Unassociated Document
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
13D/A
Under the
Securities Exchange Act of 1934
(Amendment
No. 12)
CENTURY
ALUMINUM COMPANY
Name of
Issuer
COMMON
STOCK, $0.01 Par Value
(Title of
Class of Securities)
156431
10 8
(CUSIP
Number)
Company
Secretary
Glencore
Holding AG
Baarermattstrasse
3, P.O. Box 666
CH-6341
Baar, Switzerland
Phone:
41-709-2000
(Name,
Address and Telephone Number of Person
Authorized
to Receive Notices and Communications)
(Date of
Event which Requires Filing of this Statement)
If the
filing person has previously filed a statement on Schedule 13G to report the
acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box. o
Note : Schedules filed in
paper format shall include a signed original and five copies of the schedule,
including all exhibits. See § 240.13d-7 for other parties to whom
copies are to be sent.
The
information required on the remainder of this cover page shall not be deemed to
be ''filed'' for the purpose of Section 18 of the Securities Exchange Act of
1934 (''Act'') or otherwise subject to the liabilities of that section of the
Act but shall be subject to all other provisions of the Act (however, see the
Notes).
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SCHEDULE
13D
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CUSIP
No. 156431 10 8
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Page 2 of
14
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1.
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Names
of Reporting Persons.
I.R.S. Identification
Nos. of above persons (entities only).
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Glencore
International AG
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2.
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Check
the Appropriate Box if a Member of a Group (See
Instructions)
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(a)
o
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(b)
o
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3.
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SEC
Use Only
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4.
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Source
of Funds (See Instructions)
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WC,
AF
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5.
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Check
if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or
2(e)
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6.
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Citizenship
or Place of Organization
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Switzerland
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Number
of
Shares
Beneficially
by
Owned by
Each
Reporting
Person
With
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7.
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Sole
Voting Power: None
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8.
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Shared
Voting Power: 36,252,503 shares (See Item
5)
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9.
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Sole
Dispositive Power: None
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10.
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Shared
Dispositive Power: 36,252,503 shares (See Item
5)
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11.
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Aggregate
Amount Beneficially Owned by Each Reporting Person:
36,252,503
shares (See Item 5)
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12.
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Check
if the Aggregate Amount in Row (11) Excludes Certain
Shares (See Instructions)
Not
applicable.
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13.
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Percent
of Class Represented by Amount in Row (11):
39.08%
(See Item 5)
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14.
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Type
of Reporting Person (See Instructions)
CO,
HC
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SCHEDULE
13D
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CUSIP
No. 156431 10 8
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Page 3 of
14
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1.
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Names
of Reporting Persons.
I.R.S. Identification
Nos. of above persons (entities only).
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Glencore
Holding AG
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2.
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Check
the Appropriate Box if a Member of a Group (See
Instructions)
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(a)
o
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(b)
o
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3.
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SEC
Use Only
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4.
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Source
of Funds (See Instructions)
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AF
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5.
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Check
if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or
2(e)
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6.
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Citizenship
or Place of Organization
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Switzerland
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Number
of
Shares
Beneficially
by
Owned by
Each
Reporting
Person
With
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7.
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Sole
Voting Power: None
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8.
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Shared
Voting Power: 36,252,503 shares (See Item
5)
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9.
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Sole
Dispositive Power: None
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10.
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Shared
Dispositive Power: 36,252,503 shares (See Item
5)
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11.
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Aggregate
Amount Beneficially Owned by Each Reporting Person:
36,252,503
shares (See Item 5)
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12.
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Check
if the Aggregate Amount in Row (11) Excludes Certain
Shares (See Instructions)
Not
applicable.
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13.
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Percent
of Class Represented by Amount in Row (11):
39.08%
(See Item 5)
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14.
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Type
of Reporting Person (See Instructions)
CO,
HC
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SCHEDULE
13D
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CUSIP
No. 156431 10 8
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Page 4 of 14
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1.
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Names
of Reporting Persons.
I.R.S. Identification
Nos. of above persons (entities only).
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Glencore
AG
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2.
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Check
the Appropriate Box if a Member of a Group (See
Instructions)
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(a)
o
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(b)
o
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3.
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SEC
Use Only
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4.
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Source
of Funds (See Instructions)
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WC,
AF
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5.
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Check
if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or
2(e)
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6.
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Citizenship
or Place of Organization
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Switzerland
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Number
of
Shares
Beneficially
by
Owned by
Each
Reporting
Person
With
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7.
