SC 13D/A
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 3)
CENTURY ALUMINUM COMPANY
COMMON STOCK, $0.01 Par Value
(Title of Class of Securities)
156431 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)
July 7, 2008
(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
§§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o
Note: Schedules filed in paper format shall include a signed original and five copies of the
schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to
be sent.
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).
TABLE OF CONTENTS
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1 |
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NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY).
Glencore AG |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
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(a) o |
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(b) o |
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3 |
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SEC USE ONLY |
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SOURCE OF FUNDS (SEE INSTRUCTIONS) |
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OO |
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5 |
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
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o |
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6 |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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Switzerland
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7 |
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SOLE VOTING POWER |
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NUMBER OF |
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None |
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SHARES |
8 |
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SHARED VOTING POWER |
BENEFICIALLY |
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OWNED BY |
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11,706,307 shares (1) |
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EACH |
9 |
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SOLE DISPOSITIVE POWER |
REPORTING |
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PERSON |
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None |
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WITH |
10 |
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SHARED DISPOSITIVE POWER |
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11,706,307 shares (1) |
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11 |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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11,706,307 shares (1) |
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12 |
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) |
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n/a
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13 |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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28.5% |
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14 |
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) |
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CO, HC |
(1) Represents shares owned directly by Glencore AG, which will be transferred to Glencore Investment Pty Ltd. (Glencore Investment) pursuant to planned intercompany transfers within 60 days of the date of this filing.
2
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1 |
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NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY).
Glencore Investment Pty Ltd |
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2 |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
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(a) o |
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(b) o |
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3 |
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SEC USE ONLY |
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4 |
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SOURCE OF FUNDS (SEE INSTRUCTIONS) |
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OO |
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5 |
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
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o |
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6 |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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Western Australia
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7 |
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SOLE VOTING POWER |
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NUMBER OF |
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None |
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SHARES |
8 |
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SHARED VOTING POWER |
BENEFICIALLY |
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OWNED BY |
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11,706,307 shares (1)(2) |
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EACH |
9 |
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SOLE DISPOSITIVE POWER |
REPORTING |
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PERSON |
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None |
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WITH |
10 |
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SHARED DISPOSITIVE POWER |
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11,706,307 shares (1)(2) |
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11 |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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11,706,307 shares (1)(2) |
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12 |
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) |
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n/a
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13 |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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28.5% |
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14 |
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) |
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CO |
(1) Represents shares owned directly by Glencore AG,
which will be transferred to Glencore Investment pursuant to planned intercompany transfers within 60 days of the date of this filing.
(2) Excludes 16,000,000 shares of Common Stock issuable upon conversion of Series A Preferred Stock owned by Glencore Investment, which are convertible only (i) upon the occurrence of events that have not transpired and that are outside of the control of Glencore Investment, or (ii) in circumstances that would not result in an increase in the percentage of shares of Common Stock beneficially owned by Glencore Investment.
3
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1 |
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NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY).
Glencore Investments AG |
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2 |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
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(a) o |
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(b) o |
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3 |
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SEC USE ONLY |
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4 |
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SOURCE OF FUNDS (SEE INSTRUCTIONS) |
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OO |
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5 |
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
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o |
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6 |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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Switzerland
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7 |
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SOLE VOTING POWER |
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NUMBER OF |
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None |
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SHARES |
8 |
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SHARED VOTING POWER |
BENEFICIALLY |
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OWNED BY |
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11,706,307 shares (1)(2) |
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EACH |
9 |
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SOLE DISPOSITIVE POWER |
REPORTING |
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PERSON |
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None |
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WITH |
10 |
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SHARED DISPOSITIVE POWER |
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11,706,307 shares (1)(2) |
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11 |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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11,706,307 shares (1)(2) |
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12 |
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) |
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n/a
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13 |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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28.5% |
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14 |
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) |
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CO, HC |
(1) Represents shares owned directly by Glencore AG, which will be transferred to Glencore Investment pursuant to planned intercompany transfers within 60 days of the date of this filing.
(2) Excludes 16,000,000 shares of Common Stock issuable upon conversion of Series A Preferred Stock owned by Glencore Investment, which are convertible only (i) upon the occurrence of events that have not transpired and that are outside of the control of Glencore Investment, or (ii) in circumstances that would not result in an increase in the percentage of shares of Common Stock beneficially owned by Glencore Investment.
