-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MJ+nhvCmrSMwrQlt8l/jFYDukY0K1OYXeQxK2Ok7HadX3ux/k427NU+t2xCbPXne XE90tDFrw0PY5toTTvNpkQ== 0000891554-01-502049.txt : 20010416 0000891554-01-502049.hdr.sgml : 20010416 ACCESSION NUMBER: 0000891554-01-502049 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20010412 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CENTURY ALUMINUM CO CENTRAL INDEX KEY: 0000949157 STANDARD INDUSTRIAL CLASSIFICATION: ROLLING DRAWING & EXTRUDING OF NONFERROUS METALS [3350] IRS NUMBER: 133070826 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-47307 FILM NUMBER: 1601496 BUSINESS ADDRESS: STREET 1: 2511 GARDEN ROAD STREET 2: BUILDING A SUITE 200 CITY: MONTEREY STATE: CA ZIP: 93940 BUSINESS PHONE: 3042736000 MAIL ADDRESS: STREET 1: 2511 GARDEN ROAD STREET 2: BUILDING A SUITE 200 CITY: MONTEREY STATE: CA ZIP: 93940 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GLENCORE INTERNATIONAL AG CENTRAL INDEX KEY: 0001032383 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: BAARERMATTSTRASSE 3 STREET 2: P O BOX 555 CH 6341 BAAR CITY: SWITZERLAND BUSINESS PHONE: 4142227722 MAIL ADDRESS: STREET 1: BAARERMATTSTRASSE 3 STREET 2: P O BOX 555 CH 6341 BAAR CITY: SWITZERLAND SC 13D 1 d25383_sch13d.txt SCHEDULE 13D ================================================================================ SEC 1746 Potential persons who are to respond to the collection of (2-98) information contained in this form are not required to respond unless the form displays a currently valid OMB control number. ================================================================================ ================================ OMB APPROVAL ================================ OMB Number: 3235-0145 ================================ Expires: October 31, 2002 ================================ Estimated average burden hours per response. . . 14.9 ================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. ________)* CENTURY ALUMINUM COMPANY (Name of Issuer) ================================================================================ COMMON STOCK, $.01 Par Value (Title of Class of Securities) ================================================================================ 156531 10 8 (CUSIP Number) ================================================================================ Company Secretary Glencore AG Baarermattstrasse 3, P.O. Box 666 CH-6341 Baar, Switzerland Phone: 41-41-709-2563 ================================================================================ (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) APRIL 2, 2001 (Date of Event which Requires Filing of this Statement) ================================================================================ If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of ss.ss.240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. [ ] Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See ss.240.13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. 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 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 (however, see the Notes). CUSIP No. 156531 10 8 ================================================================================ 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). Glencore AG ================================================================================ 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) ..................................................................... (b) ..................................................................... ================================================================================ 3. SEC Use Only ........................................................................... ================================================================================ 4. Source of Funds (See Instructions) WC ================================================================================ 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ................................................................... ================================================================================ 6. Citizenship or Place of Organization Switzerland ================================================================================ Number of Shares 7. Sole Voting Power Beneficially Owned ...................................................... by Each Reporting =========================================================== Person With 8. Shared Voting Power 9,320,089 shares =========================================================== 9. Sole Dispositive Power ...................................................... =========================================================== 10. Shared Dispositive Power 9,320,089 shares ================================================================================ 11. Aggregate Amount Beneficially Owned by Each Reporting Person 9,320,089 shares ================================================================================ 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ............................................................. ================================================================================ 13. Percent of Class Represented by Amount in Row (11) 42.8% ================================================================================ 14. Type of Reporting Person (See Instructions) CO ================================================================================ 2 CUSIP No. 156531 10 8 ================================================================================ 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). Glencore International AG ================================================================================ 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) ..................................................................... (b) ..................................................................... ================================================================================ 3. SEC Use Only ........................................................................... ================================================================================ 4. Source of Funds (See Instructions) AF ================================================================================ 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ................................................................... ================================================================================ 6. Citizenship or Place of Organization Switzerland ================================================================================ Number of Shares 7. Sole Voting Power Beneficially Owned ...................................................... by Each Reporting =========================================================== Person With 8. Shared Voting Power 9,320,089 shares =========================================================== 9. Sole Dispositive Power ...................................................... =========================================================== 10. Shared Dispositive Power 9,320,089 shares ================================================================================ 11. Aggregate Amount Beneficially Owned by Each Reporting Person 9,320,089 shares ================================================================================ 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ............................................................. ================================================================================ 13. Percent of Class Represented by Amount in Row (11) 42.8% ================================================================================ 14. Type of Reporting Person (See Instructions) CO, HC ================================================================================ 3 CUSIP No. 156531 10 8 ================================================================================ 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). Glencore Holding AG ================================================================================ 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) ..................................................................... (b) ..................................................................... ================================================================================ 3. SEC Use Only ........................................................................... ================================================================================ 4. Source of Funds (See Instructions) AF ================================================================================ 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ................................................................... ================================================================================ 6. Citizenship or Place of Organization Switzerland ================================================================================ Number of Shares 7. Sole Voting Power Beneficially Owned ...................................................... by Each Reporting =========================================================== Person With 8. Shared Voting Power 9,320,089 shares =========================================================== 9. Sole Dispositive Power ...................................................... =========================================================== 10. Shared Dispositive Power 9,320,089 shares ================================================================================ 11. Aggregate Amount Beneficially Owned by Each Reporting Person 9,320,089 shares ================================================================================ 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ............................................................. ================================================================================ 13. Percent of Class Represented by Amount in Row (11) 42.8% ================================================================================ 14. Type of Reporting Person (See Instructions) CO, HC ================================================================================ 4 Item 1. Security and Issuer This statement on Schedule 13D relates to the Common Stock, $0.01 par value per share (the "Common Stock"), of Century Aluminum Company, a Delaware corporation (the "Company"), beneficially owned by the Reporting Persons (as defined below), through their holdings of Common Stock and 8% Cumulative Convertible Preferred Stock, par value $0.01 per share (the "Preferred Stock") of the Company, which is convertible into Common Stock of the Company at the option of the holder. The Company's principal executive office is located at : 2511 Garden Road, Building A, Suite 200, Monterey, California 93940. Item 2. Identity and Background (a)-(c) and (f) This statement on Schedule 13D is being filed by Glencore AG, Glencore International AG ("Glencore International") and Glencore Holding AG ("Glencore Holding" and collectively with Glencore International and Glencore AG, the "Reporting Persons"). Each of the Reporting Persons is a company organized under the laws of Switzerland. The business address of each of the Reporting Persons is Baarermattstrasse 3, CH-6341 Baar, Switzerland. Glencore Holding is the parent company of Glencore International which, together with its subsidiaries, including Glencore AG, is a leading privately held, diversified natural resources group with world-wide interests in mining, smelting, refining, processing and trading of metals and minerals, energy products and agricultural products. The names, addresses, citizenship and present principal occupation or employment of each of the directors and executive officers of the Reporting Persons, as well as the names, principal businesses and addresses of any corporations and other organizations in which such employment is conducted, are set forth on Schedule I hereto, which Schedule is incorporated herein by reference. (d)-(e) None of the Reporting Persons, nor to the best of their knowledge, any of the persons listed on Schedule I hereto has during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). None of the Reporting Persons, nor to the best of their knowledge, any of the persons listed on Schedule I hereto has during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration Pursuant to a Stock Purchase Agreement, dated as of March 30, 2001 (the "Stock Purchase Agreement"), by and between the Company and Glencore AG, the Company issued and Glencore AG purchased, on April 2, 2001, 500,000 shares of the Company's Preferred Stock, which are convertible into Common Stock, at the option of the holder. Copies of the Stock Purchase Agreement and the Certificate of Designation are attached hereto as Exhibits 2 and 3, respectively, and are hereby incorporated by reference. The consideration paid by Glencore AG for the shares of Preferred Stock was $25,000,000 in cash which was obtained from its internal working capital. 