-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, UjJvDyL7xuXtG948DvYWF1gjS5HWfM1Bilvaeb9qfq46Xk1WrzmkVg+Khd3it01D ijDmhwVUxmk+41Voq469zg== 0000950172-03-002075.txt : 20030623 0000950172-03-002075.hdr.sgml : 20030623 20030623172336 ACCESSION NUMBER: 0000950172-03-002075 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20030623 ITEM INFORMATION: Changes in control of registrant ITEM INFORMATION: Other events FILED AS OF DATE: 20030623 FILER: COMPANY DATA: COMPANY CONFORMED NAME: STILLWATER MINING CO /DE/ CENTRAL INDEX KEY: 0000931948 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS METAL ORES [1090] IRS NUMBER: 810480654 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-13053 FILM NUMBER: 03753889 BUSINESS ADDRESS: STREET 1: 1200 SEVENTEETH STREET STREET 2: SUITE 900 CITY: DENVER STATE: CO ZIP: 80202 BUSINESS PHONE: 3039782525 MAIL ADDRESS: STREET 1: 1200 SEVEENTH STREET STREET 2: SUITE 900 CITY: DENVER STATE: CO ZIP: 80202 8-K 1 s418720.txt FORM 8-K SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 _________________ FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 _________________ Date of Report: June 23, 2003 (Date of earliest event reported) Stillwater Mining Company (Exact Name of Registrant as Specified in Charter) Delaware 0-7704 13-1681234 - ------------------------------------------------------------------------------- (State or Other Jurisdiction (Commission File Number) (IRS Employer of Incorporation) Identification No.) 536 East Pike Avenue, Columbus, Montana 59019 --------------------------------------------- (Address of Principal Executive Offices) (406) 322-8700 ---------------------------------------------------- (Registrant's telephone number, including area code) Item 1. Changes in Control of Registrant On June 23, 2003, Stillwater Mining Company (the "Company") issued and sold 45,463,222 shares of its common stock to Norimet Limited, a company organized under the laws of England and Wales ("Norimet") and a wholly-owned subsidiary of MMC Norilsk Nickel, an open joint stock company organized under the laws of the Russian Federation ("Norilsk Nickel"), pursuant to the Stock Purchase Agreement, dated as of November 20, 2002, by and among the Company, Norimet and Norilsk Nickel. A copy of the Stock Purchase Agreement was included as Exhibit 10.1 to the Current Report on Form 8-K filed by the Company on November 21, 2002 and is incorporated herein by reference. The Company received consideration from Norimet comprised of approximately $100 million in cash and approximately 877,000 ounces of palladium. The aggregate value of the consideration was approximately $257 million as of June 20, 2003, the last trading day before the date hereof. Following the closing, Norimet and Norilsk Nickel beneficially own approximately 51% of the outstanding shares of the Company. In connection with the closing of the Norilsk Nickel transaction, pursuant to the Stock Purchase Agreement and the Stockholders Agreement (described in Item 5), Richard E. Gilbert, Apolinar Guzman and Stephen V. Kearney resigned from the Company's board of directors. Effective as of the closing date, the size of the board of directors was increased from 7 to 9 directors. Pursuant to the Stockholders Agreement, the following five persons nominated by Norimet and Norilsk Nickel were appointed to the Company's board of directors to fill the vacancies created by such expansion and such resignations: Craig L. Fuller, Steven S. Lucas, The Honorable Donald W. Riegle Jr., Todd D. Schafer and Jack E. Thompson. On June 23, 2003, the Company issued a press release regarding the closing of the stock purchase transaction. A copy of such press release is filed herewith as Exhibit 99.1 and is incorporated herein by reference. Item 5. Other Events In connection with the closing pursuant to the Stock Purchase Agreement, on June 23, 2003, the Company, Norilsk Nickel and Norimet entered into a Stockholders Agreement and the Company and Norimet entered into a Registration Rights Agreement. Copies of the Stockholders Agreement and Registration Rights Agreement are filed herewith as Exhibits 10.1 and 10.2, respectively, and are incorporated herein by reference. SIGNATURE Pursuant to the requirements of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. STILLWATER MINING COMPANY Date: June 23, 2003 By: /s/ John R. Stark --------------------------- Name: John R. Stark Title: Vice President, Secretary and General Counsel EXHIBITS 10.1 Stockholders Agreement, dated as of June 23, 2003, among Stillwater Mining Company, MMC Norilsk Nickel and Norimet Ltd. 10.2 Registration Rights Agreement, dated as of June 23, 2003, among Stillwater Mining Company and Norimet Ltd. 99.1 Press release issued on June 23, 2003 by Stillwater Mining Company. EX-10 3 s392239.txt EXHIBIT 10.1 Exhibit 10.1 