AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 17, 2004
REGISTRATION NO. 333-______
================================================================================
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
CENTURY ALUMINUM COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 13-3070826
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
2511 GARDEN ROAD, BUILDING A, SUITE 200
MONTEREY, CALIFORNIA 93940
(831) 642-9300
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
-------------------------
GERALD J. KITCHEN
EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL,
CHIEF ADMINISTRATIVE OFFICER AND SECRETARY
CENTURY ALUMINUM COMPANY
2511 GARDEN ROAD, BUILDING A, SUITE 200
MONTEREY, CALIFORNIA 93940
(831) 642-9300
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-------------------------
Copies to:
JEFFREY N. OSTRAGER, ESQ.
CURTIS, MALLET-PREVOST, COLT & MOSLE LLP
101 PARK AVENUE
NEW YORK, NEW YORK 10178
(212) 696-6000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE REGISTRATION FEE
----------------------------------------------------------------------------------------------------------------
Common Stock, $0.01 par value, $300,000,000 (1) $300,000,000 (2) $38,010
to be offered by the Issuer ...
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Common Stock, $0.01 par value,
to be offered by the Selling
Shareholders................... 500,000 $26.75 (3) $ 13,375,000 (3) $ 1,695
----------------------------------------------------------------------------------------------------------------
Total.......................... $313,375,000 $39,705
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(1) There are being registered under this registration statement an
indeterminate number of shares of our common stock as may from time to
time be issued at indeterminate prices and as shall have an aggregate
initial offering price not to exceed $300,000,000.
(2) Calculated pursuant to Rule 457(o) under the Securities Act of 1933.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, based on the
average of the high and low prices of Century Aluminum Company Common
Stock, $0.01 par value, as reported on the Nasdaq National Market on
March 12, 2004.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
FILES A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
================================================================================
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE AND
THE SELLING SHAREHOLDERS MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION
STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN
OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
SUBJECT TO COMPLETION, DATED _________ __, 2004
[CENTURY ALUMINUM LOGO]
$300,000,000
Common Stock
500,000 Shares
Common Stock
Offered by
Selling Shareholders
We may from time to time offer and sell shares of our common stock, par
value $0.01 per share, at prices and on terms to be determined at or prior to
the time of sale up to a total dollar amount of $300,000,000. The selling
shareholders named in this prospectus may from time to time offer and sell up to
500,000 shares of our common stock owned by them, at prices and on terms to be
determined at or prior to the time of sale. We will not receive any proceeds
from the sale of shares by the selling shareholders.
We and the selling shareholders may from time to time offer and sell
our respective shares of common stock in the same offering or in separate
offerings, to or through underwriters, dealers and agents or directly to
purchasers. Each time we or the selling shareholders offer any common stock
pursuant to this registration statement we will provide a prospectus supplement
that will contain specific information about the terms of that offering. The
names of any underwriters or agents involved in the sale of our common stock and
their compensation will be described in the accompanying prospectus supplement.
The prospectus supplement also may add, update or change information contained
in this prospectus. You should read this prospectus and any prospectus
supplement carefully before you invest.
Our common stock trades on The NASDAQ Stock Market(R) under the symbol
"CENX."
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is _______ __, 2004.
TABLE OF CONTENTS
PAGE
----
ABOUT THIS PROSPECTUS.............................................................. 1
WHERE YOU CAN FIND MORE INFORMATION................................................ 1
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.................................... 1
FORWARD-LOOKING STATEMENTS......................................................... 2
CENTURY ALUMINUM COMPANY........................................................... 3
USE OF PROCEEDS.................................................................... 3
SELLING SHAREHOLDERS............................................................... 3
DESCRIPTION OF CAPITAL STOCK....................................................... 4
PLAN OF DISTRIBUTION............................................................... 7
LEGAL MATTERS...................................................................... 8
EXPERTS............................................................................ 8
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS DOCUMENT OR
TO WHICH WE HAVE REFERRED YOU. NEITHER WE NOR THE SELLING SHAREHOLDERS HAVE
AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION THAT IS DIFFERENT. NEITHER WE
NOR THE SELLING SHAREHOLDERS ARE MAKING AN OFFER TO SELL OUR COMMON STOCK IN ANY
JURISDICTION WHERE THE OFFER OR SALE IS NOT PERMITTED.
THIS PROSPECTUS INCORPORATES IMPORTANT BUSINESS AND FINANCIAL
INFORMATION ABOUT US THAT IS NOT INCLUDED IN OR DELIVERED WITH THIS PROSPECTUS.
