom copies are to be sent.<br />
The information required on the remainder of this cover page shall not be deemed to be ‘‘filed’’ for the purpose of Section 18 of the Securities<br />
Exchange Act of 1934 (‘‘Act’’) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act<br />
(however, see the Notes).<br />
1
CUSIP No. 156431 10 8<br />
Number of<br />
Shares<br />
Beneficially<br />
Owned by<br />
Each<br />
Reporting<br />
Person With<br />
1.<br />
Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). Glencore Investment Pty<br />
Ltd<br />
2. Check the Appropriate Box if a Member of a Group (See Instructions)<br />
(a) .............................................................................................................................<br />
(b) .............................................................................................................................<br />
3. SEC Use Only ...........................................................................................................................<br />
4. Source of Funds (See Instructions)<br />
OO<br />
5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or<br />
2(e) ........................................................................................................................<br />
6. Citizenship or Place of Organization<br />
Western Australia<br />
7. Sole Voting Power<br />
None....................................................................................................………...<br />
8. Shared Voting Power<br />
14,820,136 shares (See Item 5)<br />
9. Sole Dispositive Power<br />
None...............................................................……………………...................<br />
10. Shared Dispositive Power<br />
14,820,136 shares (See Item 5)<br />
11. Aggregate Amount Beneficially Owned by Each Reporting Person<br />
14,820,136 shares (See Item 5)<br />
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)<br />
Not applicable<br />
13. Percent of Class Represented by Amount in Row (11)<br />
30.2%<br />
14. Type of Reporting Person (See Instructions)<br />
CO<br />
2
CUSIP No. 156431 10 8<br />
Number of<br />
Shares<br />
Beneficially<br />
Owned by<br />
Each<br />
Reporting<br />
Person With<br />
1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). Glencore Investments AG<br />
2. Check the Appropriate Box if a Member of a Group (See Instructions)<br />
(a) .............................................................................................................................<br />
(b) .............................................................................................................................<br />
3. SEC Use Only ...........................................................................................................................<br />
4. Source of Funds (See Instructions)<br />
OO<br />
5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or<br />
2(e) ........................................................................................................................<br />
6. Citizenship or Place of Organization<br />
Switzerland<br />
7. Sole Voting Power<br />
None....................................................................................................………...<br />
8. Shared Voting Power<br />
14,820,136 shares (See Item 5)<br />
9. Sole Dispositive Power<br />
None...............................................................……………………...................<br />
10. Shared Dispositive Power<br />
14,820,136 shares (See Item 5)<br />
11. Aggregate Amount Beneficially Owned by Each Reporting Person<br />
14,820,136 shares (See Item 5)<br />
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)<br />
Not applicable.<br />
13. Percent of Class Represented by Amount in Row (11)<br />
30.2%<br />
14. Type of Reporting Person (See Instructions)<br />
CO, HC<br />
3
CUSIP No. 156431 10 8<br />
Number of<br />
Shares<br />
Beneficially<br />
Owned by<br />
Each<br />
Reporting<br />
Person With<br />
1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). Glencore International AG<br />
2. Check the Appropriate Box if a Member of a Group (See Instructions)<br />
(a) .............................................................................................................................<br />
(b) .............................................................................................................................<br />
3. SEC Use Only ...........................................................................................................................<br />