STOCKHOLDERS AGREEMENT by and among STILLWATER MINING COMPANY, NORIMET LIMITED, and MMC NORILSK NICKEL dated as of June 23, 2003 TABLE OF CONTENTS Page ARTICLE I CERTAIN DEFINITIONS.............................................1 1.1 Defined Terms...............................................1 ARTICLE II CORPORATE GOVERNANCE...........................................4 2.1 Number and Composition......................................4 2.2 Buyer Directors.............................................4 2.3 Public Directors............................................5 2.4 Committees..................................................6 2.5 Quorum and Voting...........................................6 2.6 Related Party Transactions..................................6 2.7 Election of Certain Officers................................7 2.8 Meetings....................................................7 2.9 Director Fees...............................................8 2.10 Authority to Retain Advisors................................8 ARTICLE III REPRESENTATIONS AND WARRANTIES OF BUYER AND NORILSK NICKEL....8 3.1 Organization and Good Standing..............................8 3.2 Organizational Documents....................................8 3.3 Authority and Authorization.................................8 3.4 No Conflicts; No Consents or Approvals......................8 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF COMPANY......................8 4.1 Organization and Good Standing..............................9 4.2 Organizational Documents....................................9 4.3 Authority and Authorization.................................9 4.4 No Conflicts; No Consents or Approvals......................9 ARTICLE V STANDSTILL......................................................9 5.1 Standstill..................................................9 ARTICLE VI MISCELLANEOUS.................................................10 6.1 Buyer Undertaking..........................................10 6.2 Subsidiary Performance.....................................10 6.3 Acknowledgement of the Parties.............................10 6.4 Enforcement on Behalf of the Company.......................11 6.5 Legends....................................................11 6.6 Governing Law..............................................11 6.7 Entire Agreement; Amendments...............................11 6.8 Term.......................................................12 6.9 Inspection.................................................12 6.10 Waiver.....................................................12 6.11 Successors and Assigns.....................................12 6.12 Remedies...................................................12 6.13 Invalid Provisions.........................................12 6.14 Headings...................................................12 6.15 Further Assurances.........................................13 6.16 Gender.....................................................13 6.17 Counterparts...............................................13 6.18 Notices....................................................13 STOCKHOLDERS AGREEMENT STOCKHOLDERS AGREEMENT, dated as of June 23, 2003, by and among MMC NORILSK NICKEL, a Russian open joint stock company ("Norilsk Nickel"), NORIMET LIMITED, a company organized under the laws of England and Wales and an indirect, wholly-owned subsidiary of Norilsk Nickel ("Buyer"), and STILLWATER MINING COMPANY, a corporation organized under the laws of Delaware (the "Company") (each a "Party" and collectively the "Parties"). RECITALS WHEREAS, Buyer, Norilsk Nickel, and the Company have entered into a Stock Purchase Agreement, dated as of November 20, 2002 (the "Stock Purchase Agreement"), pursuant to which the Company shall sell to Buyer and Buyer shall purchase from the Company 45,463,222 shares of the Company's common stock, par value $0.01 per share (the "Common Stock"); WHEREAS, a material inducement for the willingness of Norilsk Nickel and Buyer to enter into this Agreement is that Norilsk Nickel and Buyer reasonably expect that the Company will enter into an agreement with Buyer to purchase and resell Buyer's Palladium as contemplated by the Stock Purchase Agreement, and the Company has represented to Buyer and Norilsk Nickel that it desires to enter into such an agreement because the profits to be realized thereunder will be beneficial to the Company and its stockholders; WHEREAS, the Stock Purchase Agreement further provides that, on the date of the closing thereof (the "Closing Date"), Norilsk Nickel, Buyer and the Company shall enter into this Agreement to establish certain governance principles for the Company and certain other principles in connection with Buyer's share ownership in the Company from and after the Closing Date; and WHEREAS, each of