4
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1 |
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NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY).
Glencore International AG |
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2 |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
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(a) o |
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(b) o |
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3 |
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SEC USE ONLY |
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4 |
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SOURCE OF FUNDS (SEE INSTRUCTIONS) |
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OO |
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5 |
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
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o |
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6 |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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Switzerland
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7 |
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SOLE VOTING POWER |
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NUMBER OF |
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None |
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SHARES |
8 |
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SHARED VOTING POWER |
BENEFICIALLY |
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OWNED BY |
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11,706,307 shares (2) |
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EACH |
9 |
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SOLE DISPOSITIVE POWER |
REPORTING |
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PERSON |
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None |
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WITH |
10 |
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SHARED DISPOSITIVE POWER |
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11,706,307 shares (2) |
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11 |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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11,706,307 shares (2) |
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12 |
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) |
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n/a
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13 |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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28.5% |
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14 |
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) |
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CO, HC |
(2) Excludes 16,000,000 shares of Common Stock issuable upon conversion of Series A Preferred Stock owned by Glencore Investment, which are convertible only (i) upon the occurrence of events that have not transpired and that are outside of the control of Glencore Investment, or (ii) in circumstances that would not result in an increase in the percentage of shares of Common Stock beneficially owned by Glencore Investment.
5
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1 |
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NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY).
Glencore Holding AG |
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2 |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
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(a) o |
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(b) o |
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3 |
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SEC USE ONLY |
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4 |
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SOURCE OF FUNDS (SEE INSTRUCTIONS) |
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OO |
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5 |
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
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o |
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6 |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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Switzerland
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7 |
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SOLE VOTING POWER |
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NUMBER OF |
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SHARES |
8 |
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SHARED VOTING POWER |
BENEFICIALLY |
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OWNED BY |
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11,706,307 shares (2) |
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EACH |
9 |
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SOLE DISPOSITIVE POWER |
REPORTING |
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PERSON |
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WITH |
10 |
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SHARED DISPOSITIVE POWER |
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11,706,307 shares (2) |
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11 |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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11,706,307 shares (2) |
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12 |
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) |
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n/a
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13 |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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28.5% |
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14 |
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) |
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CO, HC |
(2) Excludes 16,000,000 shares of Common Stock issuable upon conversion of Series A Preferred Stock owned by Glencore Investment, which are convertible only (i) upon the occurrence of events that have not transpired and that are outside of the control of Glencore Investment, or (ii) in circumstances that would not result in an increase in the percentage of shares of Common Stock beneficially owned by Glencore Investment.
6
Explanatory Note:
This is the third amendment (Amendment No. 3) to the statement on Schedule 13D
originally filed by Glencore AG, Glencore International AG (Glencore International) and
Glencore Holding AG (Glencore Holding) with the Securities and Exchange Commission on
April 12, 2001, and amended on May 25, 2004 and on November 27, 2007, relating to the common stock,
par value $0.01 per share (Common Stock) of Century Aluminum Company (the
Company). The information set forth in this Amendment No. 3 reflects, among other
things, (i) the acquisition by the reporting persons of Series A Convertible Preferred Stock, par
value $0.01 per share (Series A Preferred Stock) of the Company, which is convertible
into Common Stock in certain circumstances described below, and (ii) the plan to transfer the
11,706,307 shares of Common Stock reported as beneficially owned by the Reporting Persons on this
statement, which are held directly by Glencore AG, to Glencore Investment Pty Ltd (Glencore
Investment), a wholly owned subsidiary of Glencore International.
Unless otherwise indicated herein, each capitalized term used but not defined herein shall
have the meaning assigned to such term in the original Schedule 13D, as amended through the date
hereof (the Schedule 13D).
Item 2. Identity and Background
Item 2 of the Schedule 13D is hereby amended and restated to read in its entirety as follows:
(a) (c) and (f) This statement on Schedule 13D is being filed by Glencore AG, Glencore
Investment, Glencore Investments AG (Glencore Investments AG), Glencore International and
Glencore Holding (collectively, the Reporting Persons). Each of Glencore AG, Glencore
Investments AG, Glencore International and Glencore Holding is a company organized under the laws
of Switzerland with a business address at Baarermattstrasse 3, CH-6341 Baar, Switzerland. Glencore
Investment is a company organized under the laws of Western Australia having a business address at
Level 4, 30 The Esplanade, Perth, 6000, Australia. Glencore Holding is the parent company of
Glencore International which, together with its subsidiaries, including Glencore AG, Glencore
Investments AG and Glencore Investment, is a leading privately held, diversified natural resources
group. Each of the Reporting Persons other than Glencore Holding is a direct or indirect
wholly-owned subsidiary of Glencore Holding. The name, address, citizenship and present principal
occupation or employment of each of the directors and executive officers of each Reporting Person,
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 I 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.