4. Source of Funds (See Instructions)<br />
OO<br />
5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or<br />
2(e) ........................................................................................................................<br />
6. Citizenship or Place of Organization<br />
Switzerland<br />
7. Sole Voting Power<br />
None....................................................................................................………....<br />
8. Shared Voting Power<br />
14,820,136 shares (See Item 5)<br />
9. Sole Dispositive Power<br />
None...............................................................……………………...................<br />
10. Shared Dispositive Power<br />
14,820,136 shares (See Item 5)<br />
11. Aggregate Amount Beneficially Owned by Each Reporting Person<br />
14,820,136 shares (See Item 5)<br />
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)<br />
Not applicable.<br />
13. Percent of Class Represented by Amount in Row (11)<br />
30.2%<br />
14. Type of Reporting Person (See Instructions)<br />
CO, HC<br />
4
CUSIP No. 156431 10 8<br />
Number of<br />
Shares<br />
Beneficially<br />
Owned by<br />
Each<br />
Reporting<br />
Person With<br />
1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). Glencore Holding AG<br />
2. Check the Appropriate Box if a Member of a Group (See Instructions)<br />
(a) .............................................................................................................................<br />
(b) .............................................................................................................................<br />
3. SEC Use Only ...........................................................................................................................<br />
4. Source of Funds (See Instructions)<br />
OO<br />
5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or<br />
2(e) ........................................................................................................................<br />
6. Citizenship or Place of Organization<br />
Switzerland<br />
7. Sole Voting Power<br />
....................................................................................................………......<br />
8. Shared Voting Power<br />
14,820,136 shares (See Item 5)<br />
9. Sole Dispositive Power<br />
...............................................................……………………...................<br />
10. Shared Dispositive Power<br />
14,820,136 shares (See Item 5)<br />
11. Aggregate Amount Beneficially Owned by Each Reporting Person<br />
14,820,136 shares (See Item 5)<br />
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)<br />
Not applicable.<br />
13. Percent of Class Represented by Amount in Row (11)<br />
30.2%<br />
14. Type of Reporting Person (See Instructions)<br />
CO, HC<br />
5
Explanatory Note:<br />
This is the fifth amendment (“Amendment No. 5”) to the statement on Schedule <strong>13D</strong> for Glencore AG, Glencore Investment Pty Ltd.<br />
(“Glencore Investment Pty”), Glencore Investments AG (“Glencore Investments AG”), Glencore International AG (“Glencore International”) and Glencore<br />
Holding AG (“Glencore Holding”), which was originally filed with the Securities and Exchange Commission on April 12, 2001, and amended on May 25,<br />
2004, November 27, 2007, July 8, 2008 and July 21, 2008, relating to the common stock, par value $0.01 per share (“Common Stock”) of Century<br />
Aluminum Company (the “Company”).<br />
Unless otherwise indicated herein, each capitalized term used but not defined herein shall have the meaning assigned to such term in the<br />
original Schedule <strong>13D</strong>, as amended through the date hereof (the “Schedule <strong>13D</strong>”).<br />
Item 2. Identity and Background<br />
Schedule I attached to the Schedule <strong>13D</strong>, which contains information with respect to the identity and background of each executive officer and<br />
director of each Reporting Person in response to paragraphs (a), (b), (c) and (f) of Item 2, is hereby amended and restated in its entirety by Schedule I<br />
attached hereto. All other information in Item 2 of the Schedule <strong>13D</strong> remains the same.<br />
Item 4. Purpose of the Transaction<br />
Item 4 of the Schedule <strong>13D</strong> is hereby amended by adding the following at the end thereof:<br />
In connection with a proposed public offering by the Company of newly−issued shares of Common Stock (the “Public Offering”), Glencore<br />
AG and the Company have entered into an Agreement to Amend Certain Provisions of Standstill and Governance Agreement (the “SAGA Amendment”),<br />