Norilsk Nickel, Buyer and the Company acknowledges and agrees that this Agreement is an integral part of the transactions contemplated by the parties, and in the absence of this Agreement, neither the Company nor Buyer would have entered into the Stock Purchase Agreement; NOW, THEREFORE, in consideration of the foregoing recitals and the representations, warranties, covenants and agreements set forth herein, Buyer, Norilsk Nickel and the Company, intending to be legally bound hereby, agree as follows: ARTICLE I CERTAIN DEFINITIONS 1.1 Defined Terms. (a) Unless specifically indicated otherwise in this Agreement, the following defined terms shall have the meanings ascribed hereto in this Article I. Capitalized terms used but not defined herein shall have the meanings set forth in the Stock Purchase Agreement. "Affiliate" shall mean, with respect to any Party hereof, any other Person that controls, is controlled by, or is under common control with such Party. For the purposes of this definition, "control," as used with respect to a Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such Person, whether through the ownership of voting securities, by contract, agency or otherwise. Notwithstanding the foregoing, for the purposes of this Agreement, the Company, on the one hand, and members of the Norilsk Nickel Group, on the other hand, shall be deemed not to be Affiliates of one another. "Agreement" means this Stockholders Agreement and the schedules hereto, as the same may be amended, modified, supplemented or restated from time to time in accordance with the terms hereof. "Board" means the Board of Directors of the Company. "Buyer" shall have the meaning assigned thereto in the recitals hereto. "Buyer Directors" shall have the meaning assigned thereto in Section 2.1(b). "Buyer Independent Directors" shall have the meaning assigned thereto in Section 2.2(c). "By-Laws" shall mean the by-laws of the Company, as may be amended from time to time. "Certificate of Incorporation" shall mean the Certificate of Incorporation of the Company, as may be amended from time to time. "Chief Executive Officer" shall mean the Chief Executive Officer of the Company, appointed pursuant to Section 2.7. "Closing" means the closing of the purchase and sale of shares of the Common Stock pursuant to the Stock Purchase Agreement. "Closing Date" shall have the meaning assigned thereto in the recitals hereto. "Company" shall have the meaning assigned thereto in the recitals hereto. "Common Stock" shall have the meaning assigned thereto in the recitals hereto. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. "Independence Requirements" shall have the meaning assigned thereto in Section 2.1(b). "Independent Directors" shall mean the Public Directors and the Buyer Independent Directors. "Norilsk Nickel" shall have the meaning assigned thereto in the recitals hereto. "Norilsk Nickel Group" shall mean the Buyer, Norilsk Nickel and all of their respective Affiliates. "NYSE" shall mean the New York Stock Exchange, Inc. "Organizational Documents" means the Certificate of Incorporation and the By-Laws, as such may be amended from time to time. "Own" shall mean "beneficially own", as such term is defined in the Securities Exchange Act of 1934, as amended. "Owned" and "Ownership" shall have correlative meanings. "Person" means an individual, partnership, corporation, limited liability company or partnership, trust, unincorporated organization, joint venture, government (or agency or political subdivision thereof) or any other entity of any kind. "PGM Agreement" shall have the meaning assigned to it in the Stock Purchase Agreement. "Public Directors" shall have the meaning assigned to such term in Section 2.1(b). "Registration Rights Agreement" means the Registration Rights Agreement between Buyer and the Company, dated as of the date hereof. "Registration Rights Agreement" means the Registration Rights Agreement, dated as of June 23, 2003, between Buyer and the Company. "Related Party Transaction" shall have the meaning set forth in Section 2.6(a). "Securities Act" shall mean the Securities Act of 1933, as amended. "Stock Purchase Agreement" shall have the meaning set forth in the recitals hereto. "Transaction Documents" means this Agreement, the Stock Purchase Agreement and the Registration Rights Agreement. "Transfer" shall mean any direct or indirect sale, transfer, assignment, hypothecation, pledge or other disposition of any Common Stock or other securities or any interests therein. ARTICLE II CORPORATE GOVERNANCE 2.1 Number and Composition. (a) From and after the date hereof, the number of directors on the Board shall be nine (9), or such number of directors as may be determined by the Board in accordance with the Organizational Documents; provided, that any increase or decrease in the number