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Item 4. Purpose of the Transaction
Item 4 of the Schedule 13D is hereby amended by adding the following at the end thereof:
Pursuant to a Stock Purchase Agreement, dated July 7, 2008 (the Stock Purchase
Agreement), by and between the Company and Glencore Investment, the Company issued and
Glencore Investment purchased, on July 8, 2008, 160,000 shares of the Companys newly created
Series A Convertible Preferred Stock (the Preferred Shares), for an aggregate purchase
price, payable in cash, of US$1,090,259,200. The Preferred Shares are convertible into
16,000,000 shares of Common Stock of the Company in certain circumstances (at a conversion ratio of
100 shares of Common Stock per Preferred Share, subject to customary adjustments). The Stock Purchase Agreement was entered into in
connection with a July 7, 2008 Termination Agreement between Glencore AGs United States branch,
Glencore Ltd. (Glencore Ltd.), and the Company (the Termination Agreement), by which they
terminated certain aluminum sales contracts for an aggregate cash out amount of US$1,820,456,792
payable by the Company to Glencore AG. The proceeds of the Stock Purchase Agreement were used by
the Company to fund a portion of the cash out amount. Copies of the Stock Purchase Agreement and
the Certificate of Designation for the Series A Preferred Stock, as well as a related Standstill
and Corporate Governance Agreement and Registration Rights Agreement and the Termination Agreement,
are filed herewith as Exhibits 2, 3, 4, 5 and 6, respectively, and are hereby incorporated herein
by reference. The agreements and the Certificate of Designation are summarized below in Item 6.
The Reporting Persons acquired the Preferred Shares for investment purposes.
The Reporting Persons plan to effect certain intercompany transfers within 60 days of the date
of this filing pursuant to which the 11,706,307 shares of Common Stock reported as beneficially
owned by the Reporting Persons on this statement, which are held directly by Glencore AG, will be
transferred to Glencore Investment. Following these transfers, Glencore AG will no longer
beneficially own any shares of Common Stock.
The Reporting Persons intend to hold the shares of the Companys Common Stock beneficially
owned by them for investment purposes. The Reporting Persons may acquire additional shares of
Common Stock upon the conversion of the Preferred Shares, as described in Item 6 below, or from
time to time in the open market or in privately-negotiated transactions, provided such acquisitions
are on terms deemed favorable by Reporting Persons. Alternatively, the Reporting Persons may, from
time to time, sell all or a portion of their Common Stock in open market or in privately-negotiated
transactions, provided such sales are on terms favorable to the Reporting Persons. Subject to the
foregoing, none of the Reporting Persons has any present plan or proposal which relates to or would
result in any of the actions or events enumerated in clauses (a) through (j) of Item 4 of Schedule
13D.
Item 5. Interest in Securities of the Issuer
Item 5 of the Schedule 13D is hereby amended and restated to read in its entirety as follows:
(a) The Reporting Persons beneficially own 11,706,307 shares of Common Stock, or 28.5% of the
Companys outstanding Common Stock. The shares reported as beneficially owned by the Reporting
Persons do not include the 16,000,000 shares of Common Stock issuable upon conversion of the
Preferred Shares, which are convertible only (i) upon the occurrence of events that have not
transpired and that are outside of the control of the Reporting Persons, or (ii) in
8
circumstances that would not result in an increase in the percentage of shares of Common Stock
beneficially owned by the Reporting Persons. The aggregate number and percentage of shares of
Common Stock beneficially owned by each person (other than the Reporting Persons) named in Item 2
is set forth opposite his name on Schedule I hereto. The beneficial ownership
percentages set forth herein and on Schedule I hereto are based on the 41,134,927 shares of
Common Stock reported as outstanding as of April 30, 2008 in the Companys Form 10-Q filed with the
Securities and Exchange Commission on May 12, 2008.