WE WILL PROVIDE WITHOUT CHARGE TO EACH PERSON, INCLUDING ANY BENEFICIAL OWNER,
TO WHOM A PROSPECTUS IS DELIVERED, UPON WRITTEN OR ORAL REQUEST OF ANY SUCH
PERSON, A COPY OF ANY OR ALL OF THE INFORMATION THAT WE HAVE INCORPORATED BY
REFERENCE IN THIS PROSPECTUS BUT HAVE NOT DELIVERED WITH THIS PROSPECTUS. YOU
MAY REQUEST A COPY OF THESE FILINGS, BY WRITING OR TELEPHONING US AT: CENTURY
ALUMINUM COMPANY, 2511 GARDEN ROAD, BUILDING A, SUITE 200, MONTEREY, CA 93940,
ATTENTION: CORPORATE SECRETARY OR (831)642-9300. SEE "INCORPORATION OF CERTAIN
DOCUMENTS BY REFERENCE."
ii
ABOUT THIS PROSPECTUS
In this prospectus, the words "Century Aluminum," "we," "us," "our" and
"ours" refer to Century Aluminum Company, together with its consolidated
subsidiaries.
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission, or the SEC, using a "shelf" registration
process. Under this shelf registration process, we may from time to time offer
and sell up to $300,000,000 of our common stock and the selling shareholders may
from time to time offer and sell up to an aggregate of 500,000 shares of our
common stock owned by them.
This prospectus describes our common stock and the general manner in
which we and the selling shareholders will offer our common stock. Each time we
or the selling shareholders offer any common stock under this prospectus, we
will provide a prospectus supplement that will contain specific information
about the terms of that offering. The prospectus supplement may add to or update
other information contained in, or incorporated by reference into, this
prospectus. Before making your investment decision, you should read the
prospectus supplement and this prospectus, together with the documents
incorporated by reference therein and herein and described under the headings
"Where You Can Find More Information" and "Incorporation of Certain Documents by
Reference."
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Securities
Exchange Act of 1934, as amended, or the Exchange Act, and file annual,
quarterly and special reports, proxy statements and other information with the
SEC. These reports, statements and other information filed by us can be
inspected and copied at the public reference room of the SEC at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549. Requests for
copies should be directed to the SEC's Public Reference Section, Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 (1-800-732-0330) for more information on the public reference
room. The SEC maintains a website (http://www.sec.gov) that contains reports,
statements and other information regarding registrants that file electronically.
You may also obtain additional information about us from our website, which is
located at www.centuryaluminum.com. Our website provides access to filings made
by us through the SEC's EDGAR filing system, including our annual, quarterly and
current reports filed on Forms 10-K, 10-Q and 8-K, respectively, and ownership
reports filed on Forms 3, 4 and 5 after December 16, 2002 by our directors,
executive officers and beneficial owners of more than 10% of our outstanding
common stock. Information contained in our website is not incorporated by
reference in, and should not be considered a part of, this prospectus.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" information we file
with it, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and information that we subsequently
file with the SEC will automatically update and supersede this information as
well as other information in this prospectus.
We incorporate by reference the documents listed below and any future
filings made with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the
Exchange Act after the date of the initial registration statement and before the
effectiveness of this registration statement, and after the date of this
prospectus and until we sell all of the common stock registered under this
prospectus:
SEC FORM DATE FILED
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Current Report on Form 8-K............................... March 17, 2004
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SEC FORM DATE FILED
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Annual Report on Form 10-K for the year ended
December 31, 2003......................................... February 26, 2004
The description of our common stock contained in
our Registration Statement on Form 8-A.................... March 4, 1996
We will provide without charge to each person, including any beneficial
owner, to whom a prospectus is delivered, upon written or oral request of any
such person, a copy of any or all of the information that we have incorporated
by reference in this prospectus but have not delivered with this prospectus. You
may request a copy of these filings, by writing or telephoning us at: Century
Aluminum Company, 2511 Garden Road, Building A, Suite 200, Monterey, CA 93940,
Attention: Corporate Secretary or (831) 642-9300.
FORWARD-LOOKING STATEMENTS
In this prospectus, together with the documents incorporated by
reference herein, and each prospectus supplement, we make statements that may be
considered forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933, as amended, or the Securities Act, and Section 21E of
the Exchange Act. We have based these forward-looking statements on our current
expectations and projections about future events. Many of these statements may
be identified by the use of forward-looking words such as "anticipate,"
"believe," "hope," "expect," "anticipate," "should," "will," "will likely,"
"forecast," "project," "planned," "estimated" and "potential," among others.