of directors shall be approved by a vote of the majority of the Independent Directors. (b) The Board shall at all times be comprised of (i) the directors elected pursuant to Section 2.2 (the "Buyer Directors"), (ii) the directors elected pursuant to Section 2.3 (the "Public Directors"), and (iii) the Chief Executive Officer. The Chairman of the Board shall at all times be the Chief Executive Officer. At all times, a majority of the directors on the Board shall meet the following requirements: such person (i) shall not be an officer, employee or director of any member of the Norilsk Nickel Group, (ii) shall meet the requirements set forth in Sections 303.01(B)(2)(a) and (B)(3) of the listing requirements of the NYSE, as may be amended from time to time, (iii) shall meet such other requirements regarding the independence of directors as may be applicable to the Company pursuant to applicable Law or the rules of the NYSE, and (iv) shall become a member of the Board subject to an affirmative determination by the Independent Directors that such person has no prior material relationship with the Company (other than a director) or any member of the Norilsk Nickel Group (including either directly or as a partner, shareholder or officer of an organization that has a material relationship with the Company or any member of the Norilsk Nickel Group ((i) through (iv), the "Independence Requirements"). (c) Schedule 2.1 sets forth the members of the Board immediately following the Closing, comprised of (i) the Chief Executive Officer, (ii) five Buyer Directors and (iii) three Public Directors. 2.2 Buyer Directors. (a) From and after the date hereof, for so long as Buyer Owns more than fifty percent (50%) of the outstanding voting securities of the Company, Buyer shall from time to time be entitled to nominate for election to the Board the smallest number of directors that is a majority of the Board. For so long as Buyer Owns ten percent (10%) or more but less than or equal to fifty percent (50%) of the outstanding voting securities of the Company, Buyer shall from time to time be entitled to nominate for election to the Board a number of directors to the Board equal to the total number of directors on the Board multiplied by the percentage of the Company's outstanding voting securities Owned by Buyer; provided, that such number shall be rounded to the nearest whole number. For the purposes of this Section 2.2, the percentage of voting securities Owned by Buyer shall be calculated pursuant to Section 13(d)(4) of the Exchange Act and the rules promulgated thereunder. (b) None of the Buyer Directors shall be an officer, employee or director of any member of the Norilsk Nickel Group. (c) Certain Buyer Directors shall meet the Independence Requirements (those Buyer Directors which meet the Independence Requirements, the "Buyer Independent Directors"). The minimum number of Buyer Independent Directors required to be on the Board shall be determined pursuant to the following formula: X= Y-Z X= the number of Buyer Independent Directors required to be on the Board Y= the smallest number that constitutes a majority of the Board Z= the number of Public Directors required to be on the Board pursuant to Section 2.3(a) In connection with nomination or election of any Buyer Director, Buyer shall provide the Company with such true and correct background information regarding such director as may be required under Section 14(a) of the Exchange Act and other applicable Law. If there shall be any vacancy with respect to any Buyer Director position due to the death, resignation or removal of any Buyer Director, increase in the size of the Board, or otherwise, Buyer shall select a person or persons to fill such vacancy and, subject to the last sentence of this Section 2.2(c), take such actions as may be necessary to cause such person or persons to be elected to the Board. If it is determined that any incumbent Buyer Director shall not stand for re-election at any annual meeting of the Company's stockholders, Buyer shall designate the person who shall be nominated to be elected as a Buyer Director in lieu of such incumbent director. The nomination and election of each Buyer Director pursuant to this Section 2.2 shall be subject to the prior approval of a majority of the Board's nominating committee, which approval shall not unreasonably be withheld or delayed. (d) To the extent permissible under Delaware Law, Buyer may remove any Buyer Director at any time, with or without cause, by providing written notice to the Company. 