Item 9A. Controls and Procedures
Item 9A. Controls and Procedures
Disclosure Controls and Procedures
As of December 31, 2021, we carried out an evaluation, under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, of the effectiveness of our disclosure controls and procedures. Based upon that evaluation, our management, including the Chief Executive Officer and Chief Financial Officer, concluded that our disclosure controls and procedures were effective.
Internal Control over Financial Reporting
Management is responsible for establishing and maintaining an adequate system of internal control over financial reporting for the Company. This system is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. Because of its inherent limitations, a system of internal control over financial reporting can provide only reasonable assurance and may not prevent or detect misstatements. Further, because of changes in conditions, effectiveness of internal control over financial reporting may vary over time. Our system of internal control contains self-monitoring mechanisms, and actions are taken to correct deficiencies as they are identified.
As required by Section 404 of the Sarbanes-Oxley Act, management conducted an evaluation of the effectiveness of the system of internal control over financial reporting for the year ended December 31, 2021. Management’s evaluation was based on the framework in Internal Control - Integrated Framework (2013) issued by the Committee of Sponsoring Organizations (COSO) of the Treadway Commission. Based on this evaluation, management concluded that our system of internal control over financial reporting was effective as of December 31, 2021. The effectiveness of our internal control over financial reporting has been audited by Deloitte & Touche LLP, an independent registered public accounting firm.
Changes in Internal Control over Financial Reporting
During the three months ended December 31, 2021, there were no changes in our internal control over financial reporting that materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Item 9B. Other Information
Disclosure Pursuant to Section 219 of the Iran Threat Reduction & Syria Human Rights Act
Section 219 of the Iran Threat Reduction and Syria Human Rights Act of 2012 (“ITRA”), effective August 10, 2012, added a new subsection (r) to Section 13 of the Exchange Act, which requires issuers that file periodic reports with the SEC to disclose in their annual and quarterly reports whether, during the reporting period, they or any of their “affiliates” (as defined in Rule 12b-2 under the Exchange Act) have knowingly engaged in specified activities or transactions relating to Iran, including activities not prohibited by U.S. law and conducted outside the U.S. by non-U.S. affiliates in compliance with applicable laws. Issuers must also file a notice with the SEC if any disclosable activity under ITRA has been included in an annual or quarterly report.
Because the SEC defines the term “affiliate” broadly, our largest stockholder may be considered an affiliate of the Company despite the fact that the Company has no control over its largest stockholder’s actions or the actions of its affiliates. As such, pursuant to Section 13(r)(1)(D)(iii) of the Exchange Act, the Company hereby discloses the following information provided by our largest stockholder regarding transactions or dealings with entities controlled by the Government of Iran (“the GOI”):
During the year ended December 31, 2021, non-U.S. affiliates of the largest stockholder of the Company (“the non-U.S. Stockholder Affiliates”) entered into sales contracts for agricultural products with, or for delivery to or from Iranian entities wholly or majority owned by the GOI. The non-U.S. Stockholder Affiliates performed their obligations under the contracts in compliance with applicable sanction laws and, where required, with the necessary prior approvals by the relevant governmental authorities.
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The gross revenue of the non-U.S. Stockholder Affiliates related to the contracts did not exceed the value of USD $1.671 billion for the year ended December 31, 2021.
The non-U.S. Stockholder Affiliates do not allocate net profit on a country-by-country or activity-by-activity basis, but estimate that the net profit attributable to the contracts would not exceed a small fraction of the gross revenue from such contracts. It is not possible to determine accurately the precise net profit attributable to such contracts.
The contracts disclosed above do not violate applicable sanctions laws administered by the U.S. Department of the Treasury, Office of Foreign Assets Control, and are not the subject of any enforcement action under Iran sanction laws.
The non-U.S. Stockholder Affiliates expect to continue to engage in similar activities in the future in compliance with applicable economic sanctions and in conformity with U.S. secondary sanctions.
The Company and its global subsidiaries had no transactions or activities requiring disclosure under ITRA, nor were we involved in the transactions described in this section. As of the date of this report, the Company is not aware of any other activity, transaction or dealing by it or any of its affiliates during the year ended December 31, 2021 that requires disclosure in this report under Section 13(r) of the Exchange Act.
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PART III
Item 10. Directors, Executive Officers and Corporate Governance
This Item is incorporated by reference to our definitive proxy statement on Schedule 14A, which will be filed by April 30, 2022, or if our proxy statement is not filed by that date, will be included in an amendment to this Report on Form 10-K, which will be filed by April 30, 2022.