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Sole
Voting Power: None
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8.
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Shared
Voting Power: 36,252,503 shares (See Item
5)
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9.
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Sole
Dispositive Power: None
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10.
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Shared
Dispositive Power: 36,252,503 shares (See Item
5)
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11.
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Aggregate
Amount Beneficially Owned by Each Reporting Person:
36,252,503 shares
(See Item 5)
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12.
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Check
if the Aggregate Amount in Row (11) Excludes Certain
Shares (See Instructions)
Not
applicable.
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13.
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Percent
of Class Represented by Amount in Row (11):
39.08%
(See Item 5)
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14.
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Type
of Reporting Person (See Instructions)
CO
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Explanatory
Note:
This
Amendment No. 12 ("Amendment No. 12") 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, May 4, 2009, March 22, 2010, April 7, 2010, July 2, 2010
and July 6, 2010 (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. 12 reflects changes to Items 5 and 6 of the Schedule 13D.
Item
1.
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Security
and Issuer
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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.
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Identity
and Background
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(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.
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Source
and Amount of Funds or Other
Consideration
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Since the
Company's initial public offering of Common Stock and the registration of 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 77,057.13 shares have since been converted
into 7,705,713 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.
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Purpose
of the Transaction
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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 Common Stock, and have acquired additional securities of the
Company, for investment purposes.
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 and a
Letter Agreement with the Company. Reference is made to the
discussion of the Standstill and Governance Agreement and the Letter Agreement
in Item 6 below.
Item
5.
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Interest
in Securities of the Issuer
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(a) The
Reporting Persons beneficially own 36,252,503 shares of Common Stock, or 39.08%
of the 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 8,266,101 shares of Common Stock
issuable upon conversion of the 82,661.01 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 19,000 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 92,738,877 shares
of Common Stock outstanding as of August 4, 2010, as reported in the Company's
Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2010, as
filed with the Securities and Exchange Commission on August 9, 2010, plus (ii)
19,000 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 36,252,503 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.
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Contracts,
Arrangements, Understandings or Relationships with Respect to Securities
of the Issuer
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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 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 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 Common Stock on Nasdaq for twenty (20) trading days
starting twenty-two (22) trading days before the 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, 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 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
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 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 Common Stock for a period of three continuous months.
Letter
Agreement: On April 6, 2010, the Reporting Persons entered into a
letter agreement with the Company (the "Letter Agreement"). Pursuant
to the terms of the Letter Agreement, the Company agreed to increase the size of
its Board of Directors to 11 members prior to the Company's 2010 Annual Meeting
of Stockholders (the "2010 Annual Meeting") and to cause the slate of nominees
standing for election to the Board of Directors at the 2010 Annual Meeting to
include (i) Ivan Glasenberg, Andrew Michelmore, John O'Brien and Peter Jones,
each of whom were nominated as Class II directors of the Company with a term
expiring at the Company's 2013 Annual Meeting of Stockholders, and (ii) John
Fontaine, who was nominated as a Class I director of the Company with a term
expiring at the Company's 2012 Annual Meeting of Stockholders. At the
2010 Annual Meeting held on June 8, 2010, Messrs. Glasenberg, Michelmore,
O'Brien, Jones and Fontaine were elected to the Board of Directors.
As part
of the Letter Agreement, the Company has further agreed that if, after having
been elected to the Board of Directors, Mr. Glasenberg ceases to be a member of
the Board of Directors for any reason at or prior to the Company's 2013 Annual
Meeting of Stockholders, the Reporting Persons will have the ability to
designate a substitute reasonably acceptable to the Company to replace Mr.
Glasenberg as a director, with such determination regarding acceptability to be
made by the Company in good faith and reasonably promptly. Any such
substitute director will be appointed by the Board of Directors no later than
one business day after such determination.
Swaps: On
July 2, 2010, Glencore International entered into a Master Terms and Conditions
for Swap Transactions agreement (the "Swap Agreement") with Citigroup Global
Markets Inc. ("Citi"). Pursuant to the Swap Agreement, Glencore
International and Citi may, from time to time, enter into certain cash-settled
total return swaps (the "Swaps") with respect to the Common
Stock. Among other things, the Swap Agreement provides that all
transactions thereunder will not reference more than 9.9% of the outstanding
Common Stock. In connection with establishing and maintaining any
hedging positions with respect to the Swaps, the Swap Agreement provides that
Citi must establish and maintain such hedging positions in transactions
consisting of cash-settled swaps, cash-settled options or other equivalent
cash-settled "synthetic" positions.