2.3 Public Directors. (a) From and after the date hereof, the Board shall include a number of Public Directors equal to the number of directors contemplated to be on the Board pursuant to Section 2.1(a) minus the number of Buyer Directors (as determined pursuant to Section 2.2(a)), minus one (the Chief Executive Officer). Each Public Director shall be required to meet the Independence Requirements. The nomination and election of each Public Director pursuant to this Section 2.3(a) shall be subject to the prior approval of a majority of the Board's nominating committee, which approval shall not unreasonably be withheld or delayed. (b) If there shall be any vacancy with respect to any Public Director position due to the death, resignation or removal of any Public Director, increase in the size of the Board, decrease in the percentage of shares of Common Stock Owned by Buyer, or otherwise, such vacancy shall be filled by a majority vote of the remaining Public Directors then in office. If any incumbent Public Director determines not to stand for re-election at any annual meeting of the Company's stockholders, the Public Directors shall determine by majority vote the person who shall be nominated to be elected as a Public Director in lieu of such incumbent director. If there shall be no Public Directors in office, the Company shall as soon as practicable call a special meeting of its stockholders to elect such number of Public Directors as may be determined pursuant to Section 2.3(a), provided that at such meeting Buyer shall vote its shares of Common Stock and any other voting securities of the Company over which it has voting power in the same manner (on a proportionate basis) as the stockholders of the Company other than the Norilsk Nickel Group; in such case the Board's nominating committee shall propose and nominate qualified persons to be elected as Public Directors at such meeting. (c) Neither the Norilsk Nickel Group nor the Buyer Directors shall take any action to cause the removal of any Public Director. 2.4 Committees. (a) The Board shall have (i) an audit committee, to perform such functions as may be set forth in the audit committee charter of the Company, as may be amended from time to time, (ii) a nominating committee, for the purposes of approving the nominees to be elected as Buyer Directors and Public Directors, as contemplated by Sections 2.2(a) and 2.3(a), and proposing and nominating Public Director candidates as contemplated by the last sentence of Section 2.3(b), (iii) a corporate governance committee, to recommend to the Board a set of corporate governance principles for the Company, and (iv) a compensation committee, to determine the compensation of the Chief Executive Officer and other executive officers of the Company. The Board shall also have such other committees as the Board may from time to time determine, as may be permitted under Delaware law and the Organizational Documents. (b) Each of the audit committee, the nominating committee, the corporate governance committee and the compensation committee shall be comprised of at least three (3) members, all of whom shall be Independent Directors, and at least one of whom shall be a Public Director. The Chief Executive Officer shall not be a member of the compensation committee. (c) Schedule 2.4(c) sets forth the respective members of the (i) audit committee, (ii) nominating committee, (iii) corporate governance committee, and (iv) compensation committee, immediately following the Closing. 2.5 Quorum and Voting. The quorum for the transaction of business at any Board meeting shall be a majority of the entire Board, including at least one Public Director; provided, however, that if a quorum does not exist at three consecutive duly called meetings of the Board because no Public Directors are present, the quorum at the next duly called meeting of the Board shall be any directors constituting a majority of the entire Board. All matters shall be approved by a vote of the majority of the Board, except as (a) otherwise set forth in this Agreement or (b) may be required under Delaware law. 2.6 Related Party Transactions. (a) Neither the Company nor Buyer or any other member of the Norilsk Nickel Group when acting in its capacity as a stockholder of the Company shall make any decision or take, or resolve to take, any action (including, in the case of Buyer and members of the Norilsk Nickel Group, causing the Company or the Board to make any decision or take, or resolve to take, any action) regarding, any of the matters set forth below (each, a "Related Party Transaction"), without the prior approval of a majority of the Public Directors, which approval shall be in addition to any Board or stockholder approval required pursuant to applicable law or the Organizational Documents: (i) any matter related, directly or indirectly, to the PGM Agreement or any of the Transaction Documents, including, but not limited to: (x) the amendment or modification of the Transaction Documents; (y) the negotiation, amendment or modification of the PGM Agreement and the purchase of