Explanatory
Note:
This
Amendment No. 8 ("Amendment No. 8") to the statement on Schedule 13D originally
filed with the Securities and Exchange Commission by Glencore AG, Glencore
International AG and Glencore Holding AG on April 12, 2001, and amended on May
25, 2004, November 27, 2007, July 8, 2008, July 21, 2008, January 28, 2009,
February 4, 2009, and May 4, 2009 (as so amended, the "Schedule 13D"), relating
to the common stock, par value $0.01 per share ("Common Stock"), of Century
Aluminum Company (the "Company"), amends and restates the Schedule
13D. This Amendment No. 8 reflects changes to Items 2, 3, 4, 5 and 6
of the Schedule 13D.
Item
1. Security and Issuer
This
statement on Schedule 13D relates to the common stock, par value $0.01 per
share, of Century Aluminum Company, a Delaware corporation.
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 International
AG ("Glencore International"), Glencore Holding AG ("Glencore Holding") and
Glencore AG ("Glencore AG" and together with Glencore International and Glencore
Holding, the "Reporting Persons"). Each of Glencore International,
Glencore Holding and Glencore AG is a company organized under the laws of
Switzerland with a business address at Baarermattstrasse 3, CH-6341 Baar,
Switzerland. Glencore Holding is the controlling shareholder of
Glencore International which, together with its subsidiaries, including Glencore
AG, is a leading privately held, diversified natural resources
group. Glencore AG is a direct wholly-owned subsidiary of Glencore
International. 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 1 hereto, which Schedule 1 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 1 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 1 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
Since the
Company's initial public offering of Common Stock and the registration of the
Common Stock under Section 12 of the Securities Exchange Act of 1934, as
amended, in April 1996, the Reporting Persons have purchased an aggregate of
19,174,968 additional shares of Common Stock (not including shares of Common
Stock issued or issuable upon conversion of preferred stock owned by the
Reporting Persons or pursuant to options or other compensatory grants issued to
Mr. Willy R. Strothotte, a director of the Company, who holds such options or
other grants as nominee for the Reporting Persons) in registered public
offerings by the Company and in open market transactions, 500,000 shares of
Cumulative Convertible Preferred Stock, par value $0.01 per share, from the
Company in a private transaction in April 2001 (all of which were converted into
1,395,089 shares of Common Stock in May 2004), and 160,000 shares of Series A
Preferred Stock, par value $0.01 per share (the "Preferred Shares") from the
Company in a private transaction in July 2008 (of which 76,548.08 shares have
since been converted into 7,654,808 shares of Common Stock).
The
consideration paid by the Reporting Persons for the 19,174,968 shares of Common
Stock, the 500,000 shares of Cumulative Convertible Preferred Stock and the
160,000 shares of Series A Preferred Stock was $354,954,264, $25,000,000 and
$1,090,259,200, respectively, in cash, all of which was obtained from the
Reporting Persons' internal working capital.
Item
4. Purpose of the Transaction
Since the
Company's initial public offering, in which the Reporting Persons sold
approximately 60% of their Common Stock of the Company, the Reporting Persons
have held the Company's Common Stock, and have acquired additional securities of
the Company, for investment purposes.
The
Reporting Persons are engaged in discussions with the Company regarding the
composition of and the Reporting Persons' representation on the Company's board
of directors. These discussions may or may not continue following the
date of this Amendment No. 8 and there can be no assurance as to what will be
the results, if any, of these discussions.
In
addition to the foregoing, the Reporting Persons may hold discussions with the
Company's management and board of directors and other parties, including but not
limited to other stockholders and third parties, or otherwise consider actions
which could include discussions or actions that result in the occurrence of one
or more of the actions or events described in clauses (a) through (j) of Item 4
of Schedule 13D. The Reporting Persons' consideration or discussion
of any action would be based on their own assessment of various relevant
considerations and any subsequent developments affecting the Company and its
prospects.
The
Reporting Persons are party to a Standstill and Governance Agreement with the
Company. Reference is made to the discussion of the Standstill and
Governance Agreement in Item 6 below.
Item
5. Interest in Securities of the Issuer
(a) The
Reporting Persons beneficially own 36,173,412 shares of Common Stock, or 39.08%
of the Company's outstanding Common Stock. The shares of Common Stock
beneficially owned by the Reporting Persons (other than shares subject to
options issued to Mr. Strothotte as further described below) are held directly
by Glencore AG. The shares reported as beneficially owned by the
Reporting Persons: (i) do not include the 8,345,192 shares of Common Stock
issuable upon conversion of the 83,451.92 shares of the Company's Series A
Preferred Stock, par value $0.01 per share ("Series A Preferred Stock") held
directly by Glencore AG that are convertible only (a) upon the occurrence of
events that have not transpired, or (b) in circumstances that would not result
in an increase in the percentage of shares of Common Stock beneficially owned by
the Reporting Persons, and (ii) include 21,000 shares subject to presently
exercisable options held directly by Mr. Willy R. Strothotte, who holds such
options as nominee for the Reporting Persons. The aggregate number
and percentage of shares of Common Stock beneficially owned by each person
(other than the Reporting Persons) listed in Schedule 1 hereto is set forth
opposite his or her name on Schedule 1 hereto. The beneficial
ownership percentages reported herein are based upon (i) the 92,530,068 shares
of Common Stock outstanding as of December 31, 2009, as reported in the
Company's 10-K, filed on March 17, 2010, plus (ii) 21,000 shares which are
subject to presently exercisable options which are held directly by Mr.