(b) The Reporting Persons share the power to vote or to direct the vote and dispose or to
direct the disposition of 11,706,307 shares of Common Stock. To the best knowledge of the
Reporting Persons, each person (other than the Reporting Persons) named in Item 2 has the sole
power to vote or to direct the vote and dispose or to direct the disposition of the number of
shares of Common Stock set forth opposite his name on Schedule I hereto.
(c) During the past 60 days, the persons identified in Item 2 effected the following
transactions in Company Common Stock:
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Nature of |
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Date of |
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Number of |
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Transaction Party |
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Transaction |
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Transaction |
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Shares |
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Price per Share |
Willy R. Strothotte (1)
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Sale (1)
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6/9/2008
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1,500
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$16.72 |
Willy R. Strothotte
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Stock Grant
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6/25/2008
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1,047
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$0.00 |
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(1) |
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Represents the sale to and purchase by Glencore AG of Common Stock issued to Mr. Willy R. Strothotte upon the exercise
of non-employee director stock options awarded to Mr. Strothotte in connection with his service
as a director of the Company. |
To the best knowledge of the Reporting Persons, except for the foregoing, there have been no
transactions in Common Stock by the Reporting Persons or any other person named in Item 2 during
the past sixty days.
(d) None.
(e) Upon consummation of the planned intercompany transfer to Glencore Investment of the
11,706,307 shares of Common Stock reported as beneficially owned by the Reporting Persons on this
statement, which are held directly by Glencore AG, Glencore AG will no longer beneficially own any
shares of Common Stock.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
The following represents a summary of the agreements and instruments relating to the purchase
of the Preferred Shares described in Item 4 above:
Stock Purchase Agreement: On July 7, 2008, the Company entered into the Stock Purchase
Agreement with Glencore Investment which provided for the sale and purchase of Preferred Shares
described in Item 4 above. The Stock Purchase Agreement contains customary representations and
warranties given by each of the Company and Glencore Investment.
Certificate of Designation: The rights and privileges of the Series A Preferred Stock
are set forth in a Certificate of Designation filed with the Secretary of State of the State of
Delaware on July 7, 2008 (the Certificate of Designation). The following summarizes the
material terms of the Series A Preferred Stock, as reflected in the Certificate of Designation:
9
Dividends. Dividends will be declared and paid on the Series A Preferred Stock when, as and
if, and in the same amounts (on an as-converted basis), declared and paid on the Common Stock.
Voting. The Series A Preferred Stock has no voting rights, except to vote as a separate class
on any proposal to or that would amend, alter or repeal or otherwise change any provision of the
Companys Certificate of Incorporation or the Certificate of Designation if such amendment would
increase or decrease the number of authorized shares of Series A Preferred Stock, increase or
decrease the par value of the Series A Preferred Stock or alter or change the powers, preferences
or special rights of the shares of the Series A Preferred Stock.
Liquidation Preference. Upon liquidation, dissolution or winding up of the Company, holders
of Series A Preferred Stock are entitled to a liquidation preference of $0.01 per share, and
thereafter are entitled to share ratably (on an as-converted basis) with the Common Stock in the
distribution of any remaining assets (net of an amount equivalent to
the aggregate amount of the liquidation preference).
Automatic Conversion. The Series A Preferred Stock shall be automatically converted into
shares of Common Stock at a conversion ratio of 100 shares of Common Stock for each share of Series
A Preferred Stock (the Conversion Ratio) upon the occurrence of the following events: (i)
any event that would dilute the Reporting Persons percentage ownership of Common Stock, to the
extent necessary to maintain the same percentage ownership as immediately prior to the diluting
event; (ii) the sale or other transfer of Series A Preferred Stock to non-affiliates of the
Reporting Persons, and (iii) upon the consummation of any merger or business combination
transaction involving the Company or the sale of all or substantially all of the property or assets
of the Company and its subsidiaries, unless the consideration in the transaction is other than cash
or marketable securities and the Reporting Persons have voted their Common Stock against the
transaction (in which case, the Series A Preferred Stock will be redeemed as described below).
Optional Conversion. At the option of each holder, the Series A Preferred Stock may be
converted into Common Stock at the Conversion Ratio and tendered into a tender or exchange offer
in which a majority of the outstanding shares of the Companys
Common Stock have been tendered.