These forward-looking statements are subject to risks, uncertainties and
assumptions including, among other things:
- Our high level of indebtedness reduces cash available for
other purposes, such as the payment of dividends, and limits
our ability to incur additional debt and pursue our growth
strategy;
- The cyclical nature of the aluminum industry causes
variability in our earnings and cash flows;
- The loss of a major customer would increase our production
costs at those facilities which deliver molten aluminum;
- Glencore International AG owns a large percentage of our
common stock and has the ability to influence matters
requiring shareholder approval;
- We could suffer losses due to a temporary or prolonged
interruption of the supply of electrical power to our
facilities, which can be caused by unusually high demand,
blackouts, equipment failure, natural disasters or other
catastrophic events;
- Due to increasing prices for alumina, the principal raw
material used in primary aluminum production, changes to or
disruptions in our current alumina supply arrangements would
materially impact our raw material costs;
- Changes in the relative cost of certain raw materials and
energy compared to the price of primary aluminum could affect
our margins;
- Most of our employees are unionized and any labor dispute or
failure to successfully renegotiate an existing labor
agreement could materially impair our ability to conduct our
production operations at our unionized facilities;
- We are subject to a variety of environmental laws that could
result in costs or liabilities; and
- We may not realize the expected benefits of our growth
strategy if we are unable to successfully integrate the
businesses we acquire.
Given these uncertainties, you should not place undue reliance on these
forward-looking statements. Also, these forward-looking statements represent our
estimates and assumptions only as of the date on which they are made.
2
You should read this prospectus, together with the documents incorporated
by reference herein, and the applicable prospectus supplement completely and
with the understanding that our actual future results may be materially
different from those expressed in our forward-looking statements. We have no
obligation (other than as required by law) to update or revise any of our
forward-looking statements. We qualify all of our forward-looking statements by
these cautionary statements.
CENTURY ALUMINUM COMPANY
We are a leading North American producer of primary aluminum. Our
facilities produce value-added and standard-grade primary aluminum products. We
are the second largest primary aluminum producer in the United States, behind
Alcoa Inc., having produced over 1.1 billion pounds of primary aluminum in 2003
with net sales of $782.5 million.
We currently own:
- the Hawesville facility, located in Hawesville, Kentucky,
which began operations in 1970 and has an annual production
capacity of 538 million pounds of primary aluminum;
- the Ravenswood facility, located in Ravenswood, West Virginia,
which began operations in 1957 and has an annual production
capacity of 375 million pounds of primary aluminum; and
- a 49.7% ownership interest in the Mt. Holly facility, located
in Mt. Holly, South Carolina, which began operations in 1980
and contributes 243 million pounds to our overall annual
production capacity and is operated by Alcoa, which holds the
remaining 50.3% ownership interest.
Our strategic objectives are to grow our aluminum business by pursuing
opportunities to acquire primary aluminum reduction facilities that offer
favorable investment returns and lower our per unit production costs;
diversifying our geographic presence; and pursuing opportunities in bauxite
mining and alumina refining.
Our principal executive offices are located at 2511 Garden Road,
Building A, Suite 200, Monterey, California 93940. Our telephone number at that
address is (831) 642-9300. You may also obtain additional information about us
from our website, which is located at www.centuryaluminum.com. Information
contained in our website is not incorporated by reference in, and should not be
considered a part of, this prospectus.
USE OF PROCEEDS
Except as otherwise may be set forth in each prospectus supplement
accompanying this prospectus, we intend to use the net proceeds we receive from
sales of shares of our common stock pursuant to this prospectus for general
corporate purposes, including acquisitions, plant expansions and repayment of
indebtedness. We have filed a Current Report on Form 8-K dated March 16, 2004,
in which we reported that we entered into an agreement with Columbia Ventures
Corporation to purchase up to 100 percent of the shares of Nordural hf, an
Icelandic company that owns and operates a 90,000 metric-ton-per-year (mtpy)
primary aluminum plant at Grundartangi, Iceland. We intend to finance this
acquisition by offering shares under the registration statement of which this
prospectus forms a part. We will not receive any proceeds from the sale of
shares offered by the selling shareholders.
SELLING SHAREHOLDERS
Century Aluminum Employees Retirement Plan and the Century Aluminum of
West Virginia, Inc. Hourly Employees Pension Plan, may from time to time offer
and sell pursuant to this prospectus and the applicable prospectus supplement up
to an aggregate of 500,000 shares of our common stock.