Item 11. Executive Compensation
This Item is incorporated by reference to our definitive proxy statement on Schedule 14A, which will be filed by April 30, 2022, or if our proxy statement is not filed by that date, will be included in an amendment to this Report on Form 10-K, which will be filed by April 30, 2022.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
This Item is incorporated by reference to our definitive proxy statement on Schedule 14A, which will be filed by April 30, 2022, or if our proxy statement is not filed by that date, will be included in an amendment to this Report on Form 10-K, which will be filed by April 30, 2022.
Item 13. Certain Relationships and Related Transactions and Director Independence
This Item is incorporated by reference to our definitive proxy statement on Schedule 14A, which will be filed by April 30, 2022, or if our proxy statement is not filed by that date, will be included in an amendment to this Report on Form 10-K, which will be filed by April 30, 2022.
Item 14. Principal Accountant Fees and Services
This Item is incorporated by reference to our definitive proxy statement on Schedule 14A, which will be filed by April 30, 2022, or if our proxy statement is not filed by that date, will be included in an amendment to this Report on Form 10-K, which will be filed by April 30, 2022.
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PART IV
Item 15. Exhibits and Financial Statement Schedules
(a) (1) List of Financial Statements
The following consolidated financial statements of Century Aluminum Company and the Independent Auditors’ Reports are included in Part II, Item 8 of this Form 10-K:
Reports of Independent Registered Public Accounting Firm
Consolidated Statements of Operations for the years ended December 31, 2021, 2020 and 2019
Consolidated Statements of Comprehensive Income (Loss) for the years ended December 31, 2021, 2020 and 2019
Consolidated Balance Sheets as of December 31, 2021 and 2020
Consolidated Statements of Shareholders’ Equity for the years ended December 31, 2021, 2020 and 2019
Consolidated Statements of Cash Flows for the years ended December 31, 2021, 2020 and 2019
Notes to the consolidated financial statements
(a) (2) List of financial Statement Schedules
None. All required information has been included in the consolidated financial statements or notes thereto.
(a) (3) List of Exhibits
Exhibit Index
Incorporated by Reference
Exhibit Number Description of Exhibit Form File No. Filing Date Filed Herewith
3.1 Amended and Restated Certificate of Incorporation of Century Aluminum Company.
10-Q 001-34474 November 9, 2012
3.2 Amended and Restated Bylaws of Century Aluminum Company.
8-K 001-34474 December 6, 2019
4.1 Form of Stock Certificate.
10-K 001-34474 February 28, 2018
4.2 Certificate of Designation, Preferences and Rights of Series A Convertible Preferred Stock of Century Aluminum Company, dated July 7, 2008.
8-K 000-27918 July 8, 2008
4.3 Indenture for Century Aluminum Company's 2.75% Convertible Senior Notes due 2028, dated as of April 9, 2021, by and among Century Aluminum Company, as issuer, and Wilmington Trust, National Association, as trustee
8-K 001-34474 April 12, 2021
4.4 Form of Note for the Indenture for Century Aluminum Company's 2.75% C onvertible Senior Notes due 2028, dated as of April 9, 2021, between Century Aluminum Company, as issuer, and Wilmington Trust Company, as trustee
8-K 001-34474 April 12, 2021
4.5 Indenture for Century Aluminum Company's 7.5% Senior Secured Notes due 2028, dated as of April 14, 2021, by and among Century Aluminum Company, the guarantors party thereto and Wilmington Trust, National Association, as trustee and noteholder collateral agent
8-K 001-34474 April 15, 2021
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4.6 Form of 7. 5% Note for the Indenture for Century Aluminum Company's 7.5% Senior Secured Notes due 2028, dated as of April 14, 2021, by and among Century Aluminum Company, the guarantors party thereto and Wilmington Trust, National Association, as trustee and noteholder collateral agent
8-K 001-34474 April 15, 2021
4.7 Description of Common Stock
10-K 001-34474 February 27, 2020
10.1 Second Lien Pledge and Security Agreement, dated as of April 14 , 20 21 , by and among Century Aluminum Company, the other Grantors (as defined therein) and Wilmington Trust, National Association, as collateral agent of the 7.5 % Senior Secured Notes due 202 8
8-K 001-34474 April 15, 2021
10.2 Collateral Agency Agreement, dated as of April 14, 2021, by and among Century Aluminum Company, the other Grantors party thereto and Wilmington Trust, National Association, as trustee and collateral agent.