dated January 27, 2009. The SAGA Amendment provides for certain amendments to the Standstill and Governance Agreement (the “SAGA”), dated July 7,<br />
2008, that would allow the Reporting Persons and their affiliates to increase their beneficial ownership percentage of the Company’s Common Stock from<br />
their current ownership percentage of approximately 30.2%, and to exercise voting with respect to a greater percentage of shares than they are now<br />
permitted to under the SAGA to the extent required to permit them to vote any shares acquired by them in the proposed Public Offering.<br />
Item 5. Interest in Securities of the Issuer<br />
Item 5 of the Schedule <strong>13D</strong> is hereby amended and restated in its entirety as follows:<br />
(a) The Reporting Persons beneficially own 14,820,136 shares of Common Stock, or 30.2% of the Company’s outstanding Common<br />
Stock. The shares reported as beneficially owned by the Reporting Persons: (i) do not include the 15,578,718 shares of Common Stock issuable upon<br />
conversion of the 155,787.18 shares of Preferred Stock owned by the Reporting Persons, which are convertible only (a) upon the occurrence of events that<br />
have not transpired and that are outside of the control of the Reporting Persons, or (b) in circumstances that would not result in an increase in the percentage<br />
of shares of Common Stock beneficially owned by the Reporting Persons, and (ii) include 22,500 shares subject to presently exercisable options and 1,047<br />
shares of restricted Common Stock that vest in June 2009 or upon the holder’s earlier termination of services as a director of the Company due to death or<br />
disability, each held directly by Mr. Willy R. Strothotte, who holds such options and shares as nominee for Glencore Investment Pty. The aggregate number<br />
and percentage of shares of Common Stock beneficially owned by the persons (other than the Reporting Persons) named in Item 2 is set forth opposite their<br />
names on Schedule I hereto. The beneficial ownership percentages reported herein are based upon the 49,052,692 shares of Common Stock reported as<br />
outstanding as of December 31, 2008 in the Company’s prospectus supplement, dated January 27, 2009, to the Registration Statement on Form S−3 filed<br />
with the Securities and Exchange Commission on May 29, 2007.<br />
6
(b) The Reporting Persons share the power to vote or to direct the vote and dispose or to direct the disposition of 14,820,136 shares of<br />
Common Stock. To the best knowledge of the Reporting Persons, each person (other than the Reporting Persons and any person holding shares as nominee<br />
for the Reporting Persons) named in Item 2 has the sole power to vote or to direct the vote and dispose or to direct the disposition of the number of shares of<br />
Common Stock set forth opposite his name on Schedule I hereto.<br />
(c) None of the Reporting Persons nor, to their knowledge, any of the persons named in Item 2 have engaged in any transaction in any<br />
shares of Common Stock during the sixty days immediately preceding the date hereof, except as follows:<br />
Transaction Party Nature of Transaction Date of Transaction Number of Shares Price per Share<br />
Glencore Investment Pty Ltd. Acquisition (1) 12/31/2008 1,296 (1)<br />
(1) Represents Common Stock acquired upon the automatic conversion of 12.96 shares of the Company’s Series A Convertible Preferred Stock<br />
(“Preferred Stock”) in accordance with the terms of the Preferred Stock.<br />
(d) None.<br />
(e) Not applicable.<br />
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer<br />
Item 6 is hereby amended by adding the following to the end thereof:<br />
In connection with the Company’s proposed Public Offering, Glencore AG and the Company executed the SAGA Amendment. Under the<br />
SAGA Amendment Glencore AG and the Company agreed that (1) if the Reporting Persons or their affiliates purchase Common Stock in the Public<br />
Offering, then until April 7, 2009, they may beneficially own, and exercise voting rights with respect to, a number of shares of the Company’s Common<br />
Stock equal to the greater of (x) 28.5% of the outstanding Common Stock and (y) the quotient of: (a) the sum of (i) the number of shares of Common Stock<br />
that equals 28.5% of the Company’s outstanding Common Stock immediately prior to the Public Offering, and (ii) the number of shares purchased by<br />
Glencore AG in the Public Offering; divided by (b) the number of shares of Company Common Stock outstanding immediately following the Public<br />