Strothotte as nominee for the Reporting Persons. Reference is made to
the discussion of the terms of the Certificate of Designation for the Series A
Preferred Stock in Item 6 below.
(b) The
Reporting Persons share the power to vote or to direct the vote and dispose or
to direct the disposition of 36,173,412 shares of Common Stock. To
the best knowledge of the Reporting Persons, each person (other than the
Reporting Persons and any person holding shares as nominee for the Reporting
Persons) named in Item 2 has the sole power to vote or to direct the vote and
dispose or to direct the disposition of the number of shares of Common Stock set
forth opposite his or her name on Schedule 1 hereto.
(c) None
of the Reporting Persons nor, to their knowledge, any of the persons named in
Item 2 have engaged in any transaction in Common Stock during the sixty days
immediately preceding the date hereof.
(d) None.
(e) Not
applicable.
Item
6. Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of the Issuer
On July
7, 2008 the Company entered into a Stock Purchase Agreement with Glencore
Investment Pty (“Glencore Investment Pty”) pursuant to which Glencore Investment
Pty purchased the Preferred Shares. The following represents a
summary of the terms of the agreements and instruments relating to the July 7,
2008 purchase of the Preferred Shares that remain in effect:
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:
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 Company's 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 Company's 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 Company's 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 Company's
subsidiaries will be distributed to the Company's 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 Company's Common
Stock on Nasdaq for twenty (20) trading days starting twenty-two (22) trading
days before the first public announcement of the Company's
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 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 Company's Common Stock on Nasdaq for twenty (20) trading
days starting twenty-two (22) trading days before the Company's 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 "Governance Agreement"). Certain
standstill obligations of Glencore AG and its affiliates under the Governance
Agreement expired on each of April 8, 2009 and January 7, 2010. No
standstill obligations under the Governance Agreement are currently binding on
Glencore AG or any of its affiliates. The following is a summary of
the material terms of the Governance Agreement that remain in effect
today:
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 nominating
committee. This right will terminate if the Reporting Persons (and
their affiliates) beneficially own less than 10% of the Company's Common Stock
for a period of three continuous months.
Registration
Rights Agreement: On July 7, 2008, Glencore Investment Pty 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).
The
foregoing descriptions of the Certificate of Designation, Governance Agreement
and Registration Rights Agreement are subject to, and qualified in their
entirety by reference to the full text of such documents and agreements, which
were previously filed with the Commission as exhibits to the Schedule 13D, and
are hereby incorporated herein by reference.
The
Company disclosed in its notice of annual meeting of stockholders held on May
27, 2009 and related proxy statement a management proposal to amend the
Company's Restated Certificate of Incorporation to increase the number of
authorized shares of the Company's Common Stock. Following filing of
the proxy statement, the Reporting Persons and the Company engaged in
discussions relating to the proposed increase in the Company's authorized
capital. The Company determined to amend the proposal to provide for
an increase in the number of authorized shares of Common Stock from 100,000,000
to 195,000,000, and on May 4, 2009, the Company and the Reporting Persons
entered into a Support Agreement (the "Support Agreement") whereby (a) the
Reporting Persons agreed to vote for the amended proposal to increase authorized
capital and the other matters being proposed by the Company for approval at the
May 27, 2009 stockholders meeting, and (b) except for certain limited and
strategic transactions and other customary exceptions, the Company agreed to
give the Reporting Persons the right to maintain their equity percentage
ownership in the Company by purchasing (i) their pro rata portion of additional
shares of Common Stock and other securities or interests convertible into or
exchangeable or exercisable for Common Stock (including cash settled
derivatives) issued by the Company and its affiliates in cash offerings and (ii)
additional shares of Common Stock and other securities or interests convertible
into or exchangeable or exercisable for Common Stock (including cash settled
derivatives) issued by the Company and its affiliates in any debt exchange
offers if and to the extent the aggregate cumulative number of shares of Common
Stock or their equivalent issued in debt exchanges in any twelve month period
prior to November 4, 2010 would equal or exceed 30 million
shares. The right to acquire securities will terminate if the
Reporting Persons beneficially own less than 10% of the Company's Common Stock
for a period of three continuous months. The foregoing description is
subject to, and qualified in its entirety by reference to the full text of the
Support Agreement which was previously filed with the Commission as an exhibit
to the Schedule 13D and is incorporated herein by reference.
