EXHIBIT
7
EXECUTION
VERSION
MASTER
TERMS AND CONDITIONS FOR SWAP TRANSACTIONS BETWEEN
CITIGROUP
GLOBAL MARKETS INC. AND GLENCORE INTERNATIONAL AG
The
purpose of this Master Terms and Conditions for Swap Transactions (this “Master
Confirmation”), dated as of July 2, 2010, is to set forth certain terms
and conditions for swap transactions that Glencore International AG (“Counterparty”) may
enter into with Citigroup Global Markets Inc. (“Citi”). Each
such transaction (a “Transaction”) entered
into between Citi and Counterparty that is to be subject to this Master
Confirmation shall be evidenced by a written confirmation substantially in the
form of Exhibit A hereto, with such modifications thereto as to which
Counterparty and Citi mutually agree (a “Confirmation”), and
supplemented by a written pricing supplement substantially in the form of
Exhibit B hereto, which such modifications thereto as to which Counterparty and
Citi mutually agree (a “Pricing
Supplement”). This Master Confirmation, together with a
Confirmation and a Pricing Supplement for a Transaction, constitute a
“Confirmation” as referred to in the Agreement specified below.
1.
The definitions and
provisions contained in the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”)
and the 2000 ISDA Definitions (the “ISDA Definitions”
and, together with the Equity Definitions, the “Definitions”), each
as published by the International Swaps and Derivatives Association, Inc.
(“ISDA”), are
incorporated into this Master Confirmation. In the event of any
inconsistency between the Equity Definitions and the ISDA Definitions, the
Equity Definitions will control for the purpose of the Transaction to which a
Confirmation relates. In the event of any inconsistency between the Definitions
and this Master Confirmation, this Master Confirmation will control for the
purpose of the Transaction to which a Confirmation relates. In the event
of any inconsistency between the Definitions and this Master Confirmation, on
the one hand, and a Confirmation, on the other hand, the Confirmation will
govern. With respect to any Transaction, capitalized terms used herein
that are not otherwise defined shall have the meaning assigned to them in the
Confirmation relating to such Transaction.
2.
This Master Confirmation
and a Confirmation evidence a complete binding agreement between Counterparty
and Citi as to the terms of the Transaction to which this Master Confirmation
and such Confirmation relates. This Master Confirmation and each
Confirmation and Pricing Supplement hereunder shall supplement, form a part of,
and be subject to an agreement in the form of the 1992 ISDA Master Agreement
(Multicurrency—Cross Border), as if Counterparty and Citi had executed an
agreement in such form (with a Schedule that had the provisions in Section 7 of
this Master Confirmation) on the Trade Date of the first such Transaction
between Counterparty and Citi (the “Agreement”); provided that, the
provisions contained in Section 8 of this Master Confirmation, including the
provisions of the Form Credit Support Annex (as defined in Section 8 of this
Master Confirmation) incorporated therein, shall constitute a Credit Support
Document with respect to any Transaction arising hereunder for the purposes of
the Agreement. For the avoidance of doubt, the Transactions subject to
this Master Confirmation shall be the only Transactions under the
Agreement.
3.
Each Transaction to which
a Master Confirmation relates is a share swap transaction and shall be
considered a Share Swap Transaction for purposes of the Definitions, and shall
have the following terms:
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Trade
Date:
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For
any Transaction, a date specified as such in the relevant Confirmation for
such Transaction.
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Shares:
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Common
Stock, USD 0.01 par value per share (Symbol “CENX”), of Century Aluminum
Company (the “Issuer”).
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Exchange:
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NASDAQ
Global Select Market
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Related
Exchange(s):
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All
Exchanges
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Calculation
Agent:
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Citi.
Following any determination or calculation by the Calculation Agent
hereunder, upon a written request by Counterparty, the Calculation Agent
will provide to Counterparty by e-mail to the e-mail address provided by
Counterparty in such written request a report (in a commonly used file
format for the storage and manipulation of financial data) displaying in
reasonable detail the basis for such
calculation.
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Structuring
Fee Payment:
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With
respect to any Transaction, with respect to which the Hedging Period End
Date for such Transaction occurs prior to the Commitment Fee Payment Date,
on the first Scheduled Trading Day following the Hedging Period End Date
for such Transaction, Counterparty shall pay to Citi the Structuring Fee
for such Transaction.
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Structuring
Fee:
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For
any Transaction, an amount in USD, specified as such in the Pricing
Supplement for such Transaction and equal to the product of (i) ***%, (ii)
the Number of Shares for such Transaction and (iii) the Initial Price for
such Transaction.
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Commission
Payment:
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With
respect to any Transaction, on each of the first Scheduled Trading Day
following the Hedging Period End Date for such Transaction and the Cash
Settlement Payment Date for such Transaction, Counterparty shall pay to
Citi the Commission for such
Transaction.
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Commission:
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For
any Transaction, an amount specified as such in the Pricing Supplement for
such Transaction and equal to the product of (i) USD *** and (ii) the
Number of Shares for such
Transaction.
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Commitment
Fee Payment:
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With
respect to all Transactions contemplated under this Master Confirmation,
on the twelfth (12th)
Scheduled Trading Day following the first anniversary of the date of this
Master Confirmation (such Scheduled Trading Day, the “Commitment Fee Payment
Date”), Counterparty shall pay to Citi an amount in USD equal to
the Commitment Fee for such
Transactions.
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Commitment
Fee:
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For
all Transactions under this Master Confirmation, an amount in USD, equal
to the product of (i) ***%and (ii) the aggregate Equity Notional Amount
for all such Transactions, established by the parties pursuant to this
Master Confirmation and outstanding as of the Commitment Fee Payment
Date.
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Equity
Amount Payer:
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Citi
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Number
of Shares:
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For
any Transaction, a number of Shares specified as such in the Confirmation
for such Transaction; provided that,
if Citi fails to establish its initial hedge position with respect to such
Transaction during the relevant Hedging Period, the Calculation Agent
shall adjust the Number of Shares for such Transaction to reflect the
extent to which Citi has established such initial hedge position and shall
restate such Number of Shares in the Pricing Supplement for such
Transaction.
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Equity
Notional Amount:
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For
any Transaction, an amount specified in the Pricing Supplement for such
Transaction and equal to the product of (i) the Number of Shares for such
Transaction and (ii) the Initial Price for such
Transaction.
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Equity
Notional Reset:
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Not
Applicable
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Type
of Return: |
Total
Return |
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Initial
Price:
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For
any Transaction, an amount per Share specified in the Pricing Supplement
for such Transaction and, subject to adjustment pursuant to the provisions
of “Hedging and Valuation Disruption” below, equal to the sum of (i) the
arithmetic average of the Reference Prices for each Scheduled Trading Day
in the Hedging Period for such Transaction and (ii) if, and solely to the
extent that, the Hedging Period for such Transaction exceeds *** Scheduled
Trading Days, the funding cost for such Transaction, as determined by the
Calculation Agent, expressed as an amount per share, and incurred by Citi
as a result of such excess number of days during the Hedging Period with
respect to such Transaction.
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Reference
Price:
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For
any Transaction, with respect to any Scheduled Trading Day during the
Hedging Period for such Transaction or any Valuation Date for such
Transaction, a price per Share equal to
***.
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Hedging
Period:
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For
any Transaction, the period commencing on and including the Trade Date for
such Transaction and ending on and including the Hedging Period End Date
for such Transaction.
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Hedging
Period End Date:
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For
any Transaction, unless otherwise specified in the Confirmation for such
Transaction, the date that occurs ten (10) Scheduled Trading Days
immediately following the Trade Date for such
Transaction.
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Valuation
Time:
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For
any Transaction, the time determined in accordance with Section 6.1 of the
Equity Definitions.
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Valuation
Date(s):
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For
any Transaction, unless otherwise specified in the Confirmation for such
Transaction, the *** Scheduled Trading Days immediately preceding, and
including, the Termination Date for such Transaction (the period of such
days, the “Valuation
Period” for such Transaction); provided that,
if Citi determines, in its reasonable discretion, that as of the date ***
Scheduled Trading Days immediately preceding the Termination Date for such
Transaction, in light of existing liquidity conditions in the cash market
or any other market relevant to the unwind of Citi’s Hedge Positions
maintained in connection with such Transaction, the average daily trading
volume of the Shares is materially smaller than the average daily trading
volume during the Hedging Period for such Transaction, Citi shall extend
the Valuation Period for such Transaction in the manner that would result
in the number of Shares, with respect to which such Transaction is unwound
on any Valuation Date, to represent substantially the same average
percentage of the daily trading volume in the Shares as the average
percentage of the daily trading volume with respect to which Citi (or any
counterparty to a Hedge Position with Citi) established its Hedge
Positions for such Transaction during the Hedging Period for such
Transaction; provided, further that,
if as a result of any such extension, any Valuation Date for such
Transaction would occur on the same date as a “Valuation Date” for any
other Transaction under this Master Confirmation, such Valuation Date
shall be postponed until a Scheduled Trading Day that is not a Valuation
Date for any other Transaction under this Master
Confirmation.