Offering, even if such amount exceeds the 30.2% of Common Stock they currently hold. Following April 7, 2009, Glencore AG’s permitted ownership<br />
percentage shall be as set forth in the SAGA. The SAGA Amendment will become effective only if the Reporting Persons or their affiliates purchase<br />
additional shares of common stock in the proposed Public Offering.<br />
7
Also in connection with the proposed Public Offering, Glencore Investment Pty has agreed to enter into a Lock−Up Agreement (the “Lock−Up<br />
Agreement”) pursuant to which, without the prior written consent of Credit Suisse Securities (USA) LLC and Morgan Stanley & Co. Incorporated, as<br />
representatives of the underwriters of the Public Offering, it will not, during the period ending 90 days after the date of the final prospectus relating to the<br />
Public Offering: (1) offer, pledge, sell, contract to sell, grant any option, right to warrant to purchase, lend, or otherwise transfer or dispose of, directly or<br />
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<br />
other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock. The restrictions in<br />
the Lock−Up Agreement will not apply to certain transfers, including as part of a third party acquisition of the Company. The Lock−Up Agreement will not<br />
be effective if the proposed Public Offering is not consummated by February 10, 2009.<br />
The foregoing descriptions are subject to, and qualified in their entirety by reference to the full text of the SAGA Amendment and the<br />
Lock−Up Agreement which are attached hereto as Exhibits 2 and 3, and incorporated herein by reference.<br />
Item 7. Material to Be Filed as Exhibits<br />
1. Joint Filing Agreement, dated January 28, 2009<br />
2. Agreement to Amend Certain Provisions of Standstill and Governance Agreement, dated January 27, 2009<br />
3. Form of Lock−Up Agreement<br />
4. Power of Attorney (incorporated by reference to Exhibit 24.1 to Amendment No. 4 to Schedule <strong>13D</strong>, dated July 18, 2008, and filed by the Reporting<br />
Persons with the Securities and Exchange Commission on July 21, 2008)<br />
8
Signature<br />
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.<br />
Date: January 28, 2009<br />
Glencore Investment Pty Ltd<br />
By: /s/ Valarie A. Hing<br />
Name: Valarie A. Hing<br />
Title: Attorney−in−Fact<br />
Glencore Investments AG<br />
By: /s/ Valarie A. Hing<br />
Name: Valarie A. Hing<br />
Title: Attorney−in−Fact<br />
Glencore International AG<br />
By: /s/ Valarie A. Hing<br />
Name: Valarie A. Hing<br />
Title: Attorney−in−Fact<br />
Glencore Holding AG<br />
By: /s/ Valarie A. Hing<br />
Name: Valarie A. Hing<br />
Title: Attorney−in−Fact<br />
9
<strong>SCHEDULE</strong> I<br />
Set forth below are the names, business addresses and present principal occupations of the directors and executive officers of Glencore Investment Pty Ltd,<br />
Glencore Investments AG, Glencore International AG and Glencore Holding AG. The executive officers of each of Glencore Investment Pty Ltd, Glencore<br />
Investments AG, Glencore Holding AG and Glencore International AG are the same persons listed as directors of such company. Unless otherwise<br />
indicated, the present principal occupation of each person is with Glencore International AG. If no business address is given, the address is<br />
Baarermattstrasse 3, CH−6341, Baar, Switzerland. Unless otherwise indicated, all of the persons listed below are citizens of Switzerland. To the best<br />
knowledge of the Reporting Persons, except as set forth below, none of the persons listed below beneficially owns any shares of Common Stock of the<br />
Company.<br />
Directors of Glencore Investment Pty Ltd<br />
Name Principal Occupation Business address Share Ownership<br />
Steven N. Isaacs Chairman and Managing Director<br />
of Glencore Finance AG<br />
Richard James Marshall In−house Counsel of Glencore<br />
International AG<br />
Eric Diedrichsen Employee of Glencore<br />
International AG – Accounting<br />
Marc Ocksay Employee of Glencore<br />
International AG – Finance<br />
Ross Lind Employee of Glencore<br />
Investment Pty Ltd<br />
Victoria Marr<br />
(Citizen of Australia)<br />
Employee of Glencore Australia<br />
Pty Ltd<br />
Level 4, 30 The Esplanade,<br />
Perth, 6000, Australia<br />
Level 4, 30 The Esplanade,<br />
Perth, 6000, Australia<br />
10
Directors of Glencore Investments AG<br />
Name Principal Occupation Business address Share Ownership<br />
Willy R. Strothotte<br />