5 Item 4. Purpose of Transaction Glencore AG intends to hold the shares of the Company's Common Stock for investment purposes. The Reporting Persons may acquire additional shares of the Company's Common Stock from time to time in open market or in privately negotiated transactions, provided such acquisition is on terms deemed favorable by the Reporting Persons. Alternatively, the Reporting Persons may, from time to time, sell all or a portion of the shares of Common Stock or the Preferred Stock in open market or in privately negotiated transactions, provided such sales are on terms deemed favorable to the Reporting Persons. The Reporting Persons have no plans or proposals which relate to or would result in: (a) the acquisition by any person of additional securities of the issuer, or the disposition of securities of the issuer; (b) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Company or any of its subsidiaries; (c) a sale or transfer of a material amount of assets of the Company or of any of its subsidiaries; (d) any change in the present board of directors or management of the Company, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board; (e) any material change in the present capitalization or dividend policy of the Company; (f) any other material change in the Company's business or corporate structure; (g) changes in the Company's charter, bylaws or instruments corresponding thereto or other actions which may impede the acquisition of control of the Company by any person; (h) causing a class of securities of the Company to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i) a class of equity securities of the Company becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Act; or (j) any action similar to any of those enumerated in (a) through (i) above. Item 5. Interest in Securities of the Issuer (The number of issued and outstanding shares of the Company's Common Stock upon which the various percentages set forth in this statement on Schedule 13D are based is the number of shares outstanding as set forth in the Company's most recent annual report filed on Form 10-K with the SEC on March 9, 2001 and are calculated in accordance with Rule 13(d)-3(d)(1) of the Act). The Reporting Persons are the beneficial owners of 9,320,089 shares of the Company's Common Stock, or 42.8% of the Company's Common Stock issued and outstanding as of February 14, 2001 and calculated in accordance with Rule 13(d)-3(d)(1) of the Act. The Reporting Persons have shared power to vote or to direct the voting of all of the shares of Common Stock reported as beneficially owned by them. The Reporting Persons have shared power to dispose of, or to direct the disposition of, all of the shares of Common Stock reported as beneficially owned by them. On March 28, 1996, the Company's Registration Statement on Form S-1 was declared effective. Accordingly, the Reporting Persons became the beneficial owners of 7,925,000 shares of the Company's outstanding Common Stock, representing more than 5% of a class of security 6 registered pursuant to Section 12 of the Act. A Schedule 13G was filed on February 10, 1997 to report this beneficial ownership. As set forth above, on April 2, 2001, the Company issued 500,000 shares of its Preferred Stock. Accordingly, assuming the conversion of the shares of Preferred Stock held by the Reporting Persons as of such date, the Reporting Persons may be deemed to own an additional 1,395,089 shares of the Company's Common Stock. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer The Company and Glencore AG are parties to the Stock Purchase Agreement, pursuant to which Glencore AG purchased 500,000 shares of the Company's Preferred Stock. Except as set forth in the Stock Purchase Agreement, a copy of which is attached hereto as Exhibit 2, and incorporated herein by reference, to the best knowledge of the Reporting Persons, there exist no contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 and between such persons and any person with respect to any securities of the Company, including but not limited to transfer or voting of any securities of the Company, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies. Item 7. Material to Be Filed as Exhibits 1. Joint Filing Agreement. 2. Stock Purchase Agreement, dated as of March 30, 2001, by and between the Company and Glencore AG. 3. Certificate of Designation of the Preferred Stock. Signature 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. Date April 12, 2001 Glencore AG By: /s/ Zbynek E. Zak Eberhard Knoechel --------------------------- --------------------------- Director Director Glencore International AG By: /s/ Zbynek E. Zak Peter A. Pestalozzi --------------------------- --------------------------- Director Director 7 Glencore Holding AG By: /s/ Zbynek E. Zak Eberhard Knoechel --------------------------- --------------------------- Director Director EX-1 2 d25383_ex1.txt JOINT FILING AGREEMENT Exhibit 1 JOINT FILING AGREEMENT Each of the undersigned hereby agrees to the joint filing on behalf of each of them of a statement on Schedule 13D (including amendments thereto) with respect to the common stock, par value $0.01 per share, of Century Aluminum Company. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. IN WITNESS WHEREOF, the undersigned hereby execute this Agreement, this 10th day of April, 2001. Glencore AG By: /s/ Zbynek E. Zak Eberhard Knoechel --------------------------- --------------------------- Director Director Glencore International AG By: /s/ Zbynek E. Zak Peter A. Pestalozzi --------------------------- --------------------------- Director Director Glencore Holding AG By: /s/ Zbynek E. Zak Eberhard Knoechel --------------------------- --------------------------- Director Director 8 SCHEDULE I Set forth below are the names, business addresses and present principal occupations of the directors of each of the Reporting Persons. The executive officers of each of Glencore AG and Glencore Holding AG are the directors of each of such companies. The executive officers of Glencore International AG are the persons listed as directors of each of the Reporting Persons whose principal occupation is with Glencore International AG. Unless otherwise indicated, the present principal occupation of each person is with Glencore International. If no business address is given, the director's or officer's address is Baarermattstrasse 3, CH-6341, Baar, Switzerland. Unless otherwise indicated, all of the persons listed below are citizens of Switzerland. To the best 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 Company. Directors of Glencore AG:
Name Principal Occupation Business Address Share Ownership - ---- -------------------- ---------------- --------------- Ian F. Perkins Director - Alumina (Citizen of the UK) Josef Bermann Director - Aluminum Eberhard Knoechel Director - Accounting Zbynek E. Zak Chief Financial Officer
Directors of Glencore International AG:
Name Principal Occupation Business Address Share Ownership - ---- -------------------- ---------------- --------------- Willy R. Strothotte Chairman and 16,500 shares of Common Stock, (Citizen of Germany) Chief Executive Officer which includes 16,500 shares which are subject to options presently exercisable, representing .08% of the Company's issued and outstanding Common Stock. Peter A. Pestalozzi Attorney, Pestalozzi Loewenstrasse 1 Gmuer & Patry CH-8001 Zuerich
9
Name Principal Occupation Business Address Share Ownership - ---- -------------------- ---------------- --------------- Craig A. Davis Chairman & Chief 2511 Garden Road, Bldg. A 271,903 shares of Common Stock, (Citizen of the US) Executive Officer of Suite 200, Monterey which includes 150,000 shares Century Aluminum Company California 93940 which are subject to options presently exercisable, representing 1.3% of the Company's issued and outstanding Common Stock. Paul Wyler Director - Copper / Nickel Zbynek E. Zak Chief Financial Officer
Directors of Glencore Holding AG:
Name Principal Occupation Business Address Share Ownership - ---- -------------------- ---------------- --------------- Willy R. Strothotte Chairman and Chief 16,500 shares of Common Stock, (Citizen of Germany) Executive Officer which includes 16,500 shares which are subject to options presently exercisable, representing .08% of the Company's issued and outstanding Common Stock.
10
Name Principal Occupation Business Address Share Ownership - ---- -------------------- ---------------- --------------- Peter A. Pestalozzi Attorney, Pestalozzi Loewenstrasse 1 Gmuer & Patry CH-8001 Zuerich Craig A. Davis Chairman & Chief 2511 Garden Road, Bldg.A 271,903 shares of Common Stock, (Citizen of the US) Executive Officer of Suite 200, Monterey which includes 150,000 shares Century Aluminum Company California 93940 which are subject to options presently exercisable, representing 1.3% of the Company's issued and outstanding Common Stock. Paul Wyler Director - Copper / Nickel Zbynek E. Zak Chief Financial Officer Eberhard Knoechel Director - Accounting Daniel Dreyfuss Managing Director - 49 Wigmore Street London Office GB-London
11 EX-2 3 d25383_ex2.txt CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT Exhibit 2 CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT By and Between CENTURY ALUMINUM COMPANY and GLENCORE AG Dated as of March 30, 2001 TABLE OF CONTENTS page Article I CERTAIN DEFINITIONS............................................1 Section 1.1 Certain Definitions.......................................1 Article II PURCHASE OF SHARES............................................2 Section 2.1 Purchase of Shares; Closing...............................2 Article III REPRESENTATIONS AND WARRANTIES...............................3 Section 3.1 Representations and Warranties of the Company.............3 Section 3.2 Representations and Warranties of the Purchaser...........6 Article IV OTHER AGREEMENTS OF THE PARTIES...............................8 Section 4.1 Transfer Restrictions.....................................8 Section 4.2 Furnishing of Information.................................9 Section 4.3 Notice of Certain Events..................................9 Section 4.4 Blue Sky Laws.............................................9 Section 4.5 Integration...............................................9 Section 4.6 Filing of Reports.........................................9 Section 4.7 Furnishing of Rule 144A Materials.........................9 Section 4.8 Solicitation Materials...................................10 Section 4.9 Matters Affecting Purchaser's Rights.....................10 Section 4.10 HSR Act Filings.........................................10 Article V CONDITIONS PRECEDENT TO CLOSING...............................10 Section 5.1 Conditions Precedent to Obligations of the Purchaser.....10 Section 5.2 Conditions Precedent to Obligations of the Company.......11 Article VI TERMINATION..................................................12 Section 6.1 Termination by Mutual Consent............................12 Section 6.2 Termination by the Company or the Purchaser..............12 Article VII MISCELLANEOUS...............................................12 Section 7.1 Fees and Expenses........................................12 Section 7.2 Entire Agreement.........................................13 Section 7.3 Notices..................................................13 Section 7.4 Indemnification..........................................14 Section 7.5 Arbitration..............................................14 Section 7.6 Amendments; Waivers......................................14 Section 7.7 Headings.................................................14 Section 7.8 Successors and Assigns...................................14 Section 7.9 No Third Party Beneficiaries.............................14 Section 7.10 Governing Law...........................................14 Section 7.11 Survival................................................15 Section 7.12 Counterpart Signatures..................................15 i Section 7.13 Publicity...............................................15 Section 7.14 Severability............................................15 Section 7.15 Remedies................................................15 Exhibit A........Certificate of Designation Exhibit B........Form of Opinion of internal counsel to Century Aluminum Company Exhibit C........Certificate of Officers of Century Aluminum Company ii CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT, dated as of March 30, 2001 (this "Agreement"), by and between Century Aluminum Company, a Delaware corporation (the "Company"), and Glencore AG, a Swiss company (the "Purchaser"). WHEREAS, the Company desires to issue and sell to the Purchaser and the Purchaser desires to acquire shares of the Company's 8% Cumulative Convertible Preferred Stock, $0.01 par value per share (the "Preferred Stock"). NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: ARTICLE I CERTAIN DEFINITIONS Section 1.1 Certain Definitions. As used in this Agreement, and unless the context requires a different meaning, the following terms have the meanings indicated: "Affiliate" means, with respect to any Person, any Person that, directly or indirectly, controls, is controlled by or is under common control with such Person. For the purposes of this definition, "control" (including, with correlative meanings, the terms "controlled by" and "under common control with") shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise. "Business Day" shall mean a day (other than a Saturday or Sunday) on which commercial banks are open for business in London, Switzerland and New York. "Certificate of Designation" shall have the meaning set forth in Section 2.1(a). "Closing" shall have the meaning set forth in Section 2.1(b). "Closing Date" shall have the meaning set forth in Section 2.1(b). "Common Stock" shall mean the Company's common stock, par value $0.01 per share. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. "Financial Statements" shall have the meaning set forth in Section 3.1(j). "HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. "Lien" shall mean, with respect to any asset, any mortgage, lien, pledge, encumbrance, charge or security interest of any kind in or on such asset or the revenues or income thereon or therefrom. -1- "Material Adverse Effect" shall have the meaning set forth in Section 3.1(a). "NASD" shall mean the National Association of Securities Dealers, Inc. "Offering Circular" shall mean the Preliminary Offering Circular dated March 9, 2001 relating to the Senior Secured Mortgage Notes of the Company due 2008. "Per Share Consideration" shall have the meaning set forth in Section 2.1(a). "Person" shall mean an individual or a corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or political subdivision thereof) or other entity of any kind. "Preferred Stock" shall have the meaning set forth in the recitals hereto. "Purchase Price" shall have the meaning set forth in Section 2.1(a). "SEC" shall mean the U.S. Securities and Exchange Commission. "SEC Documents" shall have the meaning set forth in Section 3.1(j). "Securities Act" shall mean the Securities Act of 1933, as amended. "Shares" shall have the meaning set forth in Section 2.1(a). "Subsidiaries" shall have the meaning set forth in Section 3.1(a). "Underlying Shares" shall mean the shares of Common Stock into which the Shares are convertible in accordance with the terms hereof and the Certificate of Designation. ARTICLE II PURCHASE OF SHARES Section 2.1 Purchase of Shares; Closing. (a) Subject to the terms and conditions herein set forth, the Company shall issue and sell to the Purchaser, and the Purchaser shall purchase from the Company on the Closing Date 500,000 shares of the Preferred Stock (the "Shares"), which shall have the respective rights, preferences and privileges set forth in Exhibit A hereto (the "Certificate of Designation") for an aggregate purchase price of US$25,000,000 (the "Purchase Price"); and a per share price of US$50 (the "Per Share Consideration"). (b) The closing of the purchase and sale of the Shares (the "Closing") shall take place at the offices of Curtis, Mallet-Prevost, Colt & Mosle LLP immediately following the execution hereof, or at such other time and/or place as the Purchaser and the Company may agree, provided, however, in no case shall the Closing take place later than April 30, 2001. The date of the Closing is hereinafter referred to as the "Closing Date". (c) At the Closing, (i) the Company shall deliver to the Purchaser (A) one or more stock certificates representing the Shares purchased hereunder, registered in the name of -2- the Purchaser and (B) all other documents, instruments and writings required to have been delivered at or prior to Closing by the Company pursuant to this Agreement and (ii) the Purchaser shall deliver to the Company (A) the Purchase Price in United States dollars in immediately available funds by wire transfer to an account designated in writing by the Company at least two Business Days prior to the Closing and (B) all other documents, instruments and writings required to have been delivered at or prior to Closing by the Purchaser pursuant to this Agreement. ARTICLE III REPRESENTATIONS AND WARRANTIES Section 3.1 Representations and Warranties of the Company. The Company hereby represents and warrants to the Purchaser as follows: (a) Organization and Qualification. The Company and each of its subsidiaries on the date hereof (the "Subsidiaries") is a corporation, duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its incorporation, with the requisite corporate power and authority to own and use its properties and assets and to carry on its business as currently conducted. Each of the Company and the Subsidiaries is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, has not had and could not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the condition (financial or otherwise), business, operations, assets or prospects of the Company and the Subsidiaries, taken as a whole, or on the ability of the Company to consummate the transactions contemplated hereby (a "Material Adverse Effect"). (b) Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated hereby and otherwise to carry out its obligations hereunder. The execution and delivery of this Agreement by the Company and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Company. This Agreement has been duly executed and delivered by the Company and constitutes the legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally the enforcement of, creditors' rights and remedies or by other equitable principles of general application. (c) Capitalization. Subject to the vesting of additional performance share units, the authorized, issued and outstanding capital stock of the Company is as set forth in the SEC Documents. All outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and non-assessable. No shares of capital stock of the Company are entitled to preemptive or similar rights. Other than additional option grants in an aggregate of not more than 25,000 options and except as disclosed in the SEC Documents, other than the Shares, there are no outstanding options, warrants, script rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or -3- exchangeable for, or giving any Person any right to subscribe for or acquire any shares of capital stock, or contracts, commitments, understandings, or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of capital stock, or securities or rights convertible or exchangeable into shares of capital stock of the Company. Neither the Company nor any Subsidiary is in violation of any of the provisions of its respective certificate of incorporation, bylaws or other constituent documents. Other than as set forth in the SEC Documents or the Offering Circular, there are no outstanding rights (other than those of which have been satisfied) which permit the holder thereof to cause the Company to file a registration statement under the Securities Act or which permit the holder thereof to include securities of the Company in a registration statement filed by the Company under the Securities Act, and there are no outstanding agreements or other commitments which otherwise relate to the registration of any securities of the Company under the Securities Act. All securities of the Company heretofore issued and sold by the Company were issued and sold in compliance with all applicable Federal and state securities laws. Assuming that the representations and warranties of the Purchaser set forth in Section 3.2 are true and correct, the offering, issuance and sale of the Shares and the Underlying Shares will be exempt from the registration requirements of the Securities Act and applicable state securities laws. (d) Issuance of Shares. The Shares are duly authorized and, when issued and paid for in accordance with the terms hereof, shall be validly issued, fully paid and nonassessable. The Company has and at all times while the Shares are outstanding will maintain an adequate reserve of shares of Common Stock to enable it to perform its obligations under this Agreement and the Certificate of Designation. When issued in accordance with the terms hereof and the Certificate of Designation, the Underlying Shares will be duly authorized, validly issued, fully paid and nonassessable. The issuance of the Shares and the Underlying Shares will not be subject to any pre-emptive rights or similar rights with respect to such Shares or such Underlying Shares. (e) No Conflicts. The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby do not and will not (i) conflict with or violate any provision of its certificate of incorporation or bylaws, or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any Subsidiary is a party), or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or its Subsidiaries is subject (including Federal and state securities laws and regulations), or by which any property or asset of the Company or any Subsidiary is bound or affected. (f) Consents and Approvals. Except for the filing of the Certificate of Designation and any required approvals under the HSR Act, neither the Company nor any Subsidiary is required to obtain any consent, waiver, authorization or order of, or make any filing or registration with, any court or other federal, state, local or other governmental authority having jurisdiction over the Company or other Person in connection with (i) the execution, delivery and performance by the Company of this Agreement, (ii) the valid and lawful -4- authorization, issuance, sale and delivery of the Shares or (iii) the valid and lawful authorization, reservation, issuance, sale and delivery of the Underlying Shares. (g) Litigation; Proceedings. Except as disclosed in the SEC Documents, there is no action, suit, notice of violation, proceeding or investigation pending or, to the best knowledge of the Company, threatened against the Company or any of its Subsidiaries or any of their respective properties before or by any court, arbitral tribunal or panel, or governmental or administrative agency or regulatory authority (Federal, State, county, local or foreign) which (i) relates to or challenges the legality, validity or enforceability of this Agreement, the Shares or the Underlying Shares, (ii) could reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect or (iii) could reasonably be expected to, individually or in the aggregate, materially impair the ability of the Company to perform fully and on a timely basis its obligations under this Agreement. (h) No Default or Violation. Neither the Company nor any Subsidiary (i) is in default under or in violation of any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound, except such conflicts or defaults as could not reasonably be expected to have a Material Adverse Effect, (ii) is in violation of any order of any court, arbitral tribunal, panel or governmental body, except for such violations as could not reasonably be expected to have a Material Adverse Effect, or (iii) is in violation of any statute, rule or regulation of any governmental authority which could (individually or in the aggregate) (x) adversely affect the legality, validity or enforceability of this Agreement, (y) reasonably be expected to have a Material Adverse Effect or (z) adversely impair the Company's ability or obligation to perform fully on a timely basis its obligations under this Agreement. (i) Private Offering. Neither the Company nor any Person acting on its behalf has taken or will take any action (including, without limitation, any offering of any securities of the Company under circumstances which would