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Termination
Date:
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For
any Transaction, a date specified as such in the Pricing Supplement for
such Transaction and occurring on the first Scheduled Trading Day
following the second anniversary of the Hedging Period End Date for such
Transaction; provided that
such date may be postponed with respect to any Transaction if the
Calculation Agent extends the Valuation Period of such Transaction
pursuant to the provisions of “Valuation Date(s)” above or pursuant to the
provisions of “Hedging and Valuation Disruption” below because any
Valuation Day during such Valuation Period is a Disrupted
Day.
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Final
Price:
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For
any Transaction, an amount per Share equal to the arithmetic average of
the Reference Prices for each Valuation Date for such
Transaction.
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Hedging
and Valuation Disruption:
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The
definition of “Market Disruption Event” in Section 6.3(a) of the Equity
Definitions is hereby amended by deleting the words “at any time during
the one-hour period that ends at the relevant Valuation Time, Latest
Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the
case may be” and inserting the words “at any time on any Scheduled Trading
Day during the Hedging Period or the Valuation Period” after the word
“material,” in the third line
thereof.
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Section
6.3(d) of the Equity Definitions is hereby amended by deleting the
remainder of the provision following the term “Scheduled Closing Time” in
the fourth line thereof.
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Notwithstanding
anything to the contrary in the Equity Definitions, to the extent that a
Disrupted Day occurs (i) during the Hedging Period or the Valuation Period
for any Transaction, the Calculation Agent may, in its good faith and
commercially reasonable discretion, extend such Hedging Period or such
Valuation Period (and postpone the Final Termination Date for such
Transaction) by one Scheduled Trading Day for each such Disrupted Day, and
(ii) if any such Disrupted Day is a Disrupted Day because of a Market
Disruption Event (or a deemed Market Disruption Event as provided herein),
the Calculation Agent shall determine whether (A) such Disrupted Day is a
Disrupted Day in full, in which case the Reference Price for such
Disrupted Day shall not be used for purposes of determining the Initial
Price or the Final Price, as the case may be, or (B) such Disrupted Day is
a Disrupted Day only in part, in which case, the Reference Price for such
Disrupted Day shall be determined by the Calculation Agent based on any
transactions effected in the Shares on such Disrupted Day effected before
the relevant Market Disruption Event occurred and/or after the relevant
Market Disruption Event ended, and the weighting of the Reference Price
for such Disrupted Day used by the Calculation Agent for purposes of
determining the Initial Price or the Final Price shall be adjusted by the
Calculation Agent, in a commercially reasonable manner, with such
adjustment based on, among other factors, the duration of any Market
Disruption Event and the volume, historical trading patterns and price of
the Shares.
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If
a Disrupted Day in full occurs during the Hedging Period or the Valuation
Period for any Transaction, and each of the five (5) Scheduled Trading
Days immediately following such Disrupted Day is also a Disrupted Day in
full, then the Calculation Agent, in its good faith and commercially
reasonable discretion, may deem such fifth (5th)
Scheduled Trading Day to be an Exchange Business Day that is not a
Disrupted Day and determine the Reference Price for such Scheduled Trading
Day using its good faith estimate of the value of the Shares on such
Scheduled Trading Day based on the volume, historical trading patterns and
price of the Shares and such other factors as it deems
appropriate.
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Floating
Amounts Payment:
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There
shall be no Floating Amount payable in connection with any Transaction
under this Master Confirmation.
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Settlement
Method Election:
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Not
Applicable
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Cash
Settlement:
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Applicable
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Cash
Settlement Payment Date:
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For
any Transaction, the third (3rd)
Currency Business Day following the final Valuation Date for such
Transaction.
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Additional
Early Termination Events:
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Partial
Termination Event:
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If
on any day during the Term of any Transaction under this Master
Confirmation, Citi determines that its Equity Percentage with respect to
all Transactions exceeds 9.9% under this Master Confirmation, an
Additional Termination Event shall be deemed to have occurred. Upon
the occurrence of such Additional Termination Event, Citi shall, by
written notice to Counterparty, designate an Early Termination Date
occurring as promptly as reasonably practicable following the occurrence
of such Additional Termination Event (such date, the “Partial Termination
Date”), with respect to any Transaction or a portion of such
Transaction such that (but solely to the extent necessary to ensure that),
after the termination relating to such Partial Termination Event, the
Equity Percentage, as determined by Citi, is 9.9%. In the event that
an Early Termination Date is designated pursuant to the immediately
preceding sentence, then with respect to the terminated portion of any
Transaction, (i) such portion shall be terminated as of the Partial
Termination Date as if an Additional Termination Event shall have occurred
under Section 5(b)(v) of the Agreement with respect to such terminated
portion, (ii) the relevant Partial Termination Date shall be an Early
Termination Date for such terminated portion, (iii) Counterparty shall be
the sole Affected Party with respect to such partial termination, (iv)
such terminated portion shall be the sole Affected Transaction under the
Agreement, and (v) the Number of Shares for such Transaction shall be
reduced by such terminated portion and all other terms of such
Transaction, including the Equity Notional Amount and the Equity Amount,
shall be reduced pro rata, as
determined by the Calculation Agent in its sole discretion, to reflect
such partial termination.
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The
“Equity
Percentage”, as of any day, means the fraction (i) the numerator of
which is equal to the aggregate Number of Shares for all Transactions
under this Master Confirmation and (ii) the denominator of which is equal
to the number of Shares outstanding on such
day.
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Dividends:
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Extraordinary
Dividends:
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Any
dividend or distribution on the Shares, including any dividend or
distribution paid exclusively in cash (other than any dividend or
distribution of the type described in Section 11.2(e)(i), Section
11.2(e)(ii)(A) or Section 11.2(e)(ii)(B) of the Equity
Definitions).
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Payment
Obligation in Respect
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of
Extraordinary Dividends:
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In
the event of any Extraordinary Dividend for which the ex-dividend date
occurs during the period from, but excluding, the Trade Date for any
Transaction hereunder to, and including, the Termination Date for such
Transaction, Citi shall make a payment to Counterparty, within three (3)
Scheduled Trading Days of the date that such Extraordinary Dividend is
delivered or paid to holders of Shares, in an amount equal to (a) to the
extent of any such Extraordinary Dividend in the form of cash, the product
of (i) the Number of Shares for such Transaction and (ii) the amount of
cash that would be received by a holder of one Share in connection with
such Extraordinary Dividend, as determined by the Calculation Agent, and
(b) to the extent of any such Extraordinary Dividend in the form of other
property, the product of (i) the Number of Shares for such Transaction and
(ii) the fair market value of the property that would be received by a
holder of one Share in connection with such Extraordinary Dividend, as
determined by the Calculation Agent, in each case net any amounts withheld
by Citi in accordance with any applicable laws or regulations; provided, however, that
if the ex-dividend date occurs during the Valuation Period for any
Transaction hereunder, the Calculation Agent may reduce the amount of
any such payment to reflect the portion of Citi's Hedge Positions for such
Transaction that have been unwound during the period from, and including,
the initial Valuation Date for such Transaction to, and excluding, such
ex-dividend date.
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Re-investment
of Dividends:
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Not
Applicable
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Method
of Adjustment:
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Calculation
Agent Adjustment; provided, however that,
the Calculation Agent shall not make any adjustment to the terms of any
Transaction hereunder in connection with any dividend or distribution paid
on the Shares to the extent that such dividend or distribution is paid by
Citi to Counterparty pursuant to the provisions opposite the caption
“Extraordinary Dividends” above, except as specifically provided in such
provisions.
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New
Shares:
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In
the definition of New Shares in Section 12.1(i) of the Equity Definitions,
the text in clause (i) thereof shall be deleted in its entirety and
replaced with “publicly quoted, traded or listed on any of the New York
Stock Exchange, The NASDAQ Global Market or The NASDAQ Global Select
Market (or their respective successors) and of an entity or person
organized under the laws of the United States, any State thereof or the
District of Columbia”.