8-K 001-34474 April 15, 2021
10.3 Second Amended and Restated Loan and Security Agreement, dated as of May 16, 2018, among Century Aluminum Company, Century Aluminum of South Carolina, Inc., Century Aluminum of Kentucky General Partnership, NSA General Partnership and Century Aluminum Sebree LCC, as borrowers, and Wells Fargo Capital Finance, LLC, as agent and lender.
10-Q 001-34474 November 2, 2018
10.4 Amendment No. 1, dated as of June 17, 2020 to the Second Amended and Restated Loan and Security Agreement, dated as of May 16, 2018, among Century Aluminum Company, Century Aluminum of South Carolina, Inc., Century Aluminum of Kentucky General Partnership, NSA General Partnership and Century Aluminum Sebree LCC, as borrowers, and Wells Fargo Capital Finance, LLC, as agent and lender.
8-K 001-34474 June 18, 2020
10.5 Amendment No. 2, dated as of June 15, 2021 to the Second Amended and Restated Loan and Security Agreement, dated as of May 16, 2018, among Century Aluminum Company, Century Aluminum of South Carolina, Inc., Century Aluminum of Kentucky General Partnership, NSA General Partnership and Century Aluminum Sebree LCC, as borrowers, and Wells Fargo Capital Finance, LLC, as agent and lender.
10-Q 001-34474 August 5, 2021
10.6 Amendment No. 3, dated as of December 23, 2021 to the Second Amended and Restated Loan and Security Agreement, dated as of May 16, 2018, among Century Aluminum Company, Century Aluminum of South Carolina, Inc., Century Aluminum of Kentucky General Partnership, NSA General Partnership and Century Aluminum Sebree LCC, as borrowers, and Wells Fargo Capital Finance, LLC, as agent and lender.
8-K 001-34474 December 27, 2021
10.7 Revolving Credit Facility, dated November 27, 2013, between Nordural Grundartangi ehf, as borrower, and Landsbankinn hf.
10-K 001-34474 March 14, 2014
10.8 Amendment to Revolving Credit Facility, dated April 14, 2016, between Nordural Grundartangi ehf, as borrower, and Landsbankinn hf.
8-K 001-34474 April 15, 2016
10.9 Amendment to Revolving Credit Facility, dated December 15, 2017, between Nordural Grundartangi ehf, as borrower, and Landsbankinn hf
10-K 001-34474 February 28, 2018
10.10 Amendment to Revolving Credit Facility, dated October 2, 2019, between Nordural Grundartangi ehf, as borrower, and Landsbankinn hf
10-Q 001-34474 November 8, 2019
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10.11 Amendment to Revolving Credit Facility, dated September 20, 2021, between Nordural Grundartangi ehf, as borrower, and Landsbankinn hf
10-Q 001-34474 November 5, 2021
10.12 Amendment to Revolving Credit Facility, dated February 4, 2022, between Nordural Grundartangi ehf, as borrower and Landsban kinn hf
8-K 001-34474 February 9, 2022
10.13 Amendment Agreement to General Bond, dated as of November 27, 2013, by and between Nordural Grundartangi ehf and Landsbankinn hf.
10-K 001-34474 March 14, 2014
10.14 Term Facility Agreement, dated as of November 2, 2021, by and between Nordural Grundartangi ehf and Arion Bank hf.
8-K 001-34474 November 3, 2021
10.15 Form of Capped Call Confirmation
8-K 001-34474 April 12, 2021
10.16 Stock Purchase Agreement, dated as of July 7, 2008, by and between Century Aluminum Company and Glencore Investment Pty Ltd.
8-K 000-27918 July 8, 2008
10.17 Standstill and Governance Agreement, dated as of July 7, 2008, by and between Century Aluminum Company and Glencore AG.
8-K 000-27918 July 8, 2008
10.18 Amendment to Standstill and Governance Agreement, dated January 27, 2009, by and between Century Aluminum Company and Glencore AG.
10-K 001-34474 March 16, 2010
10.19 Registration Rights Agreement, dated as of July 7, 2008, by and between Century Aluminum Company and Glencore Investment Pty Ltd.