Mandatory Redemption. If (i) the Company proposes (x) to engage in a merger or business
combination transaction involving the Company or to sell all or substantially all of the property
or assets of the Company and its subsidiaries in a transaction where the consideration payable to
the holders of Common Stock is other than cash, marketable securities or shares of the Companys
subsidiaries, or (y) to dissolve and wind up (other than as part of a transaction contemplated by
(x)) and assets other than cash, marketable securities or shares of the Companys subsidiaries will
be distributed to the Companys stockholders, and (ii) the Reporting Persons vote any and all of
their Common Stock against the proposal, the Company must redeem all of the Series A Preferred
Stock at a redemption price equivalent to the average of the closing price for the Companys Common
Stock on Nasdaq for twenty (20) trading days starting twenty-two (22) trading days before the first
public announcement of the Companys proposal.
Preemptive Rights. If the Company proposes to issue or sell, in a transaction directed to
holders of Common Stock, any Common Stock or other stock ranking on parity with the Common Stock
(or any securities convertible or exchangeable for, or any options, warrants or
10
other rights to subscribe for, such stock) (but excluding issuances to employees and issuances
triggered under a stockholders rights plan by acquisitions by the Reporting Persons) at a price
below the average of the closing price for the Companys Common Stock on Nasdaq for twenty (20)
trading days starting twenty-two (22) trading days before the Companys board of directors
authorizes such issuance or sale, the holders of Series A Preferred Stock must be given the
opportunity to participate in such issuance on an as-converted basis.
Transfer Restrictions. Except for transfers to pledgees (subject to certain conditions), the
Series A Preferred Stock may be transferred only in widely-distributed public offerings or in
transactions that comply with Rule 144 under the Securities Act of 1933, as amended, and following
any such transfer, will automatically convert to Common Stock.
Standstill and Governance Agreement: In connection with the Stock Purchase Agreement,
on July 7, 2008 Glencore AG and the Company entered into a Standstill and Governance Agreement (the
Standstill Agreement). The following is a summary of the material terms of the
Standstill Agreement:
Standstill. Glencore AG has agreed that (i) during the first nine months after July
7, 2008, it (and its affiliates) will not acquire any capital stock
of the Company (or rights to
capital stock) if the acquisition would increase their aggregate beneficial ownership to more than
28.5% of the Companys issued and outstanding Common Stock, and (ii) during the second nine-month
period after July 7, 2008, it (and its affiliates) will not acquire any capital stock of the
Company (or rights to capital stock) if the acquisition would increase their aggregate beneficial
ownership to more than 49% of the Companys issued and outstanding Common Stock. In addition,
during the first nine months after July 7, 2008, the Reporting Persons and their affiliates will
not engage in, or seek to engage in, or induce, encourage, solicit or support any third party that
is engaging in or seeking to engage in, a proxy contest for the Company or any proposal,
transaction or other activities that would result in change of control of the Company. If a third
party makes an offer for the Company and the Companys board does not both recommend against the
offer and adopt a poison pill to block the offer, the standstill restrictions will be suspended in
order to permit the Reporting Persons to engage in a responsive transaction (subject to certain
restrictions). During the restricted 18-month period following July 7, 2008, the Reporting Persons
and their affiliates may make and consummate business combination proposals to and with the Company
only subject to certain conditions specified in the Standstill and Governance Agreement. If during
the nine-month period after July 7, 2008, the Company issues Common Stock in a widely distributed
public offering and the Reporting Persons are not afforded the opportunity to participate up to the
level required to maintain a 47% economic interest in the Company, the Reporting Persons will be
entitled to acquire shares of Common Stock in open market purchases in order to maintain the 47%
economic interest. The Reporting Persons will not be entitled to vote a number of shares of Common
Stock equivalent to the number of shares so acquired.
Voting and Quorum Agreement. During the first nine months following July 8, 2008, (i) the
Reporting Persons must cause their shares of Common Stock to be represented at each meeting of the
stockholders at which directors are to be elected, to the extent necessary to form a quorum; and
(ii) if the Reporting Persons elect to vote (or consent with respect to) their Common Stock in such
election, such Common Stock must be voted (or consent given) in the same proportion as the voting
securities held by other stockholders of the Company.
Board Representation. The Reporting Persons will have the right to designate a nominee for
election to the board of directors of the Company, subject to the consent of the
11
nominating committee. This right will terminate if the Reporting Persons (and their
affiliates) beneficially own less than 10% of the Companys Common Stock for a period of three
continuous months.