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Consequences
of Merger Events:
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Share-for-Share:
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Calculation
Agent Adjustment
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Share-for-Other:
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Cancellation
and Payment
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Share-for-Combined:
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Component
Adjustment
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Share-for-Share:
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Calculation
Agent Adjustment
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Share-for-Other:
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Calculation
Agent Adjustment
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Share-for-Combined:
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Calculation
Agent Adjustment
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Combined
Consideration:
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Not
Applicable
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Nationalization,
Insolvency or Delisting:
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Cancellation
and Payment
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In
addition to the provisions of Section 12.6(a)(iii) of the Equity
Definitions, it shall also constitute a Delisting if the Exchange is not
located in the United States or the Shares are not immediately re-listed,
re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ
Global Select Market or The NASDAQ Global Market (or their respective
successors); provided that,
if the Shares are immediately re-listed, re-traded or re-quoted on any
such exchange or quotation system, such exchange or quotation system shall
thereafter be deemed to be the
Exchange.
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Additional
Disruption Events:
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Change
in Law:
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Applicable;
provided
that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by
(i) replacing the word “Shares” with the phrase “Hedge Positions”, (ii)
replacing the phrase “the interpretation” in the third line thereof with
the phrase “or public announcement of the formal or informal
interpretation” and (iii) immediately following the word “Transaction” in
clause (X) thereof, adding the phrase “in the manner contemplated by Citi
on the Trade Date”.
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Insolvency
Filing:
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Applicable
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Hedging
Disruption: |
Applicable |
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Increased
Cost of Hedging:
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Applicable.
The notice required to be provided to the Non-Hedging Party in accordance
with Section 12.9(b)(vi) of the Equity Definitions shall include a
certificate from Citi to Counterparty setting forth in reasonable detail
the computation of the amount of the increased costs and the corresponding
Price Adjustment.
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Hedging
Party: |
For
all applicable Additional Disruption Events,
Citi |
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Determining
Party:
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For
all applicable Additional Disruption Events,
Citi
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Additional
Representations, Agreements and Acknowledgments:
Agreements
and Acknowledgments
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Regarding
Hedging Activities:
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Applicable;
provided
that, Citi acknowledges that, with respect to any Transaction, in
connection with the establishment of its initial Hedge Positions for such
Transaction during the Hedging Period and the unwind of such Hedge
Positions during the Valuation Period for such Transaction, Citi shall use
its good faith efforts to establish such Hedge Positions, on any Scheduled
Trading Day during the Hedging Period for such Transaction, and unwind
such Hedge Positions, on any Valuation Date for such Transaction, with
respect to the pro rata portion of
the Number of Shares for such Transaction reflecting, as applicable, the
number of Scheduled Trading Days during the Hedging Period for such
Transaction and the number of Valuation Dates for such
Transaction.
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Additional
Acknowledgments:
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Applicable
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To
Shares:
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Counterparty
acknowledges and agrees that (a) Citi has no obligation to hedge any
Transaction hereunder, (b) if Citi elects to hedge any Transaction
hereunder, Citi may hedge such Transaction in any manner that it deems
appropriate and, (c) if Citi elects to hedge any Transaction hereunder,
Counterparty shall not acquire any right to vote, to dispose of any
Shares, to give any consent with respect to any Shares or to control the
unwind of any Hedge Positions established and maintained by Citi with
respect to such Transaction or otherwise; provided that,
notwithstanding the foregoing, to the extent Citi engages in any hedging
activities with respect to any Transaction, Citi agrees with Counterparty
that Citi, in connection with establishing and maintaining any Hedge
Positions with respect to such Transaction, shall solely establish and
maintain such Hedge Positions in transactions consisting of cash-settled
swaps, cash-settled options or other equivalent cash-settled “synthetic”
positions, and that each position, so established by Citi with any
individual counterparty (together with all of its Affiliates and
Associates, each as defined under Rule 12b-2 under the Securities Exchange
Act of 1934 (the “Exchange Act”))
of Citi to any such Transaction, shall not reference a number of Shares
greater than 3.33% of the outstanding Shares, calculated as of the date of
this Master Confirmation and, if Counterparty has delivered a notice to
Citi pursuant to Section 6(f) of this Master Confirmation prior to the
Trade Date for any such Transaction, taking into account the number of
Shares set forth in such notice, or greater than 9.9% of the outstanding
Shares, calculated as of the date of this Master Confirmation and, if
Counterparty has delivered a notice to Citi pursuant to Section 6(f) of
this Master Confirmation prior to the Trade Date for any such Transaction,
taking into account the number of Shares set forth in such notice, in the
aggregate among all counterparties across all
Transactions.
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4.
Representations,
Warranties and Covenants:
(a) In
connection with this Master Confirmation, each Confirmation, each Transaction to
which a Confirmation relates and any other documentation relating to the
Agreement, each party to this Master Confirmation represents and warrants to,
and agrees with, the other party that:
(i) it
is an “accredited investor”, as defined in Section 2(a)(15)(ii) of the
Securities Act; and
(ii) it
is an “eligible contract participant”, as defined in Section 1a(12) of the
Commodity Exchange Act, as amended (the “CEA”), and this
Master Confirmation and each Transaction hereunder are subject to individual
negotiation by the parties and have not been executed or traded on a “trading
facility” as defined in Section 1a(33) of the CEA.
(b) Counterparty
represents and warrants to, and agrees with, Citi on the Trade Date of each
Transaction that:
(i) its
financial condition is such that it has no need for liquidity with respect to
its investment in such Transaction and no need to dispose of any portion thereof
to satisfy any existing or contemplated undertaking or
indebtedness;
(ii) its
investments in and liabilities in respect of such Transaction, which it
understands are not readily marketable, are not disproportionate to its net
worth, and it is able to bear any loss in connection with such Transaction,
including the loss of its entire investment in such Transaction;
(iii) it
understands that Citi has no obligation or intention to register such
Transaction under the Securities Act or any state securities law or other
applicable federal securities law;
(iv)
it understands that no obligations of Citi to it hereunder shall be entitled to
the benefit of deposit insurance and that such obligations shall not be
guaranteed by any Affiliate (as defined in the Exchange Act) of Citi or any
governmental agency;
(v) IT
UNDERSTANDS THAT SUCH TRANSACTION IS SUBJECT TO COMPLEX RISKS THAT MAY ARISE
WITHOUT WARNING AND MAY AT TIMES BE VOLATILE AND THAT LOSSES MAY OCCUR QUICKLY
AND IN UNANTICIPATED MAGNITUDE AND IS WILLING TO ACCEPT SUCH TERMS AND
CONDITIONS AND ASSUME (FINANCIALLY AND OTHERWISE) SUCH RISKS;
(vi) it
is in compliance in all material respects with its reporting obligations under
the Exchange Act, including, without limitation, Sections 13 and 16 of the
Exchange Act, and the rules and regulations promulgated thereunder, and will, as
and to the extent required by the Exchange Act, file promptly an amendment to
its Scheduled 13D and Form 4 disclosing such Transaction and shall otherwise
remain in compliance with respect to its disclosure obligations with respect to
such Transaction under Sections 13 and 16 of the Exchange Act;
(vii) it
is not entering into such Transaction with the purpose to create, and shall not
engage in any other securities or derivatives transactions with the purpose to
create, actual or apparent trading activity in the Shares (or any security
convertible into or exchangeable for Shares) or to raise or depress or to
manipulate the price of the Shares (or any security convertible into or
exchangeable for Shares);
(viii) the
execution and delivery of this Master Confirmation or the Confirmation for any
Transaction, or the incurrence or performance of obligations of Counterparty
hereunder will not conflict with or result in a breach of the certificate of
incorporation or by laws (or any equivalent documents) of Counterparty, or any
applicable law or regulation, or any order, writ, injunction or decree of any
court or governmental authority or agency, or any agreement or instrument to
which Counterparty or any of its subsidiaries is a party or by which
Counterparty or any of its subsidiaries is bound or to which Counterparty or any
of its subsidiaries is subject, or constitute a default under, or result in the
creation of any lien under, any such agreement or instrument;
(ix) it
has sufficient knowledge and expertise to enter into such Transaction and it is
entering into such Transaction in reliance upon such tax, accounting,
regulatory, legal, and financial advice as its deems necessary and not upon any
view expressed by any other person;
(x) it
has made its own independent decision to enter into such Transaction, is acting
at arm’s length and is not relying on any communication (written or oral) of any
other party as a recommendation or investment advice regarding such
Transaction;
(xi) it
has the capability to evaluate and understand (on its own behalf or through
independent professional advice), and does understand, the terms, conditions and
risks of such Transaction and is willing to accept those terms and conditions
and to assume (financially and otherwise) those risks; and
(xii) it
acknowledges and agrees that Citi is not acting as a fiduciary or advisor to it
in connection with such Transaction.