(Citizen of Germany)<br />
Steven F. Kalmin<br />
(Citizen of Australia)<br />
Chairman 23,547 shares of Common Stock (which<br />
includes 22,500 shares which are subject to<br />
options presently exercisable and 1,047<br />
shares which are subject to vesting in one<br />
year or earlier termination of service as a<br />
Company director due to death or<br />
disability). (1)<br />
Officer of Glencore International AG<br />
–<br />
Accounting<br />
Andreas P. Hubmann Officer of Glencore International AG<br />
–<br />
Accounting<br />
Directors of Glencore Holding AG:<br />
Name Principal Occupation Business address Share Ownership<br />
Willy R. Strothotte<br />
(Citizen of Germany)<br />
Ivan Glasenberg<br />
(Citizen of Australia)<br />
Chairman 23,547 shares of Common Stock (which<br />
includes 22,500 shares which are subject<br />
to options presently exercisable and 1,047<br />
shares which are subject to vesting in one<br />
year or earlier termination of service as a<br />
Company director due to death or<br />
disability). (1)<br />
Chief Executive Officer<br />
Andreas P. Hubmann Officer of Glencore International AG<br />
–<br />
Accounting<br />
Peter A. Pestalozzi Attorney, Pestalozzi Lachenal Patry<br />
Zurich Ltd.<br />
Lowenstrasse 1<br />
CH−8001 Zurich<br />
Switzerland<br />
11
Zbynek E. Zak Non−Executive Director;<br />
former CFO of Glencore International AG (retired)<br />
Craig A. Davis<br />
(Citizen of the US)<br />
Directors of Glencore International AG:<br />
Non−Executive Director; former Chairman and CEO<br />
of Century Aluminum Company (retired)<br />
Buetzenweg 16<br />
CH−6300 Zug<br />
Switzerland<br />
457 shares of Common Stock<br />
Name Principal Occupation Business address Share Ownership<br />
Willy R. Strothotte<br />
(Citizen of Germany)<br />
Ivan Glasenberg<br />
(Citizen of Australia)<br />
Chairman 23,547 shares of Common Stock<br />
(which includes 22,500 shares which<br />
are subject to options presently<br />
exercisable and 1,047 shares which<br />
are subject to vesting in one year or<br />
earlier termination of service as a<br />
Company director due to death or<br />
disability). (1)<br />
Chief Executive Officer<br />
Zbynek E. Zak Non−Executive Director;<br />
former CFO of Glencore<br />
International AG (retired)<br />
Peter A. Pestalozzi Attorney, Pestalozzi<br />
Lachenal Patry Zurich Ltd.<br />
Craig A. Davis<br />
(Citizen of the US)<br />
Non−Executive Director,<br />
former Chairman and CEO of<br />
Century Aluminum Company<br />
(retired)<br />
Buetzenweg 16<br />
CH−6300 Zug<br />
Switzerland<br />
Loewenstrasse 1<br />
CH−8001 Zurich,<br />
Switzerland<br />
457 shares of Common Stock<br />
(1) Represents shares underlying options and restricted stock that were issued to Mr. Willy R. Strothotte in connection with his service as a director of<br />
the Company. Mr. Strothotte holds such options and shares of restricted stock as nominee for the Reporting Persons and disclaims beneficial ownership<br />
thereof, except to the extent of his pecuniary interest therein.<br />
12
JOINT FILING AGREEMENT<br />
Each of the undersigned hereby agrees that this Amendment No. 5 to the statement on Schedule <strong>13D</strong> is being filed with the Securities and Exchange<br />
Commission on behalf of each of the undersigned pursuant to Rule 13d−1(k) under the Securities Exchange Act of 1934, as amended.<br />
Dated: January 28, 2009<br />
Glencore Investment Pty Ltd<br />
By: /s/ Valarie A. Hing<br />
Name: Valarie A. Hing<br />
Title: Attorney−in−Fact<br />
Glencore Investments AG<br />
By: /s/ Valarie A. Hing<br />
Name: Valarie A. Hing<br />
Title: Attorney−in−Fact<br />
Glencore International AG<br />
By: /s/ Valarie A. Hing<br />
Name: Valarie A. Hing<br />
Title: Attorney−in−Fact<br />
Glencore Holding AG<br />
By: /s/ Valarie A. Hing<br />
Name: Valarie A. Hing<br />
Title: Attorney−in−Fact<br />
EXHIBIT 1
AGREEMENT TO AMEND CERTAIN PROVISIONS OF<br />
STANDSTILL AND GOVERNANCE AGREEMENT<br />
EXHIBIT 2<br />
THIS AGREEMENT (this “Agreement”) is entered into as of January_27, 2009, by and between Century Aluminum Company, a corporation organized and<br />
existing under the laws of the State of Delaware (the “Company”) and Glencore AG, a company organized and existing under the laws of Switzerland<br />
(“Glencore”).<br />
WHEREAS, the Company proposes to offer newly−issued shares (the “Offered Shares”) of the Company’s common stock, par value $0.01 per share (the<br />
“Common Stock”), for sale to the public by means of a firm commitment underwritten public offering (including any sale of Common Stock pursuant to an<br />