Early Termination of the Standstill and Voting Agreement. The standstill restrictions and the
voting and quorum agreements will terminate prior to the stated terms thereof if any of the
following occurs: (i) the Reporting Persons (and their affiliates) beneficially own less than 10%
of the Companys Common Stock for a period of three continuous months, (ii) the consummation of a
permitted business combination transaction involving the Reporting Persons or a change of control
transaction with a third party, and (iii) if a third party acquires beneficial ownership of 20% or
more of the outstanding voting securities of the Company and the Company fails to adopt a poison
pill to block further acquisitions by such third party.
Registration Right Agreement: On July 7, 2008, Glencore Investment and the Company
entered into a Registration Rights Agreement, containing customary terms and conditions (the
Registration Rights Agreement), pursuant to which the Company has agreed to register the
Preferred Shares for resale by the Reporting Persons and their affiliates and any of their
respective pledgees. Sales under the Registration Rights Agreement must be made in open market
transactions that comply with Rule 144 under the Securities Act of 1933, as amended, or in widely
distributed public offerings. The Reporting Persons, their affiliates and any of their respective
pledgees are entitled to demand up to six registrations from and after November 5, 2008 and subject
to certain customary restrictions, may at any time participate in registered offerings initiated by
the Company for its own account or the account of other stockholders. Under the Certificate of
Designation, Preferred Shares sold under the Registration Rights Agreement will automatically
convert to shares of Common Stock upon such sale. Subject to the restriction on the number of
demand registrations, the registration rights will continue until the Common Stock issued upon
conversion of the Preferred Shares are sold under an effective registration statement or the
Preferred Shares are no longer outstanding. The Company will be responsible for all fees and
expenses relating to any registration of the Preferred Shares, except that the Reporting Persons
will be responsible for any underwriters commissions and any fees and expenses of their legal
counsel and any other advisors retained by them (including underwriters counsel in the case of
demand registrations).
Termination Agreement: Contemporaneously with the execution and delivery of the Stock
Purchase Agreement on July 7, 2008, Glencore Ltd. and the Company entered into a Termination
Agreement pursuant to which they agreed to terminate certain aluminum sales contracts, for an
aggregate cash-out amount of US$$1,820,456,792, payable by the Company to Glencore Ltd.
US$1,315,259,200 of the cash-out payment (including US$1,090,259,200 funded from the proceeds under
the Stock Purchase Agreement) was paid on signing of the Termination Agreement, and the remaining
US$505,197,592 is payable on August 31, 2008, if not paid on
that date, the deferred amount becomes payable in installments of a minimum of US$25 million commencing September 1,
2008 and continuing until no later than December 31, 2009. Interest accrues on the deferred amount
at the rate of Libor plus a margin of 250 basis points per annum, and is payable monthly in arrears,
commencing August 1, 2008. The deferred amount must be prepaid to the extent the Company receives
net proceeds of any securities issuances (other than certain exempt issuances). The outstanding
settlement amount under the sales contracts for June 2008 will be paid on July 15, 2008 in
accordance with the sales contracts.
The foregoing descriptions of the Stock Purchase Agreement (including the description in Item
4), Certificate of Designation, Standstill Agreement, Registration Rights Agreement and Termination
Agreement are subject to, and qualified in their entirety by reference to the full text
12
of such
documents and agreements, which are filed herewith as Exhibits 2, 3, 4, 5
and 6, respectively, and are hereby incorporated herein by reference.
The Reporting Persons plan to effect certain intercompany transfers within 60 days of the date
of this filing pursuant to which the 11,706,307 shares of Common Stock which are held directly by
Glencore AG will be transferred to Glencore Investment.
Except for terms of the Certificate of Designation and the agreements described above in this
Item 6, 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 the transfer or voting of any securities of the Company, finders 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
The following exhibits are filed herewith:
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Exhibit 1.
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Joint Filing Agreement (filed herewith)
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Exhibit 2.
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Certificate of Designation of the Preferred Stock
(Incorporated by reference to Exhibit 3.1 to the Companys
Current Report on Form 8-K filed with the Securities and
Exchange Commission on July 8, 2008)
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Exhibit 3.
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Stock Purchase Agreement (Incorporated by reference
to Exhibit 10.2 to the Companys Current Report on Form 8-K
filed with the Securities and Exchange Commission on July 8,
2008)
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Exhibit 4.
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Standstill and Governance Agreement (Incorporated
by reference to Exhibit 10.3 to the Companys Current Report
on Form 8-K filed with the Securities and Exchange Commission
on July 8, 2008) |
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Exhibit 5.