(c) Counterparty
represents and warrants to, and agrees with, Citi that, (x) with respect to
clause (i) below, as of the Trade Date and, (y) with respect to clauses (ii) and
(iii) below, for any Scheduled Trading Day during the Hedging Period for any
Transaction:
(i) if
it were to have effected transactions in any Shares on such date, whether on the
Exchange or otherwise, such transactions would not have violated any applicable
securities law applicable to Counterparty;
(ii) to
the best of Counterparty’s knowledge, the Issuer is not, and neither
Counterparty nor any of its direct or indirect parent entities has, since the
Currency Business Day immediately preceding the first Scheduled Trading Day in
the Hedging Period, caused the Issuer to be engaged in a distribution, as such
term is used in Regulation M under the Exchange Act, of any securities of the
Issuer, other than a distribution meeting the requirements of the exception set
forth in Section 101(b)(10) or 102(b)(7) of Regulation M; and
(iii) it
has not, since the Trade Date for such Transaction, directly or indirectly
(including by means of a derivative instrument) entered into any transaction
involving the purchase of any Shares, including any cash settled
derivative providing it with a long exposure to Shares, other than through
Citi.
(d) Citi
represents and warrants to, and agrees with, Counterparty that, as of the date
of this Master Confirmation, Citi and its Associates and Affiliates (each as
defined under Rule 12b-2 under the Exchange Act), taken together, beneficially
own approximately 297,054 Shares.
(e) Citi
represents and warrants to, and agrees with, Counterparty that, as of the date
of this Master Confirmation, Citi is not, and at any time during the term of any
Transaction under this Master Confirmation, will not be, a party to any
agreement, arrangement or understanding between Citi and any one or more
counterparties to any of Citi's Hedge Positions providing for the acquisition of
Shares by Citi or requiring any such counterparty to acquire any
Shares.
(f) Citi
represents and warrants to, and agrees with, Counterparty that, as of the date
of this Master Confirmation and as of each date on which Citi enters into any
Hedge Position with respect to a Transaction, (i) Citi is not aware of the
counterparty to such Hedge Position having contact with, or knowledge of the
identity of, any other counterparty to Citi's Hedge Positions in their
capacities as such counterparties, and (ii) Citi is not aware of the
counterparty to such Hedge Position making its decision to acquire any Shares in
connection with the establishment of such Hedge Position in conjunction with any
other counterparty to Citi’s Hedge Positions.
5.
Conditions
to Citi’s Obligations:
(a) Notwithstanding
anything to the contrary in this Master Confirmation or the Agreement, Citi’s
obligations under this Master Confirmation shall be subject to the following
condition:
(i) On
the date of this Master Confirmation, Counterparty shall deliver to Citi an
opinion of outside counsel, such outside counsel and the form and substance of
such opinion reasonably satisfactory to Citi, with respect to Counterparty as to
matters covered in Section 3(a) of the Agreement; and
(ii) On
the date of this Master Confirmation, Counterparty shall deliver to Citi an
executed copy of a letter agreement from the Issuer substantially in the form of
Exhibit C hereto.
6.
Miscellaneous:
(a) Early
Termination. The parties agree that Second Method and Loss shall
apply to each Transaction under this Master Confirmation, as such terms are
defined in the Agreement.
(b) Netting of
Obligations. The respective cash payment obligations on any day of
Counterparty, on the one hand, and Citi, on the other hand, falling on the same
day, whether under a single or multiple Transactions hereunder and including any
Transfers pursuant to Section 8 of this Master Confirmation, shall be
netted.
(c) Priority of
Claims. The parties acknowledge and agree that Counterparty’s
obligations with respect to each Transaction under this Master Confirmation and
any claims arising out of or relating hereto shall rank at least pari passu in all respects
with all of its other obligations to unsecured, unsubordinated
creditors.
(d) Securities Contract; Swap
Agreement. The parties hereto intend for: (i) each Transaction
hereunder to be a “securities contract” and a “swap agreement” as defined in the
Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”),
and the parties hereto to be entitled to the protections afforded by, among
other Sections, Sections 362(b)(6), 555 and 560 of the Bankruptcy Code; (ii) a
party’s right to liquidate a Transaction and to exercise any other remedies upon
the occurrence of any Event of Default under the Agreement with respect to the
other party to constitute a “contractual right” as described in the Bankruptcy
Code; (iii) any cash, securities or other property provided as performance
assurance, credit support or collateral with respect to a Transaction to
constitute “margin payments” and “transfers” under a “swap agreement” as defined
in the Bankruptcy Code; and (iv) all payments for, under or in connection with a
Transaction, all payments for the Shares and the transfer of such Shares to
constitute “settlement payments” and “transfers” under a “swap agreement” as
defined in the Bankruptcy Code.
(e) 10b5-1 Plan.
Subject to the terms of this Master Confirmation, Counterparty acknowledges and
agrees that (i) all transactions with respect to Citi’s establishment of its
Hedge Positions with respect to any Transaction shall be made in Citi’s sole
discretion and for Citi’s own account, and (ii) Counterparty does not have, and
shall not attempt to exercise, any influence over how, when, whether and at what
prices to effect such transactions. It is the intent of Counterparty and
Citi that each Transaction comply with the requirements of Rule 10b5-1(c) of the
Exchange Act and that this Master Confirmation and any Confirmation shall be
interpreted to comply with the requirements of Rule 10b5-1(c)(1)(i)(B) and
Counterparty shall take no action that results in such Transaction not so
complying with such requirements.
(f) Repurchase
Notices. Counterparty shall, on any Business Day on which
Counterparty becomes aware that Issuer has effected any repurchase of Shares,
promptly give Citi a written notice of such repurchase (a “Repurchase Notice”)
on such day if, to Counterparty’s knowledge, following such repurchase, the
Equity Percentage, as determined on such day, is equal to or greater than 9.9%;
provided, however, that in no
event shall Counterparty be required to provide such notice to Citi at any time
when such information is not publicly available.
(g) Unwind of Hedge
Positions. Counterparty hereby agrees that if, as a result of any
change in law or public interpretation of law by the U.S. Securities and
Exchange Commission after the date hereof, any unwind of the Hedge Positions by
either Citi or any counterparties of Citi, with respect to any Hedge Positions
effected and maintained by Citi for the purpose of hedging its obligations under
any Transaction, in Citi’s reasonable discretion, based on the advice of
nationally recognized outside counsel to Citi, cannot be effected in the U.S.
public market by such counterparty without registration under the Securities
Act, the term of such Transaction shall be extended for the period of up to six
(6) months, on terms substantially identical to the terms contained in this
Master Confirmation and the Confirmation and the Pricing Supplement for such
Transaction, in order to provide for an orderly unwind of such Hedge Positions
in accordance with the applicable restrictions under the Securities Act, and
Counterparty shall reasonably cooperate with Citi and such counterparties in
their efforts to unwind such Hedge Positions, in transactions with third
parties, in compliance with any available exemption under the Securities
Act.
(h) Indemnification.
Counterparty agrees to indemnify and hold harmless Citi, its affiliates and its
assignees and their respective directors, officers, employees, agents and
controlling persons (Citi and each such person being an “Indemnified Party”)
from and against any and all losses, claims, damages and liabilities, joint or
several, to which such Indemnified Party may become subject, and will reimburse
any Indemnified Party for all expenses (including reasonable counsel fees and
expenses) as they are incurred in connection with the investigation of,
preparation for or defense or settlement of any pending or threatened
third-party claim or any third-party action, suit or proceeding arising
therefrom, in each case if and to the extent arising out of any of the
Transactions contemplated by this Master Confirmation, whether or not such
Indemnified Party is a party thereto. Counterparty will not be liable
under the foregoing indemnification provision to the extent that any loss,
claim, damage, liability or expense is found in a nonappealable judgment by a
court of competent jurisdiction to have resulted from Citi’s breach of a term of
this Master Confirmation, willful misconduct or gross negligence. If for
any reason the foregoing indemnification is unavailable to any Indemnified Party
or insufficient to hold harmless any Indemnified Party, then Counterparty shall
contribute, to the maximum extent permitted by law (but only to the extent that
such harm was not caused by Citi’s breach of any term of this Master
Confirmation, willful misconduct or gross negligence), to the amount paid or
payable by the Indemnified Party as a result of such loss, claim, damage or
liability. Counterparty also agrees that no Indemnified Party shall have
any liability to Counterparty or any person asserting claims on behalf of or in
right of Counterparty in connection with or as a result of any matter referred
to in this Master Confirmation or the Agreement except to the extent that any
losses, claims, damages, liabilities or expenses incurred by Counterparty result
from the breach of a material term of this Master Confirmation, or the
Indemnified Party’s gross negligence or willful misconduct. The provisions
of this Section 6(h) shall survive completion of the Transactions contemplated
by this Master Confirmation and any transfer made by Citi pursuant to Section
7(e) and shall inure to the benefit of any permitted assignee of
Citi.