underwriters’ over−allotment, the “Offering”);<br />
WHEREAS, it is anticipated that a portion of the Offered Shares will be purchased in the Offering by Glencore and/or one or more of its Affiliates (the<br />
“Glencore Shares”);<br />
WHEREAS, the Company and Glencore are parties to that certain Standstill and Governance Agreement dated as of July 7, 2008 (the “SAGA”) (all<br />
capitalized terms used and not defined herein shall have the meaning set forth in the SAGA);<br />
WHEREAS, the Company and Glencore have agreed to amend certain provisions of the SAGA so that Glencore may increase its current Ownership<br />
Percentage of approximately 30.16% by the purchase of the Glencore Shares, and that Glencore and its Affiliates may exercise voting rights with respect to<br />
a number of shares of Company Common Stock equivalent to the Glencore Shares; and<br />
WHEREAS, the Independent Directors of the Board of Directors of the Company and the Board of Directors of the Company have approved this<br />
Agreement;<br />
NOW, THEREFORE, in order to provide for Glencore’s and its Affiliates’ purchase of the Glencore Shares in the Offering, the Company and Glencore do<br />
hereby agree as follows:<br />
I. Notwithstanding the definition of Permitted Ownership Percentage in Section 1.1 of the SAGA, Glencore and its Affiliates shall be permitted to<br />
increase its current Ownership Percentage of approximately 30.16% by purchasing the Glencore Shares in the Offering;<br />
II. After the purchase of the Glencore Shares in the Offering, Glencore’s Permitted Ownership Percentage until April 7, 2009 shall be the greater of<br />
(x) 28.5% and (y) the quotient, expressed as a percentage, of: (a) the sum of (i) the number of shares of Common Stock that equals 28.5% of the Company’s<br />
outstanding Common Shares immediately prior to the Offering, and (ii) the number of Glencore Shares; divided by (b) the number of outstanding Company<br />
Common Shares immediately following the Offering;
III. Following April 7, 2009, Glencore’s Permitted Ownership Percentage shall be as currently set forth in the SAGA;<br />
IV. For the avoidance of doubt, it is acknowledged that Glencore and its Affiliates shall be entitled to exercise all voting rights with respect to a<br />
number of shares of Company Common Stock equivalent to the Glencore Shares and such Shares shall not be subject to Section 2.1(c) of the SAGA;<br />
provided that Section 2.1(c) shall continue to apply with respect to any increase in Glencore’s Ownership Percentage beyond the Permitted Ownership<br />
Percentage (as increased hereby) which is not otherwise permitted by the terms of the SAGA;<br />
V. Except for such terms of the SAGA as shall be modified hereby, the SAGA shall continue in full force and effect;<br />
VI. This Agreement shall be governed by the laws of the State of New York (without regard to its choice of law rules); and<br />
VII. Notwithstanding any other provision of this Agreement, the amendments to the SAGA provided for hereby shall become effective if and only if<br />
the Offering is consummated and Glencore and/or its Affiliates purchase any Glencore Shares therein.<br />
[Signature page follows]<br />
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.<br />
<strong>CENTURY</strong> <strong>ALUMINUM</strong> <strong>COMPANY</strong><br />
By: /s/ Michael A. Bless<br />
Name: Michael A. Bless<br />
Title: Executive Vice President<br />
and Chief Financial officer<br />
GLENCORE AG<br />
By: /s/ A. Hubmann<br />
Name: A. Hubmann<br />
Title: Director<br />
By: /s/ L. Grenacher Hagmann<br />
Name: L. Grenacher Hagmann<br />
Title: Officer
Credit Suisse Securities (USA) LLC<br />
Eleven Madison Avenue<br />
New York, New York 10010<br />
Morgan Stanley & Co. Incorporated<br />
1585 Broadway<br />
New York, New York 10036<br />
As representatives of the several Underwriters referred to below<br />
Dear Sirs and Mesdames:<br />
LOCK−UP AGREEMENT<br />
LOCK−UP LETTER<br />
EXHIBIT 3<br />
January [__], 2009<br />
The undersigned understands that Credit Suisse Securities (USA) LLC (“Credit Suisse”) and Morgan Stanley & Co. Incorporated (“Morgan<br />
Stanley”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Century Aluminum Company, a Delaware corporation<br />
(the “Company”), providing for the public offering (the “Public Offering”) by the several underwriters, including Credit Suisse and Morgan Stanley and the<br />
other underwriters for which they act as representatives (the “Underwriters”), of shares (the “Shares”) of the Common Stock, $.01 par value of the Company<br />