require the integration of such offering with the offering of the Shares under the Securities Act) which might subject the offering, issuance or sale of the Shares to the registration requirements of Section 5 of the Securities Act. (j) SEC Documents. The Company has filed with the SEC all reports and registration statements and other filings required to be filed by it under the rules and regulations of the SEC, for the two years preceding the date hereof (the foregoing materials being collectively referred to herein as the "SEC Documents") on a timely basis. As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder, and none of the SEC Documents, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company, including the notes thereto, included in the SEC Documents (the "Financial Statements") were complete and correct in all material respects as of their respective dates, complied as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto as of their respective dates, and were prepared in accordance with generally accepted -5- accounting principles applied on a basis consistent throughout the periods indicated (except as may be indicated in the notes thereto or, in the case of unaudited statements included in Quarterly Reports on Form 10-Q, as permitted by Form 10-Q of the SEC). The Financial Statements fairly present the financial condition and operating results of the Company and its Subsidiaries at the dates and for the periods indicated therein (subject, in the case of unaudited statements, to normal year-end adjustments). There has been no change in the Company's accounting policies except as described in the notes to the Financial Statements. (k) Absence of Certain Charges. Except as otherwise disclosed in the SEC Documents or the Offering Circular, since December 31, 2000, there has not been: (i) Any material change in the assets, liabilities, financial condition, business or results of operations of the Company and its Subsidiaries from that reflected in the Financial Statements, except changes in the ordinary course of business which could not reasonably be expected to, either individually or in the aggregate, constitute a Material Adverse Effect; (ii) Any change in the contingent obligations of the Company or its Subsidiaries, whether by way of guaranty, endorsement, indemnity, warranty or otherwise, except such changes as could not reasonably be expected to, either individually or in the aggregate, constitute a Material Adverse Effect; (iii) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect; (iv) With the exception of payments of cash dividends, any declaration, setting aside or payment of any dividend or other distribution of the assets or securities of the Company in respect of outstanding capital stock of the Company; (v) Any material contract entered into by the Company or any of its Subsidiaries, other than in the ordinary course of business and as provided to the Purchaser, or any material amendment or termination of, or default under, any material contract to which the Company or any of its Subsidiaries is a party or by which any of them are bound; (vi) Any commitment or agreement by the Company or any of its Subsidiaries to do any of the things described in the preceding clauses (i) through (v); or (vii) Any other event or condition of any character that has had or that could reasonably be expected to have a Material Adverse Effect. Section 3.2 Representations and Warranties of the Purchaser. The Purchaser hereby represents and warrants to the Company as follows: (a) Organization; Authority. The Purchaser is a corporation duly and validly existing and in good standing under the laws of Switzerland. The Purchaser has the requisite power and authority to enter into and to consummate the transactions contemplated hereby and -6- otherwise to carry out its obligations hereunder. The purchase of the Shares by the Purchaser hereunder has been duly authorized by all necessary action on the part of the Purchaser. This Agreement has been duly executed and delivered by the Purchaser and constitutes the valid and legally binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights generally and to general principles of equity. (b) Consents and Approvals. The Purchaser is not required to obtain any consent, waiver, authorization or order of, or make any filing or registration with, any court or other federal, state, local or other governmental authority having jurisdiction over the Purchaser or other Person in connection with the execution, delivery and performance by the Purchaser of this Agreement. (c) Litigation; Proceedings. There is no action, suit, notice of violation, proceeding or investigation pending or, to the best knowledge of the Purchaser, threatened against the Purchaser before or by any court, arbitral tribunal or panel, or governmental or administrative agency or regulatory authority (Federal, State, county, local or foreign) which (i) relates to or challenges the legality, validity or enforceability of this Agreement or (ii) could reasonably be expected to, individually or in the aggregate, materially impair the ability of the Purchaser to perform fully and on a timely basis its obligations under this Agreement. (d) Investment Intent. The Purchaser is acquiring the Shares and the Underlying Shares for its own account for investment purposes only and not with a view to or for distributing or reselling such Shares or Underlying Shares or any part thereof or interest therein in violation of the Securities Act, without prejudice, however, to the Purchaser's right, subject to the provisions of this Agreement, at all times to sell or otherwise dispose of all or any part of such Shares or Underlying Shares under an effective registration statement under the Securities Act and in compliance with applicable State securities laws or in a transaction exempt from, or outside the scope of such registration requirements. (e) Purchaser Status. At the time the Purchaser was offered the Shares, it was, and at the date hereof, it is, and at the Closing Date, it will be, an "accredited investor" as defined in Rule 501(a) under the Securities Act. (f) Experience of Purchaser. The Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Shares, and has so evaluated the merits and risks of such investment. (g) Ability of Purchaser to Bear Risk of Investment. The Purchaser is able to bear the economic risk of an investment in the Shares and, at the present time, is, and at the Closing Date it will be, able to afford a complete loss of such investment. (h) Access to Information. The Purchaser acknowledges that it has been afforded (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the -7- offering of the Shares and the merits and risks of investing in the Shares, (ii) access to information about the Company and the Company's financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment in the Common Stock, and (iii) the opportunity to obtain such additional information which the Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the Shares. ARTICLE IV OTHER AGREEMENTS OF THE PARTIES Section 4.1 Transfer Restrictions. If the Purchaser should decide to dispose of any of the Shares to be purchased by it hereunder (and upon conversion thereof, any Underlying Shares), the Purchaser understands and agrees that it may do so only (i) pursuant to an effective registration statement under the Securities Act, (ii) to the Company or (iii) pursuant to an available exemption from or in a transaction not subject to registration under the Securities Act. In connection with any transfer of any Shares other than pursuant to an effective registration statement or to the Company, the Company may require that the transferor of such Shares provide to the Company, at the transferor's expense, an opinion of counsel experienced in the area of United States securities laws selected by the transferor and reasonably acceptable to the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such Shares under the Securities Act or any State securities laws. The Purchaser agrees to the imprinting of the following legend on certificates representing the Shares: NEITHER THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, THEY MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, OR (B) PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT. The legend set forth above may be removed if and when the Shares represented by such certificate or the Underlying Shares, as the case may be, are disposed of pursuant to an effective registration statement under the Securities Act or in the opinion of counsel to the Company experienced in the area of United States securities laws such legend is no longer required under applicable requirements of the Securities Act or any state securities laws. The stock certificates representing the Shares and the Underlying Shares shall also bear any other legends required by applicable Federal or state securities laws, which legends may be removed when, in the opinion of counsel to the Company experienced in the area of the applicable securities laws, such legends are no longer required under the applicable requirements of such securities laws. The Company -8- agrees that it will provide the Purchaser, upon request, with a substitute stock certificate or certificates, free from such legend at such time as such legend is determined to be no longer applicable. The Company makes no representation, warranty or agreement as to the availability, now or hereafter, of any exemption from registration under the Securities Act with respect to any resale of Shares or Underlying Shares. Section 4.2 Furnishing of Information. As long as the Purchaser owns any Shares, if requested, the Company will promptly furnish to it all reports filed by the Company pursuant to Section 13(a) or 15(d) of the Exchange Act (or if the Company is not at the time required to file reports pursuant to such sections, unaudited quarterly and audited annual financial statements prepared in accordance with generally accepted accounting principles). Section 4.3 Notice of Certain Events. The Company shall (i) advise the Purchaser promptly after obtaining knowledge thereof, and, if requested by the Purchaser, confirm such advice in writing, of the issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of the Shares or the Common Stock for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any state securities commission or other regulatory authority, (ii) use its best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of the Shares or the Common Stock under any state securities or Blue Sky laws, and (iii) if at any time any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of the Shares or the Common Stock under any such laws, use its best efforts to obtain the withdrawal or lifting of such order at the earliest possible time. Section 4.4 Blue Sky Laws. The Company shall cooperate with the Purchaser in connection with the qualification of the Shares and the Underlying Shares under the securities or Blue Sky laws of such jurisdictions as the Purchaser may request and to continue such qualification at all times; provided, however, that neither the Company nor its Subsidiaries shall be required in connection therewith to qualify as a foreign corporation where they are not now so qualified. Section 4.5 Integration. The Company shall not and shall use its best efforts to ensure that no Affiliate shall sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Shares or the Underlying Shares in a manner that would require the registration under the Securities Act of the sale of the Shares or Underlying Shares to the Purchaser. Section 4.6 Filing of Reports. For so long as the Company is subject to the filing requirements of the Exchange Act, the Company shall timely file with the SEC all reports required to be filed by it under the Exchange Act. Section 4.7 Furnishing of Rule 144A Materials. The Company shall, for so long as any of the Shares or Underlying Shares remain outstanding and during any period in which it is not subject to Section 13 or 15(d) of the Exchange Act, make available to any registered holder of Shares or Underlying Shares in connection with any sale thereof and any prospective purchaser -9- of such Shares or Underlying Shares from such Person, the following information in accordance with Rule 144A(d)(4) under the Securities Act: a brief statement of the nature of the business of the Company and the products and services it offers and the Company's most recent audited balance sheet and profit and loss and retained earnings