7.
Schedule
Provisions:
(a) Notices. In
addition to the notices contemplated by the Agreement, with respect to any
Transaction under this Master Confirmation, the parties shall deliver the
following notices:
To
Citi:
Citigroup
Global Markets Inc.
390
Greenwich Street, 5th
Floor
New York,
NY 10013
Attn:
Corporate Equity Derivatives
Telephone:
(212) 723-7452
with a
copy to:
Citigroup
Global Markets Inc.
390
Greenwich St., 17th
Floor
New York,
NY 10013
Attention:
Legal Group – Equity Derivatives
Facsimile:
(212) 816-7772
Telephone:
(212) 816-1141
To
Counterparty:
Glencore
International AG
Attn:
Daniel Goldberg
Baarermattstrasse
3
Baar
6341
Switzerland
Facsimile:
+41 41 709 3000
Telephone:
+41-41-709-2000
with a
copy to:
Glencore
International AG
Attn:
Matthew Weber
Baarermattstrasse
3
Baar
6341
Switzerland
Facsimile:
+41 41 709 3000
Telephone:
+41-41-709-2000
|
(b)
|
Accounts for
Payment:
|
***
(c) Tax Form
Delivery. For the purposes of Section 4(a)(i) and (ii) of the
Agreement, Counterparty agrees to deliver such documents as Citi may request in
order to allow Citi to make a payment under the Agreement without any deduction
or withholding for or on account of any Tax or with such deduction or
withholding at a reduced rate including, without limitation, an executed United
States Internal Revenue Service Form W-8BEN (or any successor thereto), (i) upon
execution of the Agreement; (ii) promptly upon reasonable demand by Citi; and
(iii) promptly upon learning that any such document, including Form W-8BEN (or
any successor thereto), previously provided by Counterparty has become obsolete
or incorrect.
(d) Setoff. If, on
any date, any amount (an “Early Termination
Amount”) payable to one party (the “Payee”) by the other
party (the “Payer”) under Section
6(e) of the Agreement, in circumstances where there is a Defaulting Party or
where there is one Affected Party in the case where either a Credit Event Upon
Merger has occurred or any other Termination Event in respect of which all
outstanding Transactions are Affected Transactions has occurred, such amount
shall, at the option of the Non-defaulting Party or the party that is not the
Affected Party, as the case may be, be reduced, automatically satisfied,
discharged and offset against any other amounts (“Other Amounts”)
payable by the Payee to the Payer (whether or not arising under the Agreement,
matured or contingent and irrespective of the currency, place of payment or
place of booking of the obligation). To the extent that any Other Amounts
are so discharged or offset, those Other Amounts will be discharged promptly and
in all respects. A party taking advantage of its rights under this Section
7(d) will give notice to the other party of any discharge or set-off effected
under this Section 7(d). For this purpose, either the Early Termination
Amount or the Other Amounts (or the relevant portions of such amounts) may be
converted by such party into the currency in which the other is denominated at
the rate of exchange at which such party would be able, in good faith and using
commercially reasonable procedures, to purchase the relevant amount of such
currency. If an obligation is unascertained, such party may in good faith
estimate that obligation and set off with respect to the estimate, subject to
the relevant party accounting to the other when the obligation is
ascertained. Nothing in this Section 7(d) will be effective to create a
charge or other security interest. This Section 7(d) will be without
prejudice and in addition to any right of set-off, offset, combination of
accounts, lien, right of retention or withholding or similar right or
requirement to which any party is at any time otherwise entitled or subject
(whether by operation of law, contract or otherwise).
(e) Transfer.
Notwithstanding any provision of the Agreement to the contrary, Citi shall be
entitled to assign its rights and obligations hereunder to make or receive cash
payments and other related rights to one or more entities that are wholly-owned,
directly or indirectly, by Citigroup Inc., or any successor thereto (each, a
“Citi
Affiliate”); provided that Citi
shall be discharged of its obligations to Counterparty only to the extent of the
performance thereof by such Citi Affiliate.
(f) Additional Termination
Events. In addition to the Termination Events specified in the
Master Confirmation it shall constitute an Additional Termination Event, with
respect to which Counterparty shall be the sole Affected Party, if Counterparty
becomes an “Acquiring Person” within the meaning of the Rights
Agreement.
(g) Confidentiality.
Notwithstanding any provision in this Master Confirmation, any Confirmation or
the Agreement, in connection with Section 1.6011-4 of the Treasury Regulations,
the parties hereby agree that each party (and each employee, representative or
other agent of such party) may disclose to any and all persons, without
limitation of any kind, the U.S. tax treatment and U.S. tax structure of the
Transaction and all materials of any kind (including opinions or other tax
analyses) that are provided to such party relating to such U.S. tax treatment
and U.S. tax structure, other than any information for which nondisclosure is
reasonably necessary in order to comply with applicable securities
laws.
(h) Evidence of
Authority. On the date hereof, Counterparty will provide to Citi
evidence satisfactory to Citi of its authority to enter into Transactions
hereunder and the incumbency of the designated signatory of the
Counterparty.
(i) Consent to
Recording. Each party (i) consents to the recording of the
telephone conversations of trading and marketing personnel of the parties and
their Affiliates in connection with this Master Confirmation and (ii) agrees to
obtain any necessary consent of, and give notice of such recording to, such
personnel of it and its Affiliates.
(j) Severability;
Illegality. If compliance by either party with any provision of a
Transaction would be unenforceable or illegal, (i) the parties shall
negotiate in good faith to resolve such unenforceability or illegality in a
manner that preserves the economic benefits of the transactions contemplated
hereby and (ii) the other provisions of the Transaction shall not be
invalidated, but shall remain in full force and effect.
(k) Governing Law.
THIS MASTER CONFIRMATION WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ANY PROVISION OR ELEMENT
OF CHOICE OF LAW DOCTRINE THAT WOULD PROVIDE OTHERWISE.
(l) Waiver of Trial by
Jury. EACH OF COUNTERPARTY AND CITI HEREBY IRREVOCABLY WAIVES (ON
ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS
STOCKHOLDERS) ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS TRANSACTION OR THE ACTIONS OF CITI OR ITS AFFILIATES IN THE
NEGOTIATION, PERFORMANCE OR ENFORCEMENT HEREOF.
(m) Submission to
Jurisdiction. THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK IN CONNECTION WITH ALL
MATTERS RELATING HERETO AND WAIVE ANY OBJECTION TO THE LAYING OF VENUE IN, AND
ANY CLAIM OF INCONVENIENT FORUM WITH RESPECT TO, THESE COURTS.
8.
Collateral
Provisions: This Section 8 is
intended to make specifications in respect of Paragraph 13 of the printed form
of the 1994 ISDA Credit Support Annex (Bilateral Form—ISDA Agreements Subject to
New York Law Only), as published by ISDA (the “Form Credit Support
Annex”), which is hereby incorporated herein, and such provisions
contained in this Section 8 shall constitute the Credit Support Document solely
with respect to any Transaction arising under this Master Confirmation; provided that, for
the avoidance of doubt, any Credit Support Amount calculated pursuant to the
provisions of this Section 8 shall not be taken into account when calculating
any “Exposure” or “Credit Support Amount” under any other credit support
document between Counterparty and Citi, whether entered simultaneously with or
following the date of this Master Confirmation. For the purposes of this
Section 8, paragraphs 1 through 12 of the Form Credit Support Annex are
incorporated by reference herein, subject to the elections and modifications set
out below. Any defined term used in this Section 8 but not otherwise
defined herein shall have the meaning assigned to such term in this Master
Confirmation. In the case of any inconsistency between the definitions or
provisions of this Section 8 and the Form Credit Support Annex, the relevant
definitions or provisions of this Section 8 shall prevail.
(a) Security Interest for
“Obligations”. The term “Obligations” as used in this Section 8 has
the meaning specified in Paragraph 12 of the Form Credit Support Annex and
includes no additional obligations with respect to either Citi or
Counterparty.
(b) Credit Support
Obligations.
(i) Delivery
Amount. Paragraph 3(a) of the Form Credit Support Annex shall be amended
and restated in its entirety as follows: “On the first Scheduled
Trading Day following the Hedging Period End Date for each Transaction,
Counterparty shall Transfer to Citi, without any requirement for a demand
therefor by Citi, Eligible Credit Support in an amount equal to the Delivery
Amount with respect to such Transaction. “Delivery Amount”, with respect
to each Transaction, means the Credit Support Amount with respect to such
Transaction.”