During the quarter ended December 31, 2002, our board of directors
authorized the contribution of 100,000 shares of our common stock to the
retirement plan and 400,000 shares of our common stock to the pension plan.
Prior to our contribution, the plans owned no shares of our common stock. As of
March 15, 2004, the retirement plan owned 100,000 shares of our common stock,
representing 0.5% of our outstanding shares of common stock, and the pension
plan owned 400,000 shares of our common stock, representing 1.9% of our
outstanding shares of common stock.
3
The plans hold their assets in trusts formed for the benefit of all of
our salaried employees and the hourly employees of Century Aluminum of West
Virginia, Inc., respectively. The plans are intended to be tax-qualified under
the Internal Revenue Code of 1986, as amended. The plans are funded by our
contributions, which are held for the sole benefit of the plans' participants
and their beneficiaries and to pay proper expenses related to the administration
of the plans.
The retirement plan and the pension plan are each administered by a
retirement committee established by the board of directors of Century Aluminum
of West Virginia, a direct subsidiary of Century Aluminum Company. The
retirement committee has the responsibility, power and authority to direct the
investment, management and control of plan assets. The retirement committee has
appointed a trustee to act as fiduciary for the purpose of holding the funds and
property of the plans. The trustee acts at the direction of the retirement
committee. The retirement committee is currently comprised of David W. Beckley,
Gerald J. Kitchen, and Daniel J. Krofcheck, each of whom is an executive officer
of Century Aluminum Company.
The selling shareholders are pension plans subject to the rules of the
Employee Retirement Income Security Act of 1974, as amended, or ERISA. ERISA
provides that sales and exchanges between a plan and parties-in-interest to the
plan are prohibited without an exemption under the rules of ERISA. Each
prospective purchaser should consult with its counsel to satisfy itself that it
is not a party in interest to the selling plans or, if it is, that the ERISA
prohibited transaction rules will not apply.
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of 50,000,000 shares of common
stock, par value $0.01 per share, and 5,000,000 shares of preferred stock, par
value $0.01 per share. At March 15, 2004, we had outstanding 21,207,467 shares
of our common stock, 1,395,089 shares reserved for issuance upon conversion of
our convertible preferred stock and 1,549,806 shares reserved for issuance upon
the exercise of outstanding stock options and the vesting of outstanding
performance shares and restricted stock awards.
The following summary description does not purport to be complete and
is qualified in its entirety by reference to the Delaware General Corporation
Law, or DGCL, and our restated certificate of incorporation and amended and
restated bylaws, which are both incorporated by reference as exhibits to the
registration statement of which this prospectus is a part. See "Where You Can
Find More Information." Reference is made to the DGCL, our certificate of
incorporation and our bylaws for a detailed description of the provisions we
have summarized below.
COMMON STOCK
Holders of our common stock are entitled to one vote for each share
held on all matters submitted to a vote of stockholders, including the election
of directors. Our certificate of incorporation does not provide for cumulative
voting in the election of directors. Accordingly, holders of a majority of the
shares of our common stock entitled to vote in any election of directors may
elect all the directors standing for election. Subject to any preferential
rights of any outstanding series of preferred stock created by our board of
directors, the holders of our common stock are entitled to receive ratably such
dividends, if any, as may be declared from time to time by our board of
directors from funds which are legally available for that purpose. Upon the
liquidation, dissolution or winding up of Century Aluminum, the holders of our
common stock are entitled to receive ratably any of our net assets available
after the payment of all debts and other liabilities and subject to the prior
rights of any outstanding preferred stock. Holders of our common stock have no
preemptive, subscription, redemption or conversion rights. All shares of our
common stock currently outstanding and those to be issued upon the completion of
any offering under a prospectus supplement will be fully paid and nonassessable.
The rights, preferences and privileges of holders of our common stock are
subject to, and may be adversely affected by, the rights of the holders of
shares of any series of our preferred stock which are currently outstanding or
which we may designate and issue in the future.
PREFERRED STOCK
Under our certificate of incorporation, our board of directors is
authorized to issue up to 5,000,000 shares of preferred stock without any vote
or action by the holders of our common stock. Our board of directors may issue
preferred stock in one or more series and determine for each series the dividend
rights, conversion rights, voting
4
rights, redemption rights, liquidation preferences, sinking fund terms and the
number of shares constituting that series, as well as the designation thereof.