statements, and similar audited financial statements for such part of the two preceding fiscal years as the Company has been in operation. Section 4.8 Solicitation Materials. The Company has not and shall not solicit any offer to buy or sell the Shares or Underlying Shares by means of any form of general solicitation or advertising. Section 4.9 Matters Affecting Purchaser's Rights. From the date hereof through the Closing Date, the Company shall not and shall cause the Subsidiaries not to, without the consent of the Purchaser, (i) amend its Certificate of Incorporation, bylaws or other constituent documents so as to adversely affect any rights of the Purchaser; (ii) split, combine or reclassify its outstanding capital stock; (iii) other than the payment of a cash dividend, declare, authorize, set aside or pay any dividend or other distribution with respect to the Common Stock; or (iv) enter into any agreement with respect to any of the foregoing. Section 4.10 HSR Act Filings. If a filing is required under the HSR Act in connection with the issuance of the Shares or the Underlying Shares, the Company shall, as expeditiously as possible, prepare and file, and shall cooperate with the Purchaser in its preparation and filing of, any documents required under the HSR Act. ARTICLE V CONDITIONS PRECEDENT TO CLOSING Section 5.1 Conditions Precedent to Obligations of the Purchaser. The obligation of the Purchaser to purchase the Shares is subject to the satisfaction or waiver by the Purchaser, at or prior to the Closing, of each of the following conditions: (a) Legal Opinion. The Purchaser shall have received the legal opinion, addressed to it and dated the Closing Date, form the internal legal counsel for the Company, substantially in the form of Exhibit B; (b) Accuracy of the Company's Representations and Warranties. The representations and warranties of the Company contained herein shall be true and correct as of the date when made and as of the Closing Date as though made at that time (except that representations and warranties that are made as of a specific date need be true only as of such date); (c) Performance by the Company. The Company shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing; -10- (d) No Material Adverse Effect. Since the date of the financial statements included in the Company's last filed Annual Report on Form 10-K, no event which could reasonably be expected to have a Material Adverse Effect shall have occurred; (e) No Prohibitions. The purchase of and payment for the Shares (and upon conversion thereof, the Underlying Shares) hereunder shall not be prohibited or enjoined (temporarily or permanently) by any applicable law or governmental regulation; (f) Company Certificates. The Purchaser shall have received a certificate substantially in the form of Exhibit C, dated the Closing Date, signed by the Secretary or an Assistant Secretary of the Company and certifying (i) that attached thereto is a true, correct and complete copy of (A) the Company's Certificate of Incorporation, as amended to the date thereof and (B) resolutions duly adopted by the Board of Directors of the Company, or committee thereof, authorizing the execution and delivery of this Agreement and the issuance and sale of the Shares and the Underlying Shares; (g) No Suspensions of Trading in Common Stock. Trading in the Common Stock shall not have been suspended by the SEC or the NASD or other exchange or market on which the Common Stock is listed or quoted (except for any suspension of trading of limited duration solely to permit dissemination of material information regarding the Company); (h) Delivery of Stock Certificates. The Company shall have delivered to the Purchaser the stock certificate(s) representing the Shares, registered in the name of the Purchaser; (i) Filing of Certificate of Designation. The Company shall have filed with the Secretary of State of the State of Delaware, the Certificate of Designation in the form attached hereto as Exhibit A; (j) Acquisition Agreement. The Company and the Purchaser shall have entered into the Acquisition Agreement for the sale by the Company to the Purchaser of a 20% undivided interest in certain of the assets and properties of the Hawesville Aluminum Reduction Facility; and (k) Note Offering. Simultaneously with the Closing, the Company shall have completed the offering of its Senior Secured First Mortgage Notes due 2008 and shall have consummated the acquisition of MetalsCo. and related assets. Section 5.2 Conditions Precedent to Obligations of the Company. The obligation of the Company to issue and sell the Shares hereunder is subject to the satisfaction or waiver by the Company, at or prior to the Closing, of each of the following conditions: (a) Accuracy of the Purchaser's Representations and Warranties. The representations and warranties of the Purchaser shall be true and correct as of the date when made and as of the Closing Date as though made at that time (except that representations and warranties that are made as of a specific date need be true only as of such date); -11- (b) No Prohibitions. The purchase of and payment for the Shares (and upon conversion thereof, the Underlying Shares) hereunder shall not be prohibited or enjoined (temporarily or permanently) by any applicable law or governmental regulation; (c) Acquisition Agreement. The Purchaser and the Company shall have entered into the Acquisition Agreement for the sale by the Company to the Purchaser of a 20% undivided interest in certain of the assets and properties of the Hawesville Aluminum Reduction Facility; and (d) Performance by the Purchaser. The Purchaser shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by it at or prior to the Closing. ARTICLE VI TERMINATION Section 6.1 Termination by Mutual Consent. This Agreement may be terminated at any time prior to the Closing by the mutual consent of the Company and the Purchaser. Section 6.2 Termination by the Company or the Purchaser. This Agreement may be terminated prior to the Closing by either the Company or the Purchaser, by giving written notice of such termination to the other party, if: (a) the Closing shall not have occurred by April 30, 2001; provided that the terminating party is not then in material breach of its obligations under this Agreement in any manner that shall have caused the failure referred to in this paragraph (a); (b) there shall be in effect any statute, rule, law or regulation that prohibits the consummation of the Closing or if the consummation of the Closing would violate any non-appealable final judgment, order, decree, ruling or injunction of any court of or governmental authority having competent jurisdiction; or (c) there shall have been an amendment to the Securities Act or the rules and regulations promulgated thereunder or an interpretive release promulgated or issued thereunder, which, in the reasonable judgment of the terminating party, would materially adversely affect or prohibit without registration under the Securities Act the transactions contemplated hereby. ARTICLE VII MISCELLANEOUS Section 7.1 Fees and Expenses. The Company shall pay all stamp and other similar taxes and duties levied in connection with the issuance of the Shares (and upon conversion thereof, the Underlying Shares) pursuant hereto. The Purchaser shall be responsible for its own tax liability that may arise as a result of the investment hereunder or the transactions contemplated by this Agreement. Whether or not the transactions contemplated by this -12- Agreement are consummated or this Agreement is terminated, the Company shall pay (i) all costs, expenses, fees and all taxes incident to and in connection with: (A) the preparation and filing of the Certificate of Designation and all preliminary and final Blue Sky memoranda, (B) the issuance and delivery of the Shares and the certificates for the Shares, and upon conversion thereof, the Underlying Shares and the certificates for the Underlying Shares (including 50% of all costs and expenses in connection with any filings required under the HSR Act), and (C) furnishing such copies of the SEC Documents and all other information filed with the SEC and all amendments and supplements thereto or the information required to be delivered under Section 4.7 hereof, as the case may be, as may reasonably be requested for use in connection with resales of the Shares and, upon conversion thereof, the Underlying Shares, and (ii) all reasonable fees and expenses of the counsel and accountants of the Purchaser incurred by the Purchaser in connection with the negotiation, preparation, execution and delivery of this Agreement. Section 7.2 Entire Agreement. This Agreement, together with the Exhibits, hereto contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, with respect to such matters. Section 7.3 Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed given if delivered personally or mailed by certified or registered mail, postage prepaid, return receipt requested, or delivered to a nationally recognized next business day courier for delivery on the next business day, or by facsimile, with a copy sent as aforesaid and in any instance addressed as follows: If to the Company: Century Aluminum Company 2511 Garden Road Building A Suite 200 Monterey, CA 93940 Fax: 831-642-9328 Attn: Gerald J. Kitchen, Esq. If to the Purchaser: Glencore AG Baarermattstrasse 3 P.O. Box 666 CH-6341 Baar SWITZERLAND Attn: Chief Financial Officer or such other address as may be designated in writing hereafter, in the same manner, by such person. -13- Section 7.4 Indemnification. The Company shall indemnify, defend and hold harmless the Purchaser from and against all liabilities, losses, and damages (with the exception of consequential, special, indirect and punitive damages), together with all reasonable costs and expenses related thereto (including, without limitation, reasonable legal and accounting fees and expenses), which arise out of, result from or relate to any misrepresentation or breach by the Company of, or any failure by the Company to perform, any of its representations, warranties, covenants, obligations or agreements in this Agreement, the Certificate of Designation or any other instrument furnished by, or on behalf of, the Company under this Agreement. Notwithstanding anything to the contrary contained in this Section 7.4, the Company's liability under this Section shall not exceed US$25,000,000 plus the reasonable costs and expenses incurred by the Purchaser under this Section 7.4. Section 7.5 Arbitration. All controversies, claims, differences or disputes arising under, relating to or connected with this Agreement shall be finally settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the "AAA Rules"). The parties agree that such arbitration (i) shall take place in New York, New York, U.S.A., (ii) shall be before a panel of three (3) arbitrators chosen in accordance with the AAA Rules, and (iii) shall be conducted in the English language. The award in any such arbitration shall be final, binding and conclusive; and judgment thereon may be entered in any court of competent jurisdiction. Section 7.6 Amendments; Waivers. No provision of this Agreement may be waived or amended except in a written instrument signed, in the case of an amendment, by both the Company and the Purchaser, or, in the case of a waiver, by the party against whom enforcement of any such waiver is sought. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of either party to exercise any right hereunder in any manner impair the exercise of any such right accruing to it thereafter. Section 7.7 .Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof. Section 7.8 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns, including each other Person who shall become a registered holder of the Shares or the Underlying Shares transferred to such holder by the Purchaser or its permitted transferees and their respective legal representatives, successors and assigns. The Company shall not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Purchaser. Section 7.9 No Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person. Section 7.10 Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware without regard to the principles of conflicts of law thereof. -14- Section 7.11 Survival. The representations and warranties of the Company and the Purchaser contained in Article III and the agreements and covenants of the parties contained in Article IV and this Article VII shall survive the Closing (or any earlier termination of this Agreement) and any conversion or transfer of the Shares hereunder. Section 7.12 Counterpart Signatures. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) the same with the same force and effect as if such facsimile signature page were an original thereof. Section 7.13 Publicity. The Company and the Purchaser shall consult with each other in issuing any press releases or otherwise making public statements with respect to the transactions contemplated hereby and neither party shall issue any such press release or otherwise make any such public statement without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed, unless such press release or public statement is required by law, in which case, the parties shall consult with each other to the extent practical under the circumstances regarding the text of such press release or public statement. Section 7.14 Severability. In case any one or more of the provisions of this Agreement shall be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Agreement shall not in any way be affected or impaired thereby and the parties will attempt to agree upon a valid and enforceable provision which shall be a reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Agreement. Section 7.15 Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, the Purchaser will be entitled to specific performance of the obligations of the Company under this Agreement and the Company will be entitled to specific performance of the obligations of the Purchaser hereunder. Each of the Company and the Purchaser agrees that monetary damages would not be adequate compensation for any loss incurred by reason of any breach of its obligations described in the foregoing sentence and hereby agrees to waive in any action for specific performance of any such obligation the defense that a remedy at law would be adequate. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. CENTURY ALUMINUM COMPANY By: /s/ Gerald J. Kitchen ----------------------------------------- Name: Gerald J. Kitchen Title: Executive Vice President, General Counsel and Chief Administrative Officer -15- GLENCORE AG By: /s/ Josef Bermann Zbynek Zak --------------------------------- Name: Josef Bermann Zbynek Zak Title: Director Director -16- EX-3.(I) 4 d25383_ex3.txt CERTIFICATE OF DESIGNATION Exhibit 3 CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS OF 8% CUMULATIVE CONVERTIBLE PREFERRED STOCK OF CENTURY ALUMINUM COMPANY CENTURY ALUMINUM COMPANY (the "Company"), a corporation organized and existing under the General Corporation Law of the State of Delaware, does hereby certify that, pursuant to the authority conferred upon the Board of Directors of the Company by the Certificate of Incorporation of the Company and pursuant to Section 151 of the General Corporation Law of the State of Delaware, a Committee of the Board of Directors of the Company, at a meeting duly held on March 28, 2001, duly adopted resolutions authorizing a series of the Company's previously authorized Preferred Stock, par value $0.01 per share with the following preferences and rights: SECTION 1. Designation, Amount and Par Value. The series of Preferred Stock shall be designated as the 8% Cumulative Convertible Preferred Stock (the "Preferred Stock"), and the number of shares so designated shall be 500,000. The par value of each share of Preferred Stock shall be $0.01. Each share of Preferred Stock shall have a stated value of $50.00 per share (the "Stated Value"). SECTION 2. Dividends. (a) Holders of Preferred Stock shall be entitled to receive and the Company shall pay, when, as and if declared by the Board of Directors out of funds legally available therefor, cumulative cash dividends at the rate per share (as a percentage of the Stated Value per share) equal to 8% per annum, payable quarterly in arrears on each March 31, June 30, September 30 and December 31 (each, a "Dividend Payment Date") and on the Conversion Date (as hereinafter defined). Dividends on the Preferred Stock shall accrue daily commencing on the Original Issue Date (as defined in Section 7) and shall be deemed to accrue whether or not earned or declared and whether or not there are profits, surplus or other funds of the Company legally available for the payment of dividends. The person that is shown on the Company's records as the holder of the Preferred Stock on an applicable record date (the "Holder") for any dividend payment will be entitled to receive such dividend payment and any other accrued and unpaid dividends which accrued prior to such Dividend Payment Date, without regard to any sale or disposition of such Preferred Stock subsequent to the applicable record date but prior to the applicable Dividend Payment Date. Except as otherwise provided herein, if at any time the Company pays less than the total amount of dividends then accrued on the Preferred Stock, such payment shall be distributed ratably among the Holders of the Preferred Stock based upon the number of shares held by each Holder. (b) So long as any Preferred Stock shall remain outstanding, unless all accrued dividends payable on the Preferred Stock for all prior Dividend Payment Dates shall have been paid, neither the Company nor any subsidiary thereof shall redeem, purchase or otherwise acquire, directly or indirectly, any Common Stock (as defined in Section 5) or any shares of any other capital stock of the Company, ranking junior to the Preferred Stock in respect of dividends or liquidation preference, except the repurchase of shares of capital stock of the Company held by officers, directors or employees or former officers, directors or employees (or their estates or beneficiaries), upon death, disability, retirement, severance or termination of employment, or in order to satisfy tax withholding obligations of such persons upon the exercise of options or the vesting of performance shares or pursuant to any agreement under which such shares were issued, nor shall the Company directly or indirectly pay or declare any cash dividend or make any cash distribution (other than a dividend or distribution described in Section 5) upon, nor shall any cash distribution be made in respect of, any Common Stock or any other capital stock of the Company ranking junior to the Preferred Stock in respect of dividends or liquidation preference, nor shall any monies be set aside for or applied to the purchase or redemption (through a sinking fund or otherwise) of any Common Stock or any shares of any other capital stock of the Company, ranking junior to the Preferred Stock in respect of dividends or liquidation preference, except as described above. SECTION 3. Voting Rights. Except as otherwise provided herein and as otherwise provided by law, the Preferred Stock shall have no voting rights. So long as any shares of Preferred Stock are outstanding, the Company shall not, without the affirmative vote of the Holders of a majority of the shares of Preferred Stock then outstanding, (i) alter or change adversely the powers, preferences or rights given to the Preferred Stock, through an amendment to the Company's Certificate of Incorporation or otherwise, (ii) authorize or create any class of stock ranking as to dividends or distribution of assets upon a Liquidation (as defined below) senior to, prior to or pari passu with the Preferred Stock, or (iii) reorganize or reclassify the capital stock of the Company or merge or consolidate with or into any other company or entity. SECTION 4. Liquidation. Upon any liquidation, dissolution or winding-up of the Company, whether voluntary or involuntary (a "Liquidation"), the Holders of shares of Preferred Stock shall be entitled to receive out of the assets of the Company, whether such assets are capital or surplus, for each share of Preferred Stock an amount equal to the Stated Value, plus an amount equal to the then accrued but unpaid dividends per share, whether declared or not, but without interest ("Liquidation Preference"), before any distribution or payment shall be made to the holders of Common Stock or any other capital stock of the Company junior in respect of distribution of assets, and if the assets of the Company shall be insufficient to pay in full such amounts, then the entire assets to be distributed shall be distributed among the Holders of Preferred Stock ratably in accordance with the respective amounts that would be payable on such shares if all amounts payable thereon were paid in full. A sale, conveyance or disposition of all or substantially all of the assets of the Company, other than to a domestic subsidiary of the Company, shall be deemed a Liquidation; however, a consolidation or merger of the Company with or into any other company or companies shall not be treated as a Liquidation, but instead shall be subject to the provisions of Section 5. The Company shall mail written notice of any such Liquidation, not less than 30 days prior to the payment date stated therein, to each record Holder of Preferred Stock. SECTION 5. Conversion. (a) Right to Convert. Each Holder of the Preferred Stock shall have the right at any time and from time to time, at the option of such Holder, to convert any or all Preferred Stock held by such Holder, into such number of fully paid, validly issued and nonassessable shares of common stock, par value $0.01 per share, of the Company ("Common Stock"), free and clear of any liens, claims or encumbrances created by the Company, as is determined by dividing -2- (i) the Liquidation Preference times the number of shares of Preferred Stock being converted ("Conversion Amount"), by (ii) the applicable Conversion Price (determined as hereinafter provided) in effect on the Conversion Date. Immediately following such conversion, the rights of the Holders of converted Preferred Stock shall cease and the persons entitled to receive the Common Stock upon the conversion of Preferred Stock shall be treated for all purposes as then having become the owners of such Common Stock. The right to convert any shares of Preferred Stock called for redemption under Section 6 shall continue until and shall expire at 4:30 New York time on the last business day prior to the redemption date. Any conversion of Preferred Stock by any Holder shall be of a minimum number of 1,000 shares of Preferred Stock, except in the event that any Holder holds less than 1,000 shares of Preferred Stock, in which case, all such shares held by such Holder may be converted. (b) Mechanics of Conversion. To convert Preferred Stock into Common Stock, the Holder shall give written notice ("Conversion Notice") to the Company (which Conversion Notice may be given by facsimile transmission no later than the Conversion Date) stating that such Holder elects to convert the same and shall state therein the number of shares of Preferred Stock to be converted and the name or names in which such Holder wishes the certificate or certificates for Common Stock to be issued (the conversion date specified in such Conversion Notice shall be referred to herein as the "Conversion Date"). As soon as possible after delivery of the Conversion Notice, such Holder shall surrender the certificate or certificates representing the Preferred Stock being converted, duly endorsed, at the office of the Company or, if identified in writing to all the Holders by the Company, at the offices of any transfer agent for the Preferred Stock. The Company shall, upon receipt of such Conversion Notice, issue and deliver to or upon the order of such Holder, against delivery of the certificates representing the Preferred Stock which have been converted, a certificate or certificates for the number of shares of Common Stock to which such Holder shall be entitled (with the number of and denomination of such certificates designated by such Holder), and the Company shall immediately issue and deliver to such Holder a certificate or certificates for the number of shares of Preferred Stock (including any fractional shares) which such Holder has not yet elected to convert hereunder but which are evidenced in part by the certificate(s) delivered to the Company in connection with such Conversion Notice. The Company shall not be obligated to issue certificates evidencing the shares of Common Stock issuable upon such conversion unless certificates evidencing such shares of the Preferred Stock being converted are either delivered to the Company or its transfer agent or the Holder notifies the Company or any such transfer agent that such certificates have been lost, stolen or destroyed and executes an agreement reasonably satisfactory to the Company to indemnify the Company