(the “Common Stock”).<br />
To induce the Underwriters that may participate in the Public Offering to continue their efforts in connection with the Public Offering, the<br />
undersigned hereby agrees that, without the prior written consent of Credit Suisse and Morgan Stanley on behalf of the Underwriters, it will not, during the<br />
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,<br />
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,<br />
lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or<br />
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<br />
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<br />
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<br />
Underwriting Agreement, (b) transactions relating to shares of Common Stock or other securities acquired in open market transactions after the completion<br />
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<br />
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<br />
(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<br />
Stock to the Company to discharge tax withholding obligations resulting from the vesting of performance shares during the term of the Lock−Up<br />
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<br />
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<br />
as part of the acquisition of the Company by a third party by way of merger, consolidation, stock exchange or tender offer (which may include acquisition of<br />
less than 100% of the voting stock of the Company), (f) transfers among any of the undersigned and/or its Majority Holders and/or its or their direct and/or<br />
indirect Subsidiaries; (g) transfers of shares of Common Stock as bona fide gifts, and (h) transfers of shares of Common Stock to a trust where the<br />
beneficiaries of the trust are drawn solely from a group consisting of the undersigned and immediate family members of the undersigned; provided that in<br />
the case of any transfer pursuant to clause (f), (g) or (h), (A) each transferee or trustee agrees to enter into a lock−up letter substantially in the form of this<br />
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<br />
Exchange Act of 1934 reporting a reduction in beneficial ownership of shares of Common Stock during the restricted period referred to in the foregoing<br />
sentence. “Immediate family member” of a person means the spouse, lineal descendants, father, mother, brother, sister, father−in−law, mother−in−law,<br />
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 Morgan<br />
Stanley 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,<br />
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<br />
exchangeable for Common Stock. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and<br />
registrar against the transfer of the undersigned’s shares of Common Stock except in compliance with the foregoing restrictions. As used in this letter,<br />
“Majority Holder” and “Subsidiary” are used as defined in the Certificate of Designation, Preferences and Rights Of Series A Convertible Preferred Stock<br />
of Century Aluminum Company filed with the Secretary of State of the State of Delaware on July 7, 2008.
Notwithstanding any provisions set forth in this Lock−Up Agreement to the contrary, this Lock−Up Agreement shall terminate on February 10,<br />
2009 if the Company and the Underwriters shall not have executed the Underwriting Agreement by such date.<br />
The undersigned understands that the Company and the Underwriters are relying upon this Lock−Up Agreement in proceeding toward<br />
consummation of the Public Offering. The undersigned further understands that this Lock−Up Agreement is irrevocable and shall be binding upon the<br />
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<br />
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<br />
reason the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement), the agreement set forth above<br />
shall likewise be terminated.<br />
Logan W. Kruger<br />
Michael A. Bless<br />
Wayne R. Hale<br />
Robert R. Nielsen<br />
Steve Schneider<br />
Giulio Casello<br />
Michelle M. Lair<br />
William J. Leatherberry<br />
Jerry E. Reed<br />
Jarl Berntzen<br />
Robert E. Fishman<br />
John C. Fontaine<br />
Peter C. Jones<br />
Catherine Z. Manning<br />
John P. O’Brien<br />
Willy R. Strothotte<br />
Jack E. Thompson<br />
Schedule I<br />
Glencore Investment Pty Ltd<br />
(Name):<br />
c/o Glencore AG<br />
Baarermattstrasse 3<br />
CH−6341 Baar, Switzerland<br />
(Address)