Depending upon the terms of preferred stock established by our board of
directors, any or all of the preferred stock could have preference over the
common stock with respect to dividends and other distributions and upon the
liquidation of Century Aluminum Company. In addition, issuance of any shares of
preferred stock with voting powers may dilute the voting power of the
outstanding common stock.
Convertible preferred stock
We issued 500,000 shares of our 8.0% cumulative convertible preferred
stock to an affiliate of Glencore International AG in April 2001 for a cash
purchase price of $25.0 million. The convertible preferred stock has a par value
per share of $0.01 and a liquidation preference of $50 per share. The
convertible preferred stock ranks junior to our 11 3/4% senior secured first
mortgage notes due 2008, borrowings under our $100.0 million senior secured
revolving credit facility, and all of our other existing and future debt
obligations.
The purchase agreement for the preferred stock contains customary
indemnification provisions. Following is a summary of the principal terms of the
convertible preferred stock.
- Dividends. The holders of the convertible preferred stock are
entitled to receive fully cumulative cash dividends at the
rate of 8.0% per annum per share accruing daily and payable
when declared quarterly in arrears.
- Optional conversion. Each share of convertible preferred stock
may be converted at any time, at the option of the holder,
into shares of our common stock, at a price of $17.92, subject
to adjustment for stock dividends, stock splits and other
specified corporate actions.
- Voting rights. The holders of convertible preferred stock have
limited voting rights to approve: (1) any action by us which
would adversely affect or alter the preferences and special
rights of the convertible preferred stock, (2) the
authorization of any class of stock ranking senior to, prior
to or ranking equally with the convertible preferred stock,
and (3) any reorganization or reclassification of our capital
stock or merger or consolidation of Century Aluminum.
- Optional redemption. After April 2, 2004, we may redeem the
convertible preferred stock at our option for cash at a price
of $52 per share, plus unpaid dividends to the date of
redemption, declining ratably each year thereafter to $50 at
the end of the eighth year.
- Transferability. Our convertible preferred stock is freely
transferable in a private offering or any other transaction
which is exempt from, or not subject to, the registration
requirements of the Securities Act and any applicable state
securities laws.
- Limits on common stock dividends and redemptions and
dividends. We are prohibited from declaring any cash dividend
or making any cash distribution on our common stock, and are
generally unable to redeem, purchase or otherwise acquire any
of our common stock, until we have paid all dividends on our
convertible preferred stock.
CERTAIN PROVISIONS THAT MAY HAVE AN ANTI-TAKEOVER EFFECT
The provisions of our certificate of incorporation and bylaws and the
DGCL summarized in the following paragraphs may have an anti-takeover effect and
may delay, defer or prevent a tender offer or takeover attempt, including those
attempts that might result in a premium over the market price for the shares
held by our stockholders.
Issuance of preferred stock. Our certificate of incorporation provides
our board of directors with the authority to issue shares of preferred stock and
to set the voting rights, preferences and other terms thereof.
Business combinations. In addition to any affirmative vote required by
law, our certificate of incorporation requires either: (1) the approval of a
majority of the disinterested directors, (2) the approval of the holders of at
least two-thirds of the aggregate voting power of the outstanding voting shares
of Century Aluminum, voting as a class, or (3) the satisfaction of certain
minimum price requirements and other procedural requirements, as preconditions
to
5
certain business combinations with, in general, a person who is the
beneficial owner of 10% or more of our outstanding voting stock.
Classified board. Our certificate of incorporation provides for a
classified board of directors consisting of three classes as nearly equal in
size as is practicable. Each class holds office until the third annual meeting
for election of directors following the election of such class.
Number of directors; removal; vacancies. Our certificate of
incorporation provides that the number of directors shall not be less than 3 nor
more than 11. The directors shall have the exclusive power and right to set the
exact number of directors within that range from time to time by resolution
adopted by vote of a majority of the entire board of directors. The board can
only be increased over 11 through amendment of our restated certificate of
incorporation which requires a resolution of the board and the affirmative vote
of the holders of at least two-thirds of the aggregate voting power of the
outstanding shares of stock generally entitled to vote, voting as a class.
Our certificate of incorporation and bylaws further provide that
directors may be removed only for cause and then only by the affirmative vote of
the holders of at least two-thirds of the outstanding shares of stock generally
entitled to vote, voting as a class. In addition, interim vacancies or vacancies
created by an increase in the number of directors may be filled only by a
majority of directors then in office. The foregoing provisions would prevent
stockholders from removing incumbent directors without cause and filling the
resulting vacancies with their own nominees.