from any loss incurred by it in connection therewith. In lieu of delivering physical certificates representing the Common Stock issuable upon conversion of Preferred Stock, provided the Company's transfer agent is participating in the Depository Trust Company ("DTC") Fast Automated Securities Transfer program, upon request of the Holder, the Company shall use its best efforts to cause its transfer agent to electronically transmit the Common Stock issuable upon conversion to the Holder, by crediting the account of the Holder's prime broker with DTC through its Deposit Withdrawal Agent Commission ("DWAC") system. The parties agree to coordinate with DTC to accomplish this objective. The conversion pursuant to this Section 5 shall be deemed to have been made immediately prior to the close of business on the Conversion Date. The person or persons entitled to receive the Common Stock issuable upon such conversion shall be treated for all purposes as the record holder or holders of such Common Stock at the close of business on the Conversion Date. The Company's obligation to -3- issue Common Stock upon conversion of Preferred Stock shall, except with respect to the Holder's compliance with the notice and delivery requirements set forth above in this Section 5(b), be absolute, is independent of any covenant of the Holder of Preferred Stock, and shall not be subject to: (i) any offset or defense, or (ii) any claims against the Holders of Preferred Stock whether pursuant to this Certificate of Designation, the Purchase Agreement (as defined in Section 7) or otherwise. In the event that the Company disputes the Holder's computation of the number of shares of Common Stock to be received, then the Company shall deliver to the Holder the number of shares of Common Stock not in dispute and shall seek to mutually agree with the Holder in good faith on the correct number of shares to be received. (c) Determination of Conversion Price. The Conversion Price applicable with respect to the Preferred Stock (the "Conversion Price"), subject to the adjustments set forth below, shall be $17.92 per share. (d) Stock Splits; Dividends; Adjustments. (i) If the Company, at any time while the Preferred Stock is outstanding shall, (A) pay a stock dividend or otherwise make a distribution or distributions on any equity securities (including instruments or securities convertible into or exchangeable for such equity securities) in shares of Common Stock, (B) subdivide outstanding Common Stock into a larger number of shares, or (C) combine outstanding Common Stock into a smaller number of shares, then the Conversion Price shall be multiplied by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately before such event and the denominator of which shall be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to this Section 5(d)(i) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. (ii) In the event that the Company issues or sells any Common Stock or securities which are convertible into or exchangeable for its Common Stock (other than the Preferred Stock), or any warrants or other rights to subscribe for or to purchase or any options for the purchase of its Common Stock ("Convertible Securities") (other than shares or options issued or which may be issued pursuant to (A) the Company's current or future employee or director stock incentive or option plans or shares issued upon exercise of options, warrants or rights or upon the vesting of performance shares outstanding on the date of the Purchase Agreement and listed in the Company's most recent periodic report filed under the Securities Exchange Act of 1934, as amended, (B) arrangements with the Holders of Preferred Stock, or (C) upon the conversion of the Preferred Stock) ("Exempted Issuances") at an effective purchase price per share which is less than the Per Share Market Value (as defined in Section 7) of the Common Stock on the Trading Day next preceding such issue or sale or, in the case of issuances to holders of its Common Stock, the record date fixed for the determination of stockholders entitled to receive Common Stock or Convertible Securities (the "Fair Market Price"), the Conversion Price in effect immediately prior to such issue or sale or record date, as applicable, shall be reduced effective concurrently with such issue or sale to an amount -4- determined by multiplying the Conversion Price then in effect by a fraction, (1) the numerator of which shall be the sum of (x) the number of shares of Common Stock outstanding immediately prior to such issue or sale and (y) the number of shares of Common Stock which the aggregate consideration received by the Company for such additional shares would purchase at the Fair Market Price, and (2) the denominator of which shall be the number of shares of Common Stock and Convertible Securities of the Company outstanding immediately after such issue or sale. For the purposes of the foregoing adjustment, shares of Common Stock owned by or held on account of the Company or any subsidiary shall not be deemed outstanding for the purpose of any such computation. In addition, for the purposes of the foregoing adjustment, in the case of the issuance of any Convertible Securities, the maximum number of shares of Common Stock issuable upon exercise, exchange or conversion of such Convertible Securities shall be deemed to be outstanding, and the aggregate consideration received by the Company for the issuance or sale of such Convertible Securities shall be deemed to include any consideration that would be received by the Company in connection with the exercise, exchange or conversion of such Convertible Securities, provided that no further adjustment shall be made upon the actual issuance of Common Stock upon exercise, exchange or conversion of such Convertible Securities. However, upon the expiration of any right or warrant to purchase Common Stock the issuance of which resulted in an adjustment in the Conversion Price designated in Section 5(c) pursuant to this Section 5(d)(ii), if any such right or warrant shall expire and shall not have been exercised, the Conversion Price designated in Section 5(c) shall immediately upon such expiration be recomputed and effective immediately upon such expiration be increased to the price which it would have been (but reflecting any other adjustments in the Conversion Price made pursuant to the provisions of this Section 5 after the issuance of such rights or warrants) had the adjustment of the Conversion Price made upon the issuance of such rights or warrants been made on the basis of offering for subscription or purchase only that number of shares of Common Stock actually purchased upon the exercise of such rights or warrants actually exercised. (iii) If the Company, at any time while the Preferred Stock is outstanding, shall distribute to all holders of Common Stock evidence of its indebtedness or assets or cash (other than ordinary cash dividends) or rights or warrants to subscribe for or purchase any security of the Company or any of its subsidiaries (excluding those referred to in Sections 5(d)(i) or 5(d)(ii) above), then concurrently with such distributions to holders of Common Stock, the Company shall distribute to Holders of the Preferred Stock, the amount of such indebtedness, assets, cash or rights or warrants which the Holders of Preferred Stock would have received had they converted all their Preferred Stock into Common Stock immediately prior to the record date for such distribution. (iv) All calculations under this Section 5 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. (v) Whenever the Conversion Price is adjusted pursuant to this Section 5(d), the Company shall promptly mail to each Holder of Preferred Stock, a notice setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment. (vi) No adjustment in the Conversion Price shall reduce the Conversion Price below the then par value of the Common Stock. -5- (vii) The Company from time to time may reduce the Conversion Price by any amount for any period of time if the period is at least 20 Trading Days and if the reduction is irrevocable during the period. Whenever the Conversion Price is reduced, the Company shall mail to the Holders of Preferred Stock a notice of the reduction. The Company shall mail, first class, postage prepaid, the notice at least 15 days before the date the reduced Conversion Price takes effect. The notice shall state the reduced Conversion Price and the period it will be in effect. A reduction of the Conversion Price does not change or adjust the Conversion Price otherwise in effect for purposes of Section 5(d)(i), (ii), or (iii). (viii) If: A. In the event of any taking by the Company of a record date of the holders of any class of securities for the purpose of determining the holders thereof who are entitled to receive any dividend or other distribution, any security or right convertible into or entitling the holder thereof to receive additional shares of Common Stock, or any right to subscribe for, purchase or otherwise acquire any shares of stock of any class or any other securities or property, or to receive any other right; or B. The Company shall declare a special nonrecurring cash dividend on or a redemption of its Common Stock; or C. The approval of any stockholders of the Company shall be required in connection with any reclassification of the Common Stock of the Company (other than a subdivision or combination of the outstanding shares of Common Stock), any consolidation or merger to which the Company is a party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property; or D. The Company shall authorize the voluntary or involuntary dissolution, liquidation or winding-up of the affairs of the Company; then the Company shall cause to be filed at each office or agency maintained for the purpose of conversion of Preferred Stock, and shall cause to be mailed to the Holders of Preferred Stock at their last addresses as they shall appear upon the stock books of the Company, at least 15 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined, or (y) the date on which such reclassification, consolidation, merger, sale, transfer, share -6- exchange, dissolution, liquidation or winding-up is expected to become effective, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such reclassification, consolidation, merger, sale, transfer, share exchange, dissolution, liquidation or winding-up; provided, however, that the failure to mail such notice or any defect therein or in the mailing thereof shall not affect the validity of the corporate action required to be specified in such notice. (e) Reorganization, Merger or Going Private. In case of any reorganization or reclassification of the capital stock of the Company, any consolidation or merger of the Company with or into another person, any compulsory share exchange pursuant to which the Common Stock is converted into other securities, cash or property or a "going private" transaction under Rule 13e-3 promulgated pursuant to the Exchange Act, the Holders of the Preferred Stock then outstanding shall be deemed to have converted their Preferred Stock into Common Stock immediately prior to such reorganization, reclassification, consolidation, merger or share exchange and shall have the right thereafter to convert such shares only into the shares of stock and other securities and property receivable upon or deemed to be held by holders of Common Stock following such reorganization, reclassification, consolidation, merger or share exchange, and the Holders of the Preferred Stock shall be entitled upon such event to receive such amount of securities or property as the shares of the Common Stock of the Company into which such shares of Preferred Stock could have been converted immediately prior to such reorganization, reclassification, consolidation, merger or share exchange would have been entitled. The terms of any such reorganization, reclassification, consolidation, merger or share exchange shall include such terms so as to continue to give to the Holder of Preferred Stock the right to receive the securities or property set forth in this Section 5(e) upon any conversion following such reorganization, reclassification, consolidation, merger or share exchange. This provision shall similarly apply to successive reorganizations, reclassifications, consolidations, mergers, or share exchanges. (f) Other Actions. The Company will not avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company and will at all times in good faith assist in the carrying out of all of