(ii) Return
Amount. “Return Amount” has the meaning set forth in Paragraph 3(b) of the
Form Credit Support Annex, subject to the provisions of “Credit Support Amount”,
below.
(iii) Credit
Support Amount. In lieu of the meaning specified in Paragraph 12 of the
Form Credit Support Annex, “Credit Support Amount” means, with respect to
Counterparty as Pledgor, the sum, across all Transactions under the Master
Confirmation, of the Credit Support Amounts specified as such in the Pricing
Supplement for each such Transaction, each of which Credit Support Amounts shall
be equal, as of each day occurring during the term of any Transaction prior to
the Cash Settlement Payment Date for such Transaction, to the product of (i) the
Number of Shares for such Transaction, and (ii) the Initial Price for such
Transaction. For the avoidance of doubt, the Credit Support Amount with
respect to a Transaction will be reduced to USD 0 on the Cash Settlement Payment
Date applicable to such Transaction. Notwithstanding anything to the
contrary in Paragraphs 3(b) or 4(b) of the Form Credit Support Annex, Citi shall
Transfer to Counterparty an amount equal to the Return Amount resulting from
such reduction in the Credit Support Amount on the same day as such reduction
occurs, without any requirement for a demand therefor by Counterparty. If
the Equity Amount applicable to a Transaction is a negative number, Citi shall,
in lieu of Transferring to Counterparty the amount that would otherwise be due
to Counterparty under Paragraph 3(b) of the Form Credit Support Annex, Transfer
to Counterparty an amount net of the absolute value of the Equity Amount
applicable to such Transaction, and Counterparty’s obligation to pay the
absolute value of such Equity Amount on the relevant Cash Settlement Payment
Date shall thereby be satisfied and discharged as a result of such
netting. In addition, in connection with the payment of the Commission for
any Transaction on the Cash Settlement Payment Date for such Transaction, in
lieu of Transferring to Counterparty the amount that would otherwise be due to
Counterparty under Paragraph 3(b) of the Form Credit Support Annex, Citi shall
Transfer to Counterparty an amount net of such Commission, and Counterparty’s
obligation to pay such Commission on the relevant Cash Settlement Payment Date
shall thereby be satisfied and discharged as a result of such
netting.
(iv) Eligible
Collateral. The following item will qualify as “Eligible Collateral” for
each party:
|
(A)
|
USD
Cash, for which a “Valuation Percentage” of 100% shall be
applicable.
|
(v) Other
Eligible Support. There will be no “Other Eligible Support”.
(vi) Thresholds.
(A) “Independent
Amount” means, with respect to Citi: none.
“Independent Amount” means, with
respect to Counterparty: none.
(B) “Threshold”
means, with respect to Citi: infinity.
“Threshold” means, with respect to
Counterparty: zero.
(C) “Minimum
Transfer Amount” means, with respect to each
party: zero.
(D) Rounding.
Not Applicable.
(c) Valuation and
Timing.
(i) “Valuation
Agent” means the Secured Party.
(ii) “Valuation
Date” means each Local Business Day.
(iii) “Valuation
Time”. Not Applicable.
(iv) “Notification
Time” means 1:00 p.m., New York time, on a Local Business Day.
(v) Paragraph
4(b) of the Form Credit Support Annex is amended by substituting “same” for
“next” in the third line and substituting “next” for “second” in the fifth
line.
(d) Conditions Precedent and
Secured Party’s Rights and Remedies. The following Termination
Event will be a “Specified Condition” for both Citi and Counterparty (that party
being the Affected Party if the Termination Event occurs with respect to that
party), if, in relation to the occurrence of such event, the Transaction is an
Affected Transaction:
(i) Additional
Termination Events
(e) Substitution.
Not Applicable.
(f) Dispute
Resolution. The provisions of Paragraph 5 of the Form Credit
Support Annex will not apply.
(g) Holding and Using Posted
Collateral.
(i) Eligibility
to Hold Posted Collateral; Custodian. Citi and its Custodian will be
entitled to hold Posted Collateral.
(ii) Use
of Posted Collateral. The provisions of Paragraph 6(c)(i) of the Form
Credit Support Annex will apply.
(h) Distributions and Interest
Amount. The provisions of Paragraph 6(d) of the Form Credit
Support Annex will not apply.
(i) Additional
Representation(s). None.
(j) Other Eligible Support and
Other Posted Support. None.
(k) Other
Provisions.
(i) For
the avoidance of doubt, the parties agree that for the purposes of this Section
8, Citi is the sole Secured Party and Counterparty is the sole
Pledgor.
(ii) Actions
Hereunder. Citi may take any actions under this Section 8 through the
Custodian or any Citi Affiliate or agent; provided that, Citi
shall be discharged of its obligations to Counterparty only to the extent of the
performance thereof by such Citi Affiliate or such agent.
(iii) Events
of Default. Paragraph 7 of the Form Credit Support Annex is amended by
substituting in clause (i) the words “one Local Business Day” in place of “two
Local Business Days”; by inserting in clause (iii) the words “under this Annex”
immediately after the words “or obligation”; and by substituting in clause (iii)
“10 days” in place of “30 days”.
Counterparty
hereby agrees (a) to check this Master Confirmation promptly upon receipt
so that errors or discrepancies can be promptly identified and rectified and
(b) to confirm that the foregoing correctly sets forth the terms of the
agreement between Citi and Counterparty, by manually signing this Master
Confirmation and providing any other information requested herein and
immediately returning an executed copy to Confirmation Unit via
646-291-3965. Hard copies should be returned to Citigroup Global Markets
Inc., 333 West 34th Street,
2nd
Floor, New York, New York 10001, Attention: Confirmation
Unit.
|
Yours
sincerely,
|
|
|
|
CITIGROUP
GLOBAL MARKETS INC.
|
|
|
|
|
By:
|
/s/ Herman Hirsch
|
|
|
Name:
Herman Hirsch
|
|
|
Title:
Managing Director
|
Confirmed
as of the date first above written:
GLENCORE
INTERNATIONAL AG
By:
|
/s/ Barbara Bodmer
|
|
/s/
Stefan Peter |
|
Name:
Barbara Bodmer
|
|
Stefan
Peter |
|
Title:
Officer
|
|
Officer |
[Signature Page to Master Terms and
Conditions for Swap Transactions]
EXHIBIT
A
FORM
OF SWAP CONFIRMATION
CONFIRMATION
Date:
|
_________________
|
|
|
To:
|
Glencore
International AG (“Counterparty”)
|
Telefax
No.:
|
+41
41 709 3000
|
Attention:
|
Daniel
Goldberg
|
|
|
From:
|
Citigroup
Global Markets Inc. (“Citi”)
|
Telefax
No.:
|
212-615-8985
|
Transaction
Reference Number: ____________________
The
purpose of this communication (this “Confirmation”) is to
set forth the terms and conditions of the above-referenced Transaction entered
into on the Trade Date specified below between Counterparty and Citi. This
Confirmation supplements, forms a part of, and is subject to the Master Terms
and Conditions for Swap Transactions dated as of July 2, 2010, and as amended
from time to time (the “Master
Confirmation”), between Counterparty and Citi.
1.
The definitions and
provisions contained in the Definitions (as such term is defined in the Master
Confirmation) and in the Master Confirmation are incorporated into this
Confirmation. In the event of any inconsistency between those definitions
and provisions and this Confirmation, this Confirmation will
govern.
2.
The particular Transaction
to which this Confirmation relates shall have the following terms:
Trade
Date:
|
[____
__, 2010]
|
|
|
Number
of Shares:
|
[___________]
|
|
|
[Hedging
Period End Date:
|
[____
__, 201_]]
|
|
|
[Number
of Valuation Dates:
|
[_____]]
|
Counterparty
hereby agrees (a) to check this Confirmation promptly upon receipt so that
errors or discrepancies can be promptly identified and rectified and (b) to
confirm that the foregoing correctly sets forth the terms of the agreement
between Citi and Counterparty with respect to the particular Transaction to
which this Confirmation relates, by manually signing this Confirmation and
providing any other information requested herein or in the Master Confirmation
and immediately returning an executed copy to Confirmation Unit via
646-291-3965. Hard copies should be returned to Citigroup Global Markets
Inc., 333 West 34th Street,
2nd
Floor, New York, New York 10001, Attention: Confirmation
Unit.
|
Yours
sincerely,
|
|
|
|
CITIGROUP
GLOBAL MARKETS INC.