No stockholder action by written consent; special meetings. Our
certificate of incorporation generally provides that stockholder action may be
taken only at an annual or special meeting of stockholders and cannot be taken
by written consent in lieu of a meeting. Our certificate of incorporation and
bylaws also provide that, subject to the rights of the holders of any class or
series of our preferred stock, special meetings of the stockholders may only be
called pursuant to a resolution adopted by a majority of the board of directors
or the executive committee. Stockholders are not permitted to call a special
meeting or to require the board or executive committee to call a special meeting
of stockholders. Any call for a meeting must specify the matters to be acted
upon at the meeting. Stockholders are not permitted to submit additional matters
or proposals for consideration at any special meeting.
Stockholder proposals. The bylaws establish an advance notice procedure
for nominations (other than by or at the direction of our board of directors) of
candidates for election as directors at, and for proposals to be brought before,
an annual meeting of stockholders. Subject to any other applicable requirements,
the only business that may be conducted at an annual meeting is that which has
been brought before the meeting by, or at the direction of, the board or by a
stockholder who has given to the secretary of Century Aluminum timely written
notice, in proper form, of the stockholder's intention to bring that business
before the meeting. In addition, only persons who are nominated by, or at the
direction of, the board, or who are nominated by a stockholder who has given
timely written notice, in proper form, to the secretary prior to a meeting at
which directors are to be elected, will be eligible for election as directors.
Amendment of certain certificate provisions or bylaws. Our certificate
of incorporation requires the affirmative vote of the holders of at least
two-thirds of the aggregate voting power of the outstanding shares of our stock,
voting as a class, generally entitled to vote to amend the foregoing provisions
of our certificate of incorporation and the bylaws.
Section 203 of the DGCL. We are subject to Section 203 of the DGCL,
which generally prohibits a publicly-held Delaware corporation from engaging in
a "business combination" with an "interested stockholder" for a period of three
years after the date of the transaction in which the person became an interested
stockholder, unless: (1) prior to such date the board of directors of the
corporation approved either the business combination or the transaction in which
the person became an interested stockholder, (2) upon consummation of the
transaction that resulted in the stockholder becoming an interested stockholder,
the interested stockholder owned at least 85% of the outstanding stock of the
corporation, excluding shares owned by directors who are also officers of the
corporation and shares owned by certain employee stock plans, or (3) on or after
such date the business combination is approved by the board of directors of the
corporation and by the affirmative vote of at least two-thirds of the
outstanding voting stock of the corporation that is not owned by the interested
stockholder. A "business combination" generally includes mergers, asset sales
and similar transactions between the corporation and the interested stockholder,
and other
6
transactions resulting in a financial benefit to the interested stockholder. An
"interested stockholder" is a person who, together with affiliates and
associates, owns 15% or more of the corporation's voting stock or who is an
affiliate or associate of the corporation and, together with his affiliates and
associates, has owned 15% or more of the corporation's voting stock within three
years.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for our common stock is Computershare
Investor Services, LLC.
PLAN OF DISTRIBUTION
We or the selling shareholders may sell the shares of common stock
described in this prospectus from time to time in one or more of the following
ways:
- to or through underwriters or dealers;
- directly to one or more purchasers;
- through agents; or
- through a combination of any of such methods of sale.
The prospectus supplement with respect to the offered shares of common
stock will describe the terms of the offering, including:
- the name or names of any agents or underwriters and the number
of shares purchased by each of them;
- the purchase price of such shares and any proceeds to us from
such sale;
- any underwriting discounts and other items constituting
underwriters' or agents' compensation;
- any initial public offering price;
- any discounts or concessions allowed or reallowed or paid to
dealers; and
- any securities exchanges on which such shares may be listed.
If underwriters are used in the sale, the shares will be acquired by the
underwriters for their own account and may be resold from time to time in one or
more transactions, either:
- at a fixed public offering price or prices;
- at market prices prevailing at the time of sale;
- at varying prices determined at the time of sale; or
- at negotiated prices.
The shares of common stock may be offered to the public either through
underwriting syndicates represented by one or more managing underwriters or
directly by one or more of such firms. The obligations of the underwriters to
purchase the shares of common stock will be subject to various conditions
precedent, and the underwriters will be obligated to purchase all of the shares
offered by the applicable prospectus supplement if any of such shares are
purchased. Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
We or the selling shareholders may also sell shares of common stock
directly or through agents designated from time to time. Any agent involved in
the offering and sale of the offered shares of common stock will be named in the
applicable prospectus supplement. Any commissions payable by us or by the
selling shareholders to such agent will be set forth in the applicable
prospectus supplement. Unless otherwise indicated in such prospectus supplement,
any such agent is acting on a best efforts basis for the period of its
appointment.