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Registration Rights Agreement (Incorporated by
reference to Exhibit 10.4 to the Companys Current Report on
Form 8-K filed with the Securities and Exchange Commission on
July 8, 2008)
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Exhibit 6.
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Termination Agreement (Incorporated by reference to
Exhibit 10.1 to the Companys Current Report on Form 8-K filed
with the Securities and Exchange Commission on July 8, 2008)
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13
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: July 8, 2008
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Glencore Investment Pty Ltd
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By: |
/s/ Eric Diedrichsen
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Name: |
Eric Diedrichsen |
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Title: |
Director |
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By: |
/s/ Marc Ocksay
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Name: |
Marc Ocksay |
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Title: |
Director |
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Glencore Investments AG
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By: |
/s/ Andreas Hubmann
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Name: |
Andreas Hubmann |
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Title: |
Director |
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By: |
/s/ Steven Kalmin
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Name: |
Steven Kalmin |
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Title: |
Director |
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Glencore AG
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By: |
/s/ Stefan Peter
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Name: |
Stefan Peter |
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Title: |
Officer |
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By: |
/s/ Andreas Hubmann
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Name: |
Andreas Hubmann |
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Title: |
Director |
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Glencore International AG
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By: |
/s/ Lotti Grenacher Hagmann
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Name: |
Lotti Grenacher Hagmann |
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Title: |
Officer |
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By: |
/s/ Andreas Hubmann
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Name: |
Andreas Hubmann |
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Title: |
Officer |
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14
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Glencore Holding AG
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By: |
/s/ Willy R. Strothotte
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Name: |
Willy R. Strothotte |
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Title: |
Chairman |
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By: |
/s/ Andreas Hubmann
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Name: |
Andreas Hubmann |
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Title: |
Director |
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15
SCHEDULE I
Set forth below are the names, business addresses and present principal occupations of the
directors and executive officers of Glencore Investment Pty Ltd, Glencore Investments AG, Glencore
AG, Glencore International AG and Glencore Holding AG. The executive officers of each of Glencore
Investment Pty Ltd, Glencore Investments AG, Glencore AG, Glencore Holding AG and Glencore
International AG are the same persons listed as directors of such company. Unless otherwise
indicated, the present principal occupation of each person is with Glencore International AG. If
no business address is given, the 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 Investment Pty Ltd
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Name |
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Principal Occupation |
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Business address |
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Share Ownership |
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Steven N. Isaacs |
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Chairman and Managing Director of Glencore Finance AG |
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Richard James Marshall |
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In-house Counsel of Glencore International AG |
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Eric Diedrichsen |
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Employee of Glencore International
AG Accounting |
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Marc Ocksay |
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Employee of Glencore International AG Finance |
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Ross Lind |
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Employee of Glencore Investment Pty Ltd
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Level 4, 30 The Esplanade, Perth, 6000, Australia |
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Ron Hing |
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Employee of Glencore Australia Pty Ltd
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Level 4, 30 The Esplanade, Perth, 6000, Australia |
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16
Directors of Glencore Investments AG
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Name |
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Principal Occupation |
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Business address |
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Share Ownership |
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Willy R. Strothotte
(Citizen of Germany)
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Chairman
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23,547 shares of
Common Stock (which
includes 22,500
shares which are
subject to options
presently
exercisable or
exercisable within
60 days and 1,047
shares which are
subject to vesting
in one year or
earlier termination
of service as a
Company director
due to death or
disability)
representing .057%
of the Companys
outstanding Common
Stock. |
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Steven F. Kalmin
(Citizen of Australia)
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Officer of Glencore
International AG
Accounting |
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Andreas P. Hubmann
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Officer of Glencore
International AG
Accounting |