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
|
Title:
|
Confirmed
as of the
date
first above written:
GLENCORE
INTERNATIONAL AG
[Signature Page to Confirmation—Swap
Transaction]
EXHIBIT
B
FORM
OF PRICING SUPPLEMENT
PRICING
SUPPLEMENT
Date:
|
_________________
|
|
|
To:
|
Glencore
International AG (“Counterparty”)
|
Telefax
No.:
|
+41
41 709 3000
|
Attention:
|
Daniel
Goldberg
|
|
|
From:
|
Citigroup
Global Markets Inc. (“Citi”)
|
Telefax
No.:
|
212-615-8985
|
Transaction
Reference Number: ____________________
The
purpose of this communication (this “Pricing Supplement”)
is to set forth certain terms of the above-referenced Transaction entered into
on [_____________], between Counterparty and Citi. This Pricing Supplement
supplements, forms a part of, and is subject to the Master Terms and Conditions
for Swap Transactions dated as of July 2, 2010 and as amended from time to time
(the “Master
Confirmation”), between Counterparty and Citi.
1.
The definitions and
provisions contained in the Definitions (as such term is defined in the Master
Confirmation) and in the Master Confirmation are incorporated into this Pricing
Supplement. In the event of any inconsistency between those definitions
and provisions and this Pricing Supplement, this Pricing Supplement will
govern.
2.
The particular Transaction
to which this Pricing Supplement relates shall have the following
terms:
[Number
of Shares:
|
[_____]]
|
|
|
Initial
Price:
|
USD
[___]
|
|
|
Credit
Support Amount:
|
USD
[______]
|
|
|
[Structuring
Fee:
|
USD
[___]]
|
|
|
Commission:
|
USD
[___]
|
|
|
Equity
Notional Amount:
|
USD
[___]
|
|
|
Termination
Date:
|
[____
__, 2012]
|
Counterparty
hereby agrees (a) to check this Pricing Supplement promptly upon receipt so
that errors or discrepancies can be promptly identified and rectified and
(b) to confirm that the foregoing correctly sets forth the specified terms
of the agreement between Citi and Counterparty with respect to the particular
Transaction to which this Pricing Supplement relates, by manually signing this
Pricing Supplement and providing any other information requested herein or in
the Master Confirmation and immediately returning an executed copy to
Confirmation Unit via 646-291-3965. Hard copies should be returned to
Citigroup Global Markets Inc., 333 West 34th Street,
2nd
Floor, New York, New York 10001, Attention: Confirmation
Unit.
|
Yours
sincerely,
|
|
|
|
CITIGROUP
GLOBAL MARKETS INC.
|
|
|
|
By:
|
|
|
|
Name:
|
|
|
Title:
|
Confirmed
as of the
date
first above written:
GLENCORE
INTERNATIONAL AG
CONFIDENTIAL
Century
Aluminum Company
2511
Garden Road
Building A, Suite 200
Monterey,
California 93940
Glencore
International AG
Baarermattstrasse
3
6341
Baar, Switzerland
Attn:
Daniel Goldberg
Ladies
and Gentlemen:
Reference
is made to the Master Terms and Conditions for Swap Transactions between
Citigroup Global Markets Inc. ("Citi") and Glencore International AG
("Glencore"), dated as of July 2,
2010, attached hereto as Exhibit A (the
"Master Terms Agreement"), and the Tax Benefit Preservation Plan, between
Century Aluminum Company (the "Company") and Computershare Trust Company, N.A.,
as rights agent, dated as of September 29, 2009, attached hereto as Exhibit B (as
amended, the "Rights Agreement"). Capitalized terms used but not defined
herein shall have the meanings given to them in the Rights Agreement unless
otherwise indicated.
Glencore
represents and warrants to the Company that, as of the date of this letter
agreement, Glencore and its Associates and Affiliates, taken together,
Beneficially Own 36,252,503
shares of Common Stock (not including shares of Common Stock issuable upon the
conversion of the shares of the Company’s Series A Preferred Stock hereinafter
referenced, but including 19,000 shares of Common Stock subject to presently
exercisable options held directly by Mr. Willy R. Strothotte, who holds such
options as nominee for Glencore and certain of its Affiliates) and 82,661.01
shares of the Company’s Series A Preferred Stock, par value $0.01 per
share (it being understood and agreed that neither Glencore nor any of its
Affiliates or Associates shall obtain Beneficial Ownership of any Company
security by virtue of (i) entering into the Master Terms Agreement (together
with the Confirmations, the Pricing Supplements and the Agreement as defined and
referred to therein, in each case substantially in the form attached hereto as
Exhibit A) or
(ii) any of the transactions contemplated by the terms of the Master Terms
Agreement (together with the Confirmations, the Pricing Supplements and the
Agreement as defined and referred to therein, in each case substantially in the
form attached hereto as Exhibit A)).
Except for the Master Terms Agreement, the Agreement, the Confirmations and the
Pricing Supplements, in each case substantially in the form attached hereto as
Exhibit A, and
the transactions expressly contemplated thereby, Glencore represents that, as of
the date of this Agreement, Glencore is not a party to, and agrees that prior to
the termination of all Transactions (as defined in the Master Terms Agreement)
under the Master Terms Agreement, Glencore will not enter into, any contract,
arrangement or understanding with any party that Glencore knows to be a
counterparty to Citi's Hedge Positions (as defined in the Master Terms
Agreement), in each case, with respect to (i) the acquisition by Glencore or any
of its Affiliates or Associates of any Common Stock of the Company held by such
counterparty to Citi's Hedge Positions (the "Covered Common Stock"), or (ii) the
voting by Glencore or any of its Affiiliates or Associates of any Covered Common
Stock (each a "Covered Contract"), or enter into any contract, arrangement or
understanding directing any third party to enter into any Covered Contract with
any counterparty to Citi's Hedge Positions; provided, however that,
notwithstanding anything to the contrary in this letter agreement, the
agreements and acknowledgements of Glencore in this sentence shall not prohibit,
and Glencore and its Affiliates and Associates shall be permitted to enter into
and/or effect, (x) any acquisition of Covered Common Stock pursuant to
open-market transactions on a national securities exchange, (y) any acquisition
of Covered Common Stock pursuant to a tender offer for all or a portion of the
Common Stock or any other business combination involving the Company or (z) any
voting contract, arrangement or understanding (including, without limitation,
any proxy (whether revocable or irrevocable)) entered into in connection with
any public solicitation of proxies or consents subject to the rules and
regulations promulgated under the Securities Exchange Act of 1934. In the
event that the Company determines in good faith that, solely as a result of an
Opinion Development occurring after the date of this letter agreement, the
Company can no longer rely upon the opinion delivered by Curtis, Mallet-Prevost,
Colt & Mosle LLP ("Curtis") to Glencore, dated July 2, 2010 (the "Opinion"),
the Company shall promptly so notify Glencore in writing and Glencore agrees
that from and after its receipt of such notice it shall not enter into any
additional Confirmations under the Master Terms Agreement until such time, if
any, at which the Company determines that it can again rely upon the Opinion
(provided that the Company shall give good faith consideration to any request
for such a determination by Glencore). For purposes of this paragraph,
"Opinion Development" shall mean (i) the representation made by the Company in
the Officer's Tax Certificate delivered by the Company to Curtis, dated July 2,
2010, ceasing to be true; (ii) a change in any of the facts upon which Curtis
relied in rendering the Opinion which adversely changes the conclusions set
forth in the Opinion; or (iii) a change in the U.S. Internal Revenue Code of
1986, as amended, the Treasury Regulations promulgated thereunder or prevailing
judicial interpretations of the foregoing which adversely changes the
conclusions set forth in the Opinion. Any notice to be sent to Glencore
hereunder shall be sent contemporaneously by email to each of Steven Blumgart at
[email protected],
Daniel Goldberg at [email protected],
Richard Marshall at [email protected]
and Matthew Weber at [email protected].
The
Company hereby acknowledges and agrees that (i) the Master Terms Agreement and
the transactions contemplated by the Master Terms Agreement, provided that they
are executed in accordance with the terms and on the conditions set forth in the
Master Terms Agreement (together with the Confirmations, the Pricing Supplements
and the Agreement referred to therein, in each case substantially in the form
attached hereto as Exhibit A)
(“Permitted Transactions”), shall not result in either Glencore, Citi or any of
their respective Affiliates or Associates being deemed a “Beneficial Owner” of
or to “beneficially own” Common Stock of the Company or to be an "Acquiring
Person" for purposes of the Rights Agreement and (ii) all Permitted Transactions
shall be "Exempt Transactions" pursuant to, and in accordance with, Section 35
of the Rights Agreement. The Company and Glencore hereby acknowledge and
agree that the acknowledgements and agreements of the Company in the immediately
preceding sentence shall be in no way affected by, and shall remain in full
force and effect notwithstanding, any breach or failure to perform any
representation, warranty or agreement of Glencore pursuant to the second
paragraph of this letter agreement (except for, solely with respect to such
acknowledgments and agreements relating to Glencore and its Affiliates and
Associates, any such breach or failure to perform which would in and of itself
result in Glencore constituting an "Acquiring Person" for purposes of the Rights
Agreement).