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 exists 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, 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.
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Joint
Filing Agreement (filed herewith)
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2.
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Certificate
of Designation of the Preferred Stock (Incorporated by reference to
Exhibit 3.1 to the Company's Current Report on Form 8-K filed with the
Securities and Exchange Commission on July 8,
2008)
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3.
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Standstill
and Governance Agreement (Incorporated by reference to Exhibit 10.3 to the
Company's Current Report on Form 8-K filed with the Securities and
Exchange Commission on July 8,
2008)
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4.
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Registration
Rights Agreement (Incorporated by reference to Exhibit 10.4 to the
Company's Current Report on Form 8-K filed with the Securities and
Exchange Commission on July 8,
2008)
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5.
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Support
Agreement (Incorporated by reference to Exhibit 10.01 to the Company's
Current Report on Form 8-K filed with the Securities and Exchange
Commission on May 4, 2009)
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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: March
22, 2010
Glencore
International AG
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By:
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/s/ Richard J. Marshall
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/s/ Stefan Peter
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Name:
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Richard
J. Marshall
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Stefan
Peter
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Title:
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Officer
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Officer
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Glencore
Holding AG
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By:
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/s/ Andreas P. Hubmann
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/s/ Ivan Glasenberg
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Name:
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Andreas
P. Hubmann
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Ivan
Glasenberg
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Title:
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Director
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Director
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Glencore
AG
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By:
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/s/ Aristotelis Mistakidis
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/s/ Richard J. Marshall
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Name:
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Aristotelis
Mistakidis
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Richard
J. Marshall
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Title:
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Director
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Officer
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SCHEDULE
1
Set forth
below are the names, business addresses and present principal occupations of the
directors and executive officers of Glencore International AG, Glencore Holding
AG and Glencore AG. The executive officers of each of Glencore
International AG, Glencore Holding AG and Glencore 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 Holding AG:
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Willy
R. Strothotte
(Citizen
of Germany)
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Chairman
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21,000
shares of Common Stock (representing
21,000 shares which are subject to options presently
exercisable). (1)
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Ivan
Glasenberg
(Citizen
of Australia)
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Chief
Executive Officer
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Andreas
P. Hubmann
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Officer
of Glencore
International
AG –Accounting
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Peter
A. Pestalozzi
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Attorney,
Pestalozzi Lachenal
Patry
Zurich Ltd.
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Lowenstrasse
1
CH-8001
Zurich
Switzerland
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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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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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Directors
of Glencore International AG:
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Willy
R. Strothotte
(Citizen
of Germany)
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Chairman
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21,000
shares of Common Stock (representing
21,000 shares which
are subject to options presently
exercisable). (1)
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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
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Directors
of Glencore AG:
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Willy
R. Strothotte
(Citizen
of Germany)
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Chairman
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21,000
shares of Common Stock (representing 21,000 shares which are subject to
options presently exercisable). (1)
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Ivan
Glasenberg
(Citizen
of Australia)
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Chief
Executive Officer
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Steven
F. Kalmin
(Citizen
of Australia)
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Chief
Financial Officer
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Andreas
P. Hubmann
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Officer
of Glencore International AG –Accounting
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Aristotelis
Mistakidis
(Citizen
of the United
Kingdom)
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Glencore
International AG – Head Zinc Copper
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(1)
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Represents
shares underlying options that were issued to Mr. Willy R. Strothotte in
connection with his service as a director of the Company. Mr. Strothotte
holds such options as nominee for the Reporting Persons and disclaims
beneficial ownership thereof, except to the extent of his pecuniary
interest therein.
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EXHIBIT
1
JOINT
FILING AGREEMENT
Each of
the undersigned hereby agrees that this Amendment No. 8 to the statement on
Schedule 13D is being filed with the Securities and Exchange Commission on
behalf of each of the undersigned pursuant to Rule 13d-1(k) under the Securities
Exchange Act of 1934, as amended.
Dated:
March 22, 2010
Glencore
International AG
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By:
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/s/ Richard J. Marshall
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/s/ Stefan Peter
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Name:
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Richard
J. Marshall
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Stefan
Peter
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Title:
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Officer
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Officer
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Glencore
Holding AG
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By:
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/s/ Andreas P. Hubmann
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/s/ Ivan Glasenberg
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Name:
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Andreas
P. Hubmann
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Ivan
Glasenberg
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Title:
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Director
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Director
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Glencore
AG
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By:
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/s/ Aristotelis Mistakidis
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/s/ Richard J. Marshall
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Name:
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Aristotelis
Mistakidis
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Richard
J. Marshall
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Title:
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Director
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Officer
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