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Directors of Glencore AG:
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Name |
|
Principal Occupation |
|
Business address |
|
Share Ownership |
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|
|
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Willy R. Strothotte
(Citizen of Germany)
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Chairman
|
|
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23,547 shares of
Common Stock (which
includes 22,500
shares which are
subject to options
presently
exercisable or
exercisable within
60 days and 1,047
shares which are
subject to vesting
in one year or
earlier termination
of service as a
Company director
due to death or
disability)
representing .057%
of the Companys
outstanding Common
Stock. |
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Ivan Glasenberg
(Citizen of Australia)
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Chief Executive Officer |
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17
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Name |
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Principal Occupation |
|
Business address |
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Share Ownership |
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|
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Andreas P. Hubmann
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Officer of Glencore
International AG
Accounting |
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Steven F. Kalmin
(Citizen of Australia)
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Officer of Glencore
International AG
Accounting |
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Zbynek E. Zak
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Non-Executive
Director, former
CFO of Glencore
International AG
(retired)
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Buetzenweg 16 CH-6300 Zug Switzerland |
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Directors of Glencore International AG:
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Name |
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Principal Occupation |
|
Business address |
|
Share Ownership |
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|
|
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Willy R. Strothotte
(Citizen of Germany)
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|
Chairman
|
|
|
|
23,547 shares of
Common Stock (which
includes 22,500
shares which are
subject to options
presently
exercisable or
exercisable within
60 days and 1,047
shares which are
subject to vesting
in one year or
earlier termination
of service as a
Company director
due to death or
disability)
representing .057%
of the Companys
outstanding Common
Stock. |
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Ivan Glasenberg
(Citizen of Australia)
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Chief Executive Officer |
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Zbynek E. Zak
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Non-Executive
Director, former
CFO of Glencore
International AG
(retired)
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Buetzenweg 16
CH-6300 Zug
Switzerland |
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Peter A. Pestalozzi
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Attorney, Pestalozzi
Lachenal Patry
Zurich Ltd.
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Loewenstrasse 1
CH-8001 Zurich
Switzerland |
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Craig A. Davis
(Citizen of the US)
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Non-Executive
Director, former
Chairman and CEO of
Century Aluminum
Company (retired)
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457 shares of
Common Stock. |
18
Directors of Glencore Holding AG:
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|
|
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Name |
|
Principal Occupation |
|
Business Address |
|
Share Ownership |
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|
|
|
|
|
Willy R. Strothotte
(Citizen of Germany)
|
|
Chairman
|
|
|
|
23,547 shares of
Common Stock (which
includes 22,500
shares which are
subject to options
presently
exercisable or
exercisable within
60 days and 1,047
shares which are
subject to vesting
in one year or
earlier termination
of service as a
Company director
due to death or
disability)
representing .057%
of the Companys
outstanding Common
Stock. |
|
|
|
|
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|
|
Ivan Glasenberg
(Citizen of Australia)
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|
Chief Executive Officer |
|
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|
|
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|
|
Zbynek E. Zak
|
|
Non-Executive
Director, former
CFO of Glencore
International AG
(retired)
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Buetzenweg 16
CH-6300 Zug
Switzerland |
|
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Peter A. Pestalozzi |
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Attorney, Pestalozzi
Lachenal Patry
Zurich Ltd.
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Loewenstrasse 1
CH-8001 Zurich
Switzerland |
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Craig A. Davis
(Citizen of the US)
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|
Non-Executive
Director, former
Chairman and CEO of
Century Aluminum
Company (retired)
|
|
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|
457 shares of
Common Stock. |
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|
Andreas P. Hubmann
|
|
Officer of Glencore
International AG
Accounting |
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19
Exhibit Index:
|
|
|
Exhibit 1.
|
|
Joint Filing Agreement (filed
herewith) |
|
|
|
Exhibit 2.
|
|
Certificate of Designation of the
Preferred Stock (Incorporated by reference to Exhibit 3.1 to the
Companys Current Report on Form 8-K filed with the Securities and
Exchange Commission on July 8, 2008) |
|
|
|
Exhibit 3.
|
|
Stock Purchase Agreement
(Incorporated by reference to Exhibit 10.2 to the Companys
Current Report on Form 8-K filed with the Securities and
Exchange Commission on July 8, 2008) |
|
|
|
Exhibit 4.
|
|
Standstill and Governance Agreement
(Incorporated by reference to Exhibit 10.3 to the Companys
Current Report on Form 8-K filed with the Securities and
Exchange Commission on July 8, 2008) |
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|
|
Exhibit 5.
|
|
Registration Rights Agreement
(Incorporated by reference to Exhibit 10.4 to the Companys
Current Report on Form 8-K filed with the Securities and
Exchange Commission on July 8, 2008) |
|
|
|
Exhibit 6.
|
|
Termination Agreement (Incorporated
by reference to Exhibit 10.1 to the Companys
Current Report on Form 8-K filed with the Securities and
Exchange Commission on July 8, 2008) |
22