8-K 000-27918 July 8, 2008
10.20 Century Aluminum Company Amended and Restated Executive Severance Plan, adopted June 23, 2014.*
8-K 001-34474 June 27, 2014
10.21 Century Aluminum Company Amended and Restated Supplemental Retirement Income Benefit Plan.*
10-Q 000-27918 August 10, 2009
10.22 First Amendment of the Century Aluminum Company Amended and Restated Supplemental Retirement Income Benefit Plan.*
10-K 001-34474 March 16, 2010
10.23 Second Amendment of the Century Aluminum Company Amended and Restated Supplemental Retirement Income Benefit Plan, adopted June 23, 2014.*
8-K 001-34474 June 27, 2014
10.24 Century Aluminum Company Annual Incentive Plan.*
10-K 001-34474 March 2, 2015
10.25 Century Aluminum Company Amended and Restated Stock Incentive Plan, adopted June 23, 2014.*
8-K 001-34474 June 27, 2014
10.26 Century Aluminum Company Amended and Restated Long-Term Incentive Plan, adopted March 22, 2016.*
8-K 001-34474 March 24, 2016
10.27 Century Aluminum Company Amended and Restated Stock Incentive Plan, adopted June 3, 2019.*
8-K 001-34474 June 6, 2019
10.28 Century Aluminum Company Restoration Plan, adopted December 8, 2015.*
8-K 001-34474 December 14, 2015
10.29 Form of Time-Vesting Performance Share Unit Award Agreement for awards under the 2014 Amended and Restated Stock Incentive Plan.*
8-K 001-34474 June 27, 2014
10.30 Form of Performance Unit Award Agreement for awards under the 2014 Amended and Restated Stock Incentive Plan.*
8-K 001-34474 March 24, 2016
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10.31 Form of Time-Vesting Share Unit Award Agreement for awards under the 2019 Amended and Restated Stock Incentive Plan.*
10-K 001-34474 February 27, 2020
10.32 Form of Performance Unit Award Agreement for awards under the 2019 Amended and Restated Stock Incentive Plan.*
10-K 001-34474 February 27, 2020
10.33 Form of Independent Non-Employee Director Annual Equity-Grant Time-Vesting Share Unit Award Agreement.*
10-K 001-34474 February 27, 2020
10.34 Form of Independent Non-Employee Director Annual Retainer Fee Payment Time-Vesting Share Unit Award Agreement.*
10-K 001-34474 February 27, 2020
10.35 Form of Indemnification Agreement.*
8-K 001-34474 December 5, 2014
10.36 Jesse E. Gary Offer Letter, dated May 17, 2021 *
8-K 001-34474 May 17, 2021
10.37 Retirement and Transition Agreement, dated May 17, 2021, between Century Aluminum Company and Michael A. Bless *
8-K 001-34474 May 17, 2021
21.1 List of Subsidiaries
X
23.1 Consent of Deloitte & Touche LLP
X
24.1 Powers of Attorney
X
31.1 Rule 13a-14(a)/15d-14(a) Certification of the Principal Executive Officer
X
31.2 Rule 13a-14(a)/15d-14(a) Certification of the Principal Financial Officer
X
32.1 Section 1350 Certification (pursuant to Sarbanes-Oxley Section 906) by Principal Executive Officer
X
32.2 Section 1350 Certification (pursuant to Sarbanes-Oxley Section 906) by Principal Financial Officer
X
101.INS XBRL Instance Document (the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document)
101.SCH XBRL Taxonomy Extension Schema X
101.CAL XBRL Taxonomy Extension Calculation Linkbase X
101.DEF XBRL Taxonomy Extension Definition Linkbase X
101.LAB XBRL Taxonomy Extension Label Linkbase X
101.PRE XBRL Taxonomy Extension Presentation Linkbase X
104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
* Management contract or compensatory plan.
** Confidential Information was omitted from this exhibit pursuant to a request for confidential treatment filed separately with the SEC.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Century Aluminum Company
By:
/s/ JESSE E. GARY
Jesse E. Gary
President and Chief Executive Officer (Principal Executive Officer)
Dated: February 25, 2022
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Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the date indicated.
Signature Title Date
/s/ JESSE E. GARY President and Chief Executive Officer and Director (Principal Executive Officer) February 25, 2022
Jesse E. Gary
* Chairman February 25, 2022
Andrew Michelmore
* Director February 25, 2022
Jarl Berntzen
* Director February 25, 2022
Errol Glasser
* Director February 25, 2022
Wilhelm van Jaarsveld
* Director February 25, 2022
Jennifer Bush
/s/ CRAIG C. CONTI Executive Vice President and Chief Financial Officer
(Principal Financial Officer) February 25, 2022
Craig C. Conti
/s/ ROBERT HOFFMAN Vice President and Chief Accounting Officer
(Principal Accounting Officer) February 25, 2022
Robert Hoffman
*By: /s/ JOHN DEZEE
John DeZee, as Attorney-in-fact
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