AGREEMENT TO AMEND CERTAIN PROVISIONS OF STANDSTILL AND GOVERNANCE AGREEMENT
EXHIBIT
2
AGREEMENT
TO AMEND CERTAIN PROVISIONS OF
THIS
AGREEMENT (this “Agreement”) is entered into as of January_27, 2009, by and
between Century Aluminum Company, a corporation organized and existing under the
laws of the State of Delaware (the “Company”) and Glencore AG, a company
organized and existing under the laws of Switzerland (“Glencore”).
WHEREAS,
the Company proposes to offer newly-issued shares (the “Offered Shares”) of the
Company’s common stock, par value $0.01 per share (the “Common Stock”), for sale
to the public by means of a firm commitment underwritten public offering
(including any sale of Common Stock pursuant to an underwriters’ over-allotment,
the “Offering”);
WHEREAS, it is anticipated
that a portion of the Offered Shares will be purchased in the Offering by
Glencore and/or one or more of its Affiliates (the “Glencore
Shares”);
WHEREAS, the Company and
Glencore are parties to that certain Standstill and Governance Agreement dated
as of July 7, 2008 (the “SAGA”) (all capitalized terms used and not defined
herein shall have the meaning set forth in the SAGA);
WHEREAS, the Company and
Glencore have agreed to amend certain provisions of the SAGA so that Glencore
may increase its current Ownership Percentage of approximately 30.16% by the
purchase of the Glencore Shares, and that Glencore and its Affiliates may
exercise voting rights with respect to a number of shares of Company Common
Stock equivalent to the Glencore Shares; and
WHEREAS, the Independent
Directors of the Board of Directors of the Company and the Board of Directors of
the Company have approved this Agreement;
NOW, THEREFORE, in order to
provide for Glencore’s and its Affiliates’ purchase of the Glencore Shares in
the Offering, the Company and Glencore do hereby agree as follows:
I. Notwithstanding
the definition of Permitted Ownership Percentage in Section 1.1 of the SAGA,
Glencore and its Affiliates shall be permitted to increase its current Ownership
Percentage of approximately 30.16% by purchasing the Glencore Shares in the
Offering;
II. After
the purchase of the Glencore Shares in the Offering, Glencore’s Permitted
Ownership Percentage until April 7, 2009 shall be the greater of (x) 28.5% and
(y) the quotient, expressed as a percentage, of: (a) the sum of (i) the number
of shares of Common Stock that equals 28.5% of the Company’s outstanding Common
Shares immediately prior to the Offering, and (ii) the number of Glencore
Shares; divided by (b) the number of outstanding Company Common Shares
immediately following the Offering;
III. Following
April 7, 2009, Glencore’s Permitted Ownership Percentage shall be as currently
set forth in the SAGA;
IV. For
the avoidance of doubt, it is acknowledged that Glencore and its Affiliates
shall be entitled to exercise all voting rights with respect to a number of
shares of Company Common Stock equivalent to the Glencore Shares and such Shares
shall not be subject to Section 2.1(c) of the SAGA; provided that Section 2.1(c)
shall continue to apply with respect to any increase in Glencore’s Ownership
Percentage beyond the Permitted Ownership Percentage (as increased hereby) which
is not otherwise permitted by the terms of the SAGA;
V. Except
for such terms of the SAGA as shall be modified hereby, the SAGA shall continue
in full force and effect;
VI. This
Agreement shall be governed by the laws of the State of New York (without regard
to its choice of law rules); and
VII. Notwithstanding
any other provision of this Agreement, the amendments to the SAGA provided for
hereby shall become effective if and only if the Offering is consummated and
Glencore and/or its Affiliates purchase any Glencore Shares
therein.
[Signature page
follows]
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
| CENTURY ALUMINUM COMPANY | |||
|
By:
|
/s/ ▇▇▇▇▇▇▇ ▇. Bless | ||
| Name: ▇▇▇▇▇▇▇ ▇. Bless | |||
| Title: Executive Vice President | |||
|
and Chief Financial
officer
|
|||
| GLENCORE AG | |||
|
By:
|
/s/ ▇. ▇▇▇▇▇▇▇ | ||
| Name: ▇. ▇▇▇▇▇▇▇ | |||
| Title: Director | |||
|
By:
|
/s/ L. Grenacher ▇▇▇▇▇▇▇ | ||
| Name: L. Grenacher ▇▇▇▇▇▇▇ | |||
| Title: Officer |