Under the
terms of the Swaps, generally, (i) Glencore International will be obligated to
post cash collateral to Citi, pay to Citi certain fees and commissions and make
a cash payment to Citi with respect to any depreciation in the volume weighted
average price of the Common Stock from the initial averaging period for a Swap
to a final valuation period preceding the termination of the Swap, and (ii) Citi
will be obligated to pay to Glencore International an amount in cash equal to
any dividends that would have been paid by the Company on the Common Stock
referenced by each Swap and make a cash payment to Glencore with respect to any
appreciation in the volume weighted average price of the Common Stock from the
initial averaging period for a Swap to the final valuation period preceding the
termination of the Swap. The overall effect of the Swap parties' cash
payments based on the price of the Common Stock referenced in the Swaps is to
provide Glencore International with economic exposure to price movements in the
number of shares of Common Stock referenced in the Swaps during the relevant
time periods.
The Swaps
will not give the Reporting Persons direct or indirect voting, investment or
dispositive control over any securities of the Company and will not require Citi
to acquire, hold, vote or dispose of any securities of the
Company. Accordingly, the Reporting Persons disclaim any beneficial
ownership of any shares of Common Stock that may be referenced in the Swaps or
shares of Common Stock or other securities or financial instruments of the
Company that may be held from time to time by Citi.
In
connection with entry into the Swaps, the Company and the Reporting Persons have
agreed that the Swaps and the transactions contemplated thereby will (i) not
result in the Reporting Persons or Citi, or any of their respective affiliates
or associates, being deemed to be a "Beneficial Owner" of, or to "beneficially
own" any, shares of Common Stock, or constitute an "Acquiring Person" for
purposes of the Company's Tax Benefit Preservation Plan, dated as of September
29, 2009 (the "Rights Plan"), and (ii) be deemed to constitute "Exempt
Transactions" pursuant to, and in accordance with, Section 35 of the Rights
Agreement. Capitalized terms used in the preceding sentence and not
otherwise defined in the Schedule 13D shall have the meaning ascribed to them in
the Rights Plan.
Pursuant
to the Swap Agreement, on September 15, 2010 Glencore International received
economic exposure to 4,729,302 notional shares of Common Stock, or approximately
5.10% of the outstanding Common Stock based on the number of outstanding shares
set forth in Item 5, at a reference price of $9.71927 per notional share of
Common Stock, under a swap that expires on September 17, 2012.
The
foregoing descriptions of the Certificate of Designation, Governance Agreement,
Registration Rights Agreement, Support Agreement, Letter Agreement and Swap
Agreement are subject to, and qualified in their entirety by reference to, the
full text of such documents and agreements, which are filed herewith or were
previously filed with the Securities and Exchange Commission as exhibits to the
Schedule 13D, and are hereby 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.
|
Joint
Filing Agreement (filed herewith)
|
2.
|
Certificate
of Designation of the Series A 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)
|
3.
|
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)
|
4.
|
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)
|
5.
|
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)
|
6.
|
Letter
Agreement (Incorporated by reference to Exhibit 6 to the Schedule 13D
filed with the Securities and Exchange Commission on April 7,
2010)
|
7.
|
Master
Terms and Conditions for Swap Transactions (Incorporated by reference to
Exhibit 7 to the Schedule 13D filed with the Securities and Exchange
Commission on July 6, 2010)
|
8.
|
Consent
Under Rights Plan (Incorporated by reference to Exhibit 8 to the Schedule
13D filed with the Securities and Exchange Commission on July 6,
2010)
|
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: September
16, 2010
|
Glencore
International AG
|
|
|
|
|
|
By:
|
/s/
Steven Kalmin
|
|
/s/
Richard Marshall
|
|
|
Name:
|
Steven
Kalmin
|
|
Richard
Marshall
|
|
|
Title:
|
Officer
|
|
Officer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Glencore
Holding AG
|
|
|
|
|
|
By:
|
/s/
Andreas Hubmann
|
|
/s/
Ivan Glasenberg
|
|
|
Name:
|
Andreas
Hubmann
|
|
Ivan
Glasenberg
|
|
|
Title:
|
Director
|
|
Director
|
|
|
|
|
|
|
|
|
Glencore
AG
|
|
|
|
|
|
By:
|
/s/
Stefan Peter
|
|
/s/
Steven Blumgart
|
|
|
Name:
|
Stefan
Peter
|
|
Steven
Blumgart
|
|
|
Title:
|
Officer
|
|
Officer
|
|
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.