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If so indicated in a prospectus supplement, we or the selling
shareholders will authorize agents, underwriters or dealers to solicit offers by
certain purchasers to purchase shares of common stock pursuant to delayed
delivery contracts providing for payment and delivery on a future date specified
in such prospectus supplement. The contracts will be subject only to those
conditions set forth in the prospectus supplement, and the prospectus supplement
will set forth any commissions we pay for solicitation of these contracts.
Agents and underwriters may be entitled under agreements entered into
with us or the selling shareholders to indemnification against certain civil
liabilities, including liabilities under the Securities Act, or to contribution
with respect to payments which the agents or underwriters may be required to
make in respect thereof. Agents and underwriters may be customers of, may engage
in transactions with, or perform services for, us or the selling shareholders in
the ordinary course of business.
LEGAL MATTERS
The validity of the common stock offered through this prospectus will
be passed upon for us by Curtis, Mallet-Prevost, Colt & Mosle LLP, New York, New
York. Roman A. Bninski, a partner of Curtis, Mallet-Prevost, Colt & Mosle LLP,
is a director of Century Aluminum Company and beneficially owns 23,500 shares of
our common stock. Curtis, Mallet-Prevost, Colt & Mosle LLP, with our knowledge
and consent, represents Glencore International AG from time to time with respect
to specific matters as to which the firm has been consulted by Glencore
International AG.
EXPERTS
Our financial statements and the related financial statement schedules
incorporated by reference in this prospectus from our Annual Report on Form 10-K
for the year ended December 31, 2003 have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their reports, which are incorporated herein
by reference, and have been so incorporated in reliance upon the reports of such
firm given upon their authority as experts in accounting and auditing.
The financial statements of Nordural hf incorporated by reference in
this prospectus to the Current Report on Form 8-K dated March 16, 2004 have been
so incorporated in reliance on the report of PricewaterhouseCoopers hf,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
8
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses in connection with
the issuance and distribution of the securities being registered. All of the
amounts shown are estimated except the SEC registration fee and the Nasdaq
additional listing fee.
SEC registration fee................................... $ 39,705
Nasdaq additional listing fee.......................... 45,000
Legal fees and expenses................................ 50,000
Printing costs......................................... 15,000
Accounting fees and expenses........................... 10,000
Miscellaneous expenses................................. 5,000
--------
Total........................................ $164,705
========
Century Aluminum Company will bear all expenses shown above, and the
selling shareholders will not bear any portion of these expenses.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Century Aluminum Company is a Delaware corporation. In accordance with
Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL"), the
restated certificate of incorporation of Century Aluminum Company contains a
provision to limit the personal liability of our directors for violations of
their fiduciary duties. This provision eliminates each director's liability to
Century Aluminum Company or its stockholders for monetary damages for breach of
fiduciary duties as a director, except for liability: (i) for any breach of the
director's duty of loyalty to Century Aluminum Company or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the DGCL providing for
liability of directors for unlawful payment of dividends or unlawful stock
purchase or redemption, or (iv) for any transaction from which the director
derived an improper personal benefit. The effect of this provision is to
eliminate the personal liability of directors for monetary damages for actions
involving a breach of their fiduciary duty of care, including such actions
involving gross negligence.
Section 145 of the DGCL provides that a corporation may indemnify any
person, including officers and directors, who are, or are threatened to be made,
parties to any threatened, pending or completed legal action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of such corporation), by reason of the fact that
such person was an officer, director, employee or agent of such corporation, or
is or was serving at the request of such corporation as a director, officer,
employee or agent of such corporation, as a director, officer, employee or agent
of another corporation. The indemnity may include expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding,
provided such officer director, employee or agent acted in good faith and in a
manner he reasonably believed to be in or not opposed to the corporation's best
interests and, for criminal proceedings, had no reasonable cause to believe that
his conduct was unlawful. A Delaware corporation may indemnify officers and
directors in an action by or in the right of the corporation under the same
conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable to the corporation.
Where an officer or director is successful on the merits or otherwise in defense
of any action referred to above, the corporation must indemnify him against the
expenses which such officer or director actually
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or reasonably incurred. The restated certificate of incorporation for Century
Aluminum Company provides for indemnification to fullest extent permitted by
Section 145 of the DGCL of all persons who we have the power to indemnify under
such section. The restated by-laws for Century Aluminum Company provide for
indemnification of officers and directors to the fullest extent permitted by the
DGCL.