The
Company agrees that Citi and its Affiliates and Associates are express third
party beneficiaries of this letter agreement.
The
Company and Glencore hereby acknowledge and agree that this letter agreement
shall not be amended except by means of a writing executed by each of the
Company and Glencore.
|
Very
truly yours,
|
|
|
|
CENTURY
ALUMINUM COMPANY
|
|
|
|
|
By:
|
/s/ Mike Bless
|
|
|
Name:
Mike Bless
|
|
|
Title:
EVP & CFO
|
Acknowledged
and agreed to as of
the date
first written above:
GLENCORE
INTERNATIONAL AG
By:
|
/s/ Barbara Bodmer
|
|
/s/
Stefan Peter |
|
Name:
Barbara Bodmer
|
|
Stefan
Peter |
|
Title:
Officer
|
|
Officer |
EXHIBIT
8
CONFIDENTIAL
Century
Aluminum Company
2511
Garden Road
Building
A, Suite 200
Monterey,
California 93940
Glencore
International AG
Baarermattstrasse
3
6341
Baar, Switzerland
Attn:
Daniel Goldberg
Ladies
and Gentlemen:
Reference
is made to the Master Terms and Conditions for Swap Transactions between
Citigroup Global Markets Inc. ("Citi") and Glencore International AG
("Glencore"), dated as of July 2, 2010, attached hereto as Exhibit A (the
"Master Terms Agreement"), and the Tax Benefit Preservation Plan, between
Century Aluminum Company (the "Company") and Computershare Trust Company, N.A.,
as rights agent, dated as of September 29, 2009, attached hereto as Exhibit B (as
amended, the "Rights Agreement"). Capitalized terms used but not defined
herein shall have the meanings given to them in the Rights Agreement unless
otherwise indicated.
Glencore
represents and warrants to the Company that, as of the date of this letter
agreement, Glencore and its Associates and Affiliates, taken together,
Beneficially Own 36,252,503 shares of Common Stock (not including shares of
Common Stock issuable upon the conversion of the shares of the Company's Series
A Preferred Stock hereinafter referenced, but including 19,000 shares of Common
Stock subject to presently exercisable options held directly by Mr. Willy R.
Strothotte, who holds such options as nominee for Glencore and certain of its
Affiliates) and 82,661.01 shares of the Company's Series A Preferred Stock, par
value $0.01 per share (it being understood and agreed that neither Glencore nor
any of its Affiliates or Associates shall obtain Beneficial Ownership of any
Company security by virtue of (i) entering into the Master Terms Agreement
(together with the Confirmations, the Pricing Supplements and the Agreement as
defined and referred to therein, in each case substantially in the form attached
hereto as Exhibit
A) or (ii) any of the transactions contemplated by the terms of the
Master Terms Agreement (together with the Confirmations, the Pricing Supplements
and the Agreement as defined and referred to therein, in each case substantially
in the form attached hereto as Exhibit A)).
Except for the Master Terms Agreement, the Agreement, the Confirmations and the
Pricing Supplements, in each case substantially in the form attached hereto as
Exhibit A, and
the transactions expressly contemplated thereby, Glencore represents that, as of
the date of this Agreement, Glencore is not a party to, and agrees that prior to
the termination of all Transactions (as defined in the Master Terms Agreement)
under the Master Terms Agreement, Glencore will not enter into, any contract,
arrangement or understanding with any party that Glencore knows to be a
counterparty to Citi's Hedge Positions (as defined in the Master Terms
Agreement), in each case, with respect to (i) the acquisition by Glencore or any
of its Affiliates or Associates of any Common Stock of the Company held by such
counterparty to Citi's Hedge Positions (the "Covered Common Stock"), or (ii) the
voting by Glencore or any of its Affiiliates or Associates of any Covered Common
Stock (each a "Covered Contract"), or enter into any contract, arrangement or
understanding directing any third party to enter into any Covered Contract with
any counterparty to Citi's Hedge Positions; provided, however that,
notwithstanding anything to the contrary in this letter agreement, the
agreements and acknowledgements of Glencore in this sentence shall not prohibit,
and Glencore and its Affiliates and Associates shall be permitted to enter into
and/or effect, (x) any acquisition of Covered Common Stock pursuant to
open-market transactions on a national securities exchange, (y) any acquisition
of Covered Common Stock pursuant to a tender offer for all or a portion of the
Common Stock or any other business combination involving the Company or (z) any
voting contract, arrangement or understanding (including, without limitation,
any proxy (whether revocable or irrevocable)) entered into in connection with
any public solicitation of proxies or consents subject to the rules and
regulations promulgated under the Securities Exchange Act of 1934. In the
event that the Company determines in good faith that, solely as a result of an
Opinion Development occurring after the date of this letter agreement, the
Company can no longer rely upon the opinion delivered by Curtis, Mallet-Prevost,
Colt & Mosle LLP ("Curtis") to Glencore, dated July 2, 2010 (the "Opinion"),
the Company shall promptly so notify Glencore in writing and Glencore agrees
that from and after its receipt of such notice it shall not enter into any
additional Confirmations under the Master Terms Agreement until such time, if
any, at which the Company determines that it can again rely upon the Opinion
(provided that the Company shall give good faith consideration to any request
for such a determination by Glencore). For purposes of this paragraph,
"Opinion Development" shall mean (i) the representation made by the Company in
the Officer's Tax Certificate delivered by the Company to Curtis, dated July 2,
2010, ceasing to be true; (ii) a change in any of the facts upon which Curtis
relied in rendering the Opinion which adversely changes the conclusions set
forth in the Opinion; or (iii) a change in the U.S. Internal Revenue Code of
1986, as amended, the Treasury Regulations promulgated thereunder or prevailing
judicial interpretations of the foregoing which adversely changes the
conclusions set forth in the Opinion. Any notice to be sent to Glencore
hereunder shall be sent contemporaneously by email to each of Steven Blumgart at
[email protected],
Daniel Goldberg at [email protected],
Richard Marshall at [email protected]
and Matthew Weber at [email protected].
The
Company hereby acknowledges and agrees that (i) the Master Terms Agreement and
the transactions contemplated by the Master Terms Agreement, provided that they
are executed in accordance with the terms and on the conditions set forth in the
Master Terms Agreement (together with the Confirmations, the Pricing Supplements
and the Agreement referred to therein, in each case substantially in the form
attached hereto as Exhibit A)
(“Permitted Transactions”), shall not result in either Glencore, Citi or any of
their respective Affiliates or Associates being deemed a “Beneficial Owner” of
or to “beneficially own” Common Stock of the Company or to be an "Acquiring
Person" for purposes of the Rights Agreement and (ii) all Permitted Transactions
shall be "Exempt Transactions" pursuant to, and in accordance with, Section 35
of the Rights Agreement. The Company and Glencore hereby acknowledge and
agree that the acknowledgements and agreements of the Company in the immediately
preceding sentence shall be in no way affected by, and shall remain in full
force and effect notwithstanding, any breach or failure to perform any
representation, warranty or agreement of Glencore pursuant to the second
paragraph of this letter agreement (except for, solely with respect to such
acknowledgments and agreements relating to Glencore and its Affiliates and
Associates, any such breach or failure to perform which would in and of itself
result in Glencore constituting an "Acquiring Person" for purposes of the Rights
Agreement).
The
Company agrees that Citi and its Affiliates and Associates are express third
party beneficiaries of this letter agreement.
The
Company and Glencore hereby acknowledge and agree that this letter agreement
shall not be amended except by means of a writing executed by each of the
Company and Glencore.
|
Very
truly yours,
|
|
|
|
CENTURY
ALUMINUM COMPANY
|
|
|
|
|
By:
|
/s/ Mike Bless
|
|
|
Name:
Mike Bless
|
|
|
Title:
EVP & CFO
|
Acknowledged
and agreed to as of
the date
first written above:
GLENCORE
INTERNATIONAL AG
By:
|
/s/ Barbara Bodmer
|
|
/s/
Stefan Peter |
|
Name:
Barbara Bodmer
|
|
Stefan
Peter |
|
Title:
Officer
|
|
Officer |