the provisions of this Section 5 and in the taking of all action as may be necessary or appropriate in order to protect the conversion rights of the Holders of the Preferred Stock against impairment. (g) Reservation of Shares. The Company covenants that it will at all times reserve and keep available out of its authorized and unissued Common Stock solely for the purpose of issuance upon conversion of Preferred Stock as herein provided, free from preemptive rights or any other contingent purchase rights of persons other than the Holders of Preferred Stock, such number of shares of Common Stock as shall be issuable (taking into account the adjustments of Section 5(d) hereof) upon the conversion of all outstanding shares of Preferred Stock. The Company covenants that all shares of Common Stock that shall be so issuable shall, upon issue, be duly and validly authorized, issued and fully paid and nonassessable. The Company promptly will take such corporate action as may, in the opinion of its counsel, which may be an employee of the Company, be necessary to increase its authorized but unissued shares -7- of Common Stock to such number of shares as shall be sufficient for such purpose, including without limitation engaging in best efforts to obtain the requisite stockholder approval. (h) Fractional Shares. Upon a conversion hereunder the Company shall not be required to issue stock certificates representing fractions of shares of Common Stock, but may if otherwise permitted by applicable law, make a cash payment in respect of any final fraction of a share based on the Per Share Market Value at such time. If the Company elects not, or is unable, to make such a cash payment, the Holder of a share of Preferred Stock shall be entitled to receive, in lieu of the final fraction of a share, one whole share of Common Stock. (i) Taxes. The issuance of certificates for shares of Common Stock on conversion of Preferred Stock shall be made without charge to the Holders thereof for any documentary, stamp or similar taxes that may be payable in respect of the issue or delivery of such certificate, provided that the Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such certificate upon conversion in a name other than that of the Holder of such shares of Preferred Stock so converted and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. (j) Status of Converted or Redeemed Shares. Shares of Preferred Stock converted into Common Stock or redeemed shall be canceled and shall have the status of authorized but unissued shares of Preferred Stock. (k) Giving of Notice. Each Conversion Notice shall be given (i) by facsimile and by mail, postage prepaid, addressed to the attention of the Chief Financial Officer of the Company at the facsimile telephone number and address of the principal place of business of the Company, (ii) by overnight courier or (iii) by hand. Any such notice shall be deemed given and effective upon the earliest to occur of (1)(a) if such Conversion Notice is delivered via facsimile prior to 4:30 p.m. (local time in New York, NY) on any date, such date or such later date as is specified in the Conversion Notice, and (b) if such Conversion Notice is delivered via facsimile after 4:30 p.m. (local time in New York, NY) on any date, the next date or such later date as is specified in the Conversion Notice, (2) if such Conversion Notice is delivered by overnight courier, two business days after delivery to a nationally recognized overnight courier service or (3) if such Conversion Notice is delivered by hand, upon actual receipt. SECTION 6. Redemption. The Company may, at the option of the Board of Directors, redeem all or any part of the outstanding Preferred Stock at any time after the third anniversary of the Original Issue Date, by paying for each share so redeemed the redemption prices listed below, together with an amount equal to all cumulative dividends accrued and unpaid thereon to the date fixed for redemption, provided that notice of redemption is sent by certified mail to the Holders of the Preferred Stock to be redeemed at least 40 but not more than 60 days prior to the date of redemption specified in such notice, addressed to each such Holder at his/her address as it appears in the records of the Company. On or after the redemption date, each Holder of shares of Preferred Stock to be redeemed shall present and surrender his/her certificate or certificates for such shares to the Company at the place designated in such notice and thereupon the redemption -8- price of such shares shall be paid to or to the order of the person whose name appears on such certificate or certificates as the owner thereon and each surrendered certificate shall be cancelled. In case less than all the shares represented by any such certificates are redeemed, a certificate shall be issued representing the unredeemed shares. From and after the redemption date (unless default shall be made by the Company in payment of the redemption price) all dividends on the shares of Preferred Stock designated for redemption in such notice shall cease to accrue, and all rights of the Holders thereof as stockholders of the Company, except the right to receive the redemption price thereof upon the surrender of certificates representing the same, without interest, shall cease and terminate and such shares shall not thereafter be transferred (except with the consent of the Company) on the books of the Company, and such shares shall not be deemed to be outstanding for any purpose whatsoever. At its election, the Company prior to the redemption date may deposit the redemption price of the shares of Preferred Stock so called for redemption in trust for the Holders thereof with a bank or trust company (having a capital and surplus of not less than $500,000,000) in which case such notice to Holders of the Preferred Stock to be redeemed shall state the date of such deposit, shall specify the office of such bank or trust company as the place of payment of the redemption price, and shall call upon such Holders to surrender the certificates representing such shares at such price on or after the date fixed in such redemption notice (which shall not be later than the redemption date) against payment of the redemption price. From and after the making of such deposit, the shares of Preferred Stock so designated for redemption shall not be deemed to be outstanding for any purpose whatsoever, and the rights of the Holders of such shares shall be limited to the right to receive the redemption price of such shares, without interest, upon surrender of the certificates representing the same to the Company at said office of such bank and trust company, and the right of conversion (on or before the close of business on the last business day prior to the date fixed for redemption) herein provided. Any funds so deposited which shall not be required for such redemption because of the exercise of such right of conversion after the date of such deposit shall be returned to the Company. Any interest accrued on such funds shall be paid to the Company from time to time. Any moneys so deposited which shall remain unclaimed by the Holders of such Preferred Stock at the end of three years after the redemption date shall be returned by such bank or trust company to the Company after which the Holders of the Preferred Stock shall look only to the Company for payment of the redemption price. In the event that less than all the outstanding shares of Preferred Stock are to be redeemed at one time, the shares so to be redeemed shall be redeemed pro rata. The prices at which each share of Preferred Stock may be redeemed during the periods set forth below are as follows: Prior to the third anniversary of the Original Issue Date: No right to redeem. After the third anniversary of the Original Issue Date but before the fourth anniversary of the Original Issue Date: $52.00 together with an amount equal to all cumulative dividends accrued and unpaid thereon to the date of redemption. After the fourth anniversary of the Original Issue Date but before the fifth anniversary of the Original Issue Date: $51.60 together with an amount equal to all cumulative dividends accrued and unpaid thereon to the date of redemption. -9- After the fifth anniversary of the Original Issue Date but before the sixth anniversary of the Original Issue Date: $51.20 together with an amount equal to all cumulative dividends accrued and unpaid thereon to the date of redemption. After the sixth anniversary of the Original Issue Date but before the seventh anniversary of the Original Issue Date: $50.80 together with an amount equal to all cumulative dividends accrued and unpaid thereon to the date of redemption. After the seventh anniversary of the Original Issue Date but before the eighth anniversary of the Original Issue Date: $50.40 together with an amount equal to all cumulative dividends accrued and unpaid thereon to the date of redemption. After the eighth anniversary of the Original Issue Date: $50.00 together with an amount equal to all cumulative dividends accrued and unpaid thereon to the date of redemption. SECTION 7. Definitions. For the purposes hereof, the following terms shall have the following meanings: "Original Issue Date" shall mean the date of the first issuance of any shares of Preferred Stock regardless of the number of transfers of any particular shares of Preferred Stock and regardless of the number of certificates which may be issued to evidence such Preferred Stock. "Per Share Market Value" means on any particular date (a) the closing sales price per share of the Common Stock on such date on The Nasdaq Stock Market or if the Common Stock is not listed on The Nasdaq Stock Market, on such other stock exchange on which the Common Stock has been listed or if there is no such price on such date, then the closing sales price on such exchange on the date nearest preceding such date, or (b) if the Common Stock is not listed on The Nasdaq Stock Market or any stock exchange, the closing sales price for a share of Common Stock in the over-the-counter market, as reported by the NASD at the close of business on such date, or (c) if the Common Stock is not quoted on the NASD, the closing sales price for a share of Common Stock in the over-the-counter market as reported by the National Quotation Bureau Incorporated (or similar organization or agency succeeding to its functions of reporting prices), or (d) if the Common Stock is no longer publicly traded the fair market value of a share of Common Stock as determined by a nationally recognized or major regional investment banking firm or firm of independent certified public accountants of recognized standing (which may be the firm that regularly examines the financial statements of the Company )(an "Appraiser") selected in good faith by the Holders of a majority of the shares of the Preferred Stock; provided, however, that the Company, after receipt of the determination by such Appraiser, shall have the right to select an additional Appraiser, in which case, the fair market value shall be equal to the average of the determinations by each such Appraiser. -10- "Purchase Agreement" means the Cumulative Convertible Preferred Stock Purchase Agreement, dated as of the Original Issue Date, between the Company and the original Holder of the Preferred Stock. "Trading Day" means (a) a day on which the Common Stock is traded on The Nasdaq Stock Market or principal stock exchange on which the Common Stock is then listed, or (b) if the Common Stock is not listed on The Nasdaq Stock Market or any stock exchange, a day on which the Common Stock is traded in the over-the-counter market, as reported by the NASD, or (c) if the Common Stock is not quoted on The Nasdaq Stock Market, a day on which the Common Stock is quoted in the over-the-counter market as reported by the National Quotation Bureau Incorporated (or any similar organization or agency succeeding its functions of reporting prices). IN WITNESS WHEREOF, Century Aluminum Company has caused this certificate to be signed by Gerald J. Kitchen, its Executive Vice President, General Counsel and Chief Administrative Officer and attested by, Daniel J. Krofcheck, its Vice President and Treasurer, this 28th day of March 2001. CENTURY ALUMINUM COMPANY By: /s/ Gerald J. Kitchen ----------------------------------------- Executive Vice President, General Counsel and Chief Administrative Officer Attest: By: /s/ Daniel J. Krofcheck ---------------------------- Vice President and Treasurer -11- -----END PRIVACY-ENHANCED MESSAGE-----