In addition, we maintain officers' and directors' liability insurance
which insures against liabilities that our officers and directors may incur in
such capacities.
ITEM 16 EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
1.1 Form of Underwriting Agreement.*
3.1 Restated Certificate of Incorporation of Century Aluminum
Company, as amended (incorporated by reference to Century
Aluminum Company's Registration Statement on Form S-1, as
amended, Registration No. 33-95486 and its Quarterly Report
on Form 10-Q for the quarter ended June 30, 2003).
3.2 Amended and Restated Bylaws of Century Aluminum Company
(incorporated by reference to Century Aluminum Company's
Quarterly Report on Form 10-Q for the quarter ended June 30,
2003).
5.1 Opinion of Curtis, Mallet-Prevost, Colt & Mosle LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of PricewaterhouseCoopers hf.
23.3 Consent of Curtis, Mallet-Prevost, Colt & Mosle LLP (included
in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
*To be filed under Form 8-K.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the SEC pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in
the effective registration statement;
(iii) to include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (l)(i) and (l)(ii) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to
II-2
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement;
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
The undersigned registrant further undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Monterey, State of California, on March 16, 2004.
Century Aluminum Company
By: /s/ Craig A. Davis
-------------------------------
Name: Craig A. Davis
Title: Chairman and Chief Executive Officer
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POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated. Each person whose signature appears
below hereby authorizes David W. Beckley and Gerald J. Kitchen and each of them,
with full power of substitution, to execute in the name and on behalf of such
person any amendment or any post-effective amendment to this Registration
Statement and any and all additional registration statements pursuant to Rule
462(b) of the Securities Act of 1933, as amended, and to file the same, with any
exhibits thereto and other documents in connection therewith, making such
changes in this Registration Statement as the Registrant deems appropriate, and
appoints David W. Beckley and Gerald J. Kitchen and each of them, with full
power of substitution, attorney-in-fact to sign any amendment and any
post-effective amendment to this Registration Statement and to file the same,
with any exhibits thereto and other documents in connection therewith.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Craig A. Davis Chairman and Chief Executive Officer March 16, 2004
----------------------------------------
Craig A. Davis
/s/ William R. Hampshire Vice-Chairman March 16, 2004
----------------------------------------
William R. Hampshire
/s/ David W. Beckley Executive Vice President and March 16, 2004
---------------------------------------- Chief Financial Officer (Principal Financial
David W. Beckley Officer and Principal Accounting Officer)
/s/ Roman A. Bninski Director March 16, 2004
----------------------------------------
Roman A. Bninski
/s/ John C. Fontaine Director March 16, 2004
----------------------------------------
John C. Fontaine
/s/ John P. O'Brien Director March 16, 2004
----------------------------------------
John P. O'Brien
/s/ Stuart M. Schreiber Director March 16, 2004
----------------------------------------
Stuart M. Schreiber
/s/ Willy R. Strothotte Director March 16, 2004
----------------------------------------
Willy R. Strothotte
/s/ Robert E. Fishman Director March 16, 2004
----------------------------------------
Robert E. Fishman
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------ ----------------------
1.1 Form of Underwriting Agreement.*
3.1 Restated Certificate of Incorporation of Century Aluminum
Company, as amended (incorporated by reference to Century
Aluminum Company's Registration Statement on Form S-1, as
amended, Registration No. 33-95486 and its Quarterly Report
on Form 10-Q for the quarter ended June 30, 2003).
3.2 Amended and Restated Bylaws of Century Aluminum Company
(incorporated by reference to Century Aluminum Company's
Quarterly Report on Form 10-Q for the quarter ended June 30,
2003).
3.3 Certificate of Designation for Century Aluminum Company's 8%
Cumulative Convertible Preferred Stock, par value $.01 per
share, dated March 28, 2001 (incorporated by reference to
Century Aluminum Company's Current Report on Form 8-K dated
April 17, 2001 and Century Aluminum Company's Quarterly Report
on Form 10-Q for the quarter ended March 31, 2001).
5.1 Opinion of Curtis, Mallet-Prevost, Colt & Mosle LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of PricewaterhouseCoopers hf.
23.3 Consent of Curtis, Mallet-Prevost, Colt & Mosle LLP (included
in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
---------
*To be filed under Form 8-K.
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