Directors
of Glencore Holding AG:
Name
|
|
Principal
Occupation
|
|
Business
address
|
|
Share
Ownership
|
Willy
R. Strothotte (Citizen of Germany)
|
|
Chairman
|
|
|
|
19,000
shares of Common Stock (representing 19,000 shares which are subject to
options presently exercisable) (1)
|
Ivan
Glasenberg (Citizen of Australia)
|
|
Chief
Executive Officer
|
|
|
|
|
Andreas
P. Hubmann
|
|
Officer
of Glencore International AG –Accounting
|
|
|
|
|
Peter
A. Pestalozzi
|
|
Attorney,
Pestalozzi Lachenal Patry Zurich Ltd.
|
|
Lowenstrasse
1
CH-8001
Zurich Switzerland
|
|
|
Zbynek
E. Zak
|
|
Non-Executive
Director; former CFO of Glencore International AG
(retired)
|
|
Buetzenweg
16
CH-6300
Zug Switzerland
|
|
|
Craig
A. Davis
(Citizen
of the US)
|
|
Non-Executive
Director, former Chairman and CEO of Century Aluminum Company
(retired)
|
|
|
|
457
shares of Common
Stock
|
Directors
of Glencore International AG:
Name
|
|
Principal
Occupation
|
|
Business
address
|
|
Share
Ownership
|
Willy
R. Strothotte (Citizen of Germany)
|
|
Chairman
|
|
|
|
19,000
shares of Common Stock (representing 19,000 shares which are subject to
options presently exercisable) (1)
|
Ivan
Glasenberg (Citizen of Australia)
|
|
Chief
Executive Officer
|
|
|
|
|
Zbynek
E. Zak
|
|
Non-Executive
Director; former CFO of Glencore International AG
(retired)
|
|
Buetzenweg
16
CH-6300
Zug Switzerland
|
|
|
Peter
A. Pestalozzi
|
|
Attorney,
Pestalozzi Lachenal Patry Zurich Ltd.
|
|
Loewenstrasse
1 CH-8001
Zurich,
Switzerland
|
|
|
Craig
A. Davis (Citizen of the US)
|
|
Non-Executive
Director, former Chairman and CEO of Century Aluminum Company
(retired)
|
|
|
|
457
shares of Common
Stock
|
Directors
of Glencore AG:
Name
|
|
Principal
Occupation
|
|
Business
address
|
|
Share
Ownership
|
Willy
R. Strothotte (Citizen of Germany)
|
|
Chairman
|
|
|
|
19,000
shares of Common Stock (representing 19,000 shares which are subject to
options presently exercisable) (1)
|
Ivan
Glasenberg (Citizen of Australia)
|
|
Chief
Executive Officer
|
|
|
|
|
Steven
F. Kalmin (Citizen of Australia)
|
|
Chief
Financial Officer
|
|
|
|
|
Andreas
P. Hubmann
|
|
Officer
of Glencore International AG –Accounting
|
|
|
|
|
Aristotelis
Mistakidis (Citizen of the United Kingdom)
|
|
Glencore
International AG – Head Zinc Copper
|
|
|
|
|
(1)
|
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.
|
EXHIBIT
1
JOINT
FILING AGREEMENT
Each of
the undersigned hereby agrees that this Amendment No. 12 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:
September 16, 2010
|
Glencore
International AG
|
|
|
|
|
|
By:
|
/s/
Steven Kalmin
|
|
/s/
Richard Marshall
|
|
|
Name:
|
Steven
Kalmin
|
|
Richard
Marhsall
|
|
|
Title:
|
Officer
|
|
Officer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Glencore
Holding AG
|
|
|
|
|
|
By:
|
/s/
Andreas Hubmann
|
|
/s/
Ivan Glasenberg
|
|
|
Name:
|
Andreas
Hubmann
|
|
Ivan
Glasenberg
|
|
|
Title:
|
Director
|
|
Director
|
|
|
|
|
|
|
|
|
Glencore
AG
|
|
|
|
|
|
By:
|
/s/
Stefan Peter
|
|
/s/
Steven Blumgart
|
|
|
Name:
|
Stefan
Peter
|
|
Steven
Blumgart
|
|
|
Title:
|
Officer
|
|
Officer
|
|