palladium (as well as platinum or rhodium) pursuant to the PGM Agreement; or (z) any decision with respect to the registration of Common Stock pursuant to the Registration Rights Agreement; (ii) any agreement, contract, arrangement, transaction, action or event with any member of the Norilsk Nickel Group or any transaction, action (including a reverse stock split) or event otherwise benefiting a member of the Norilsk Nickel Group in an advantageous manner over the interests of other stockholders; or (iii) the amendment of the Certificate of Incorporation or By-Laws in a manner that (A) adversely affects stockholders other than the Norilsk Nickel Group or (B) is inconsistent with this Agreement. (b) To the extent the approval of the Company's stockholders other than the Norilsk Nickel Group is required under applicable law in connection with any Related Party Transaction, if the Public Directors determine to approve such Related Party Transactions pursuant to Section 2.6(a), the Public Directors may also recommend to such other stockholders to approve such Related Party Transaction. (c) In connection with the review of any Related Party Transaction, as determined to be necessary in the judgment of the Public Directors, the Public Directors may select in their sole discretion, and retain at the expense of the Company, independent financial advisors to review such transaction and provide an opinion regarding the fairness, from a financial point of view, of such Related Party Transaction (and any consideration to be received in connection therewith) to the stockholders of the Company other than the Norilsk Nickel Group. 2.7 Election of Certain Officers. The Chief Executive Officer, chief financial officer and director of sales and marketing of the Company shall be appointed from time to time by the Board; provided that such appointment shall be subject to the reasonable approval of both (i) a majority of the Independent Directors and (ii) a majority of the Buyer Directors. The Chief Executive Officer shall not be a director or officer of any member of the Norilsk Nickel Group. 2.8 Meetings. Upon the written request of two (2) directors, a Board meeting shall be called for any proper purpose as soon as practicable, and each Party shall use its best efforts to cause the directors to attend any such Board meeting. 2.9 Director Fees. All Directors shall receive normal, customary fees as determined by the Board for attending Board meetings and fulfilling their obligations as members of the Board. Directors who serve on committees shall be entitled to additional customary compensation as the Board shall determine. 2.10 Authority to Retain Advisors. In such instances where and in such manner as it is customary, appropriate and reasonable under the circumstances to do so, any Independent Director shall have the authority to retain, at the Company's expense, legal and financial advisors in order to fulfill his or her obligations as a member of the Board. ARTICLE III REPRESENTATIONS AND WARRANTIES OF BUYER AND NORILSK NICKEL Buyer and Norilsk Nickel, jointly and severally, hereby represent and warrant to the Company as follows: 3.1 Organization and Good Standing. Norilsk Nickel is a joint stock company duly organized, validly existing and in good standing under the laws of Russia. Buyer is a company duly organized, validly existing and in good standing under the laws of England and Wales. Buyer is a wholly-owned indirect subsidiary of Norilsk Nickel. 3.2 Organizational Documents. The organizational documents of each of Buyer and Norilsk Nickel are in full force and effect as of the date hereof. 3.3 Authority and Authorization. Each of Norilsk Nickel and Buyer has all requisite corporate power to enter into this Agreement and to carry out its obligations hereunder. The execution, delivery and performance of this Agreement by each of Norilsk Nickel and Buyer have been duly authorized by all necessary corporate action. This Agreement, when duly executed and delivered to the Company, will constitute valid, binding and enforceable obligation of each of Norilsk Nickel and Buyer, enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or other laws and judicial decisions of general application relating to or affecting the enforcement of creditors' rights generally or by general equitable principles. 3.4 No Conflicts; No Consents or Approvals. The execution, delivery and performance of this Agreement by each of Norilsk Nickel and Buyer will not (i) conflict with, violate or result in a breach or default of any provision of its organizational documents, or (ii) conflict with or violate any law, rule, regulation, ordinance, order, writ, injunction, judgment or decree applicable thereto, or by which any of its properties or assets are bound. No Governmental Approvals, declaration, or filing with any Governmental Authority or any other Person is required to be obtained or made by Buyer or Norilsk Nickel in connection with the execution, delivery and performance of this Agreement and the transactions contemplated hereby. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF COMPANY The Company hereby represents to Buyer and Norilsk Nickel as follows: 4.1 Organization and Good Standing. The Company is a corporation duly organized, validly existing and in good standing under the laws of Delaware. 4.2 Organizational Documents. The Organizational Documents are in full force and effect as of the date hereof. 4.3 Authority and Authorization. The Company has all requisite corporate power to enter into this Agreement and to carry out its obligations hereunder. The execution, delivery and performance of this Agreement by the Company have been duly authorized by all necessary corporate action. This Agreement, when duly executed and delivered to Buyer, will constitute a valid, binding and enforceable obligation of the Company, enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or other laws and judicial decisions of general application relating to or affecting the enforcement of creditors' rights generally or by general equitable principles. 4.4 No Conflicts; No Consents or Approvals. The execution, delivery and performance of this Agreement by the Company will not (i) conflict with, violate or result in a breach or default of any provision of the Organizational Documents, or (ii) conflict with or violate any law, rule, regulation, ordinance, order, writ, injunction, judgment or decree applicable thereto, or by which any of its properties or assets are bound. No Governmental Approvals, declaration, or filing with any Governmental Authority or any other Person is required to be obtained or made by the Company in connection with the execution, delivery and performance of this Agreement and the transactions contemplated hereby. ARTICLE V STANDSTILL 5.1 Standstill. (a) From and after the Closing Date, each of Buyer and Norilsk Nickel shall not, and shall cause each other member of the Norilsk Nickel Group not to, alone or acting in concert with any other Person, acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any Common Stock or other securities or rights to acquire any Common Stock or securities of the Company, or any assets of the Company or any subsidiary or division thereof other than the purchase of Common Stock (i) pursuant to the Stock Purchase Agreement, (ii) pursuant to the Offer and (iii) as may be necessary from time to time to maintain Ownership of fifty-one percent (51%) of the outstanding voting securities of the Company until such time as Buyer ceases to own twenty-five percent (25%) or more of the outstanding voting securities of the Company. Notwithstanding the foregoing, Buyer, Norilsk Nickel or any other member of the Norilsk Nickel Group may make an offer to the Company to acquire all or part of the outstanding assets or securities of the Company (other than such securities already Owned by the Norilsk Nickel Group), whether pursuant to a tender offer, merger, sale of assets, combination or similar transaction or series of transactions, if as a condition to the consummation of such acquisition (A) prior written consent of a majority of the Public Directors is obtained, and (B) the Public Directors shall select in their sole discretion, and retain at the expense of the Company, independent financial advisors to review such transaction and provide an opinion regarding the fairness, from a financial point of view, of the financial terms of such transaction (and any consideration to be received in connection therewith) to the stockholders of the Company other than the Norilsk Nickel Group, which opinion shall have been received by the Public Directors. (b) Without the prior written consent of a majority of the Public Directors (which consent shall not unreasonably be withheld or delayed), from and after the Closing Date, Buyer shall not, and Norilsk Nickel shall cause Buyer not to, directly or indirectly, Transfer to any Person any shares of Common Stock or other voting securities of the Company Owned by it if as a result of such Transfer any Person shall Own five percent (5%) or more of the Company's outstanding voting securities immediately following such Transfer; provided, however, that no such consent shall be required (i) with respect to a transfer to an Affiliate that agrees to be bound by the provisions of this Agreement, or (ii) from and after the third (3rd) anniversary of the date of this Agreement if (A) such transferee is a reputable Person in the reasonable opinion of the Public Directors, (B) such transferee agrees to be bound by the provisions of this Agreement, without giving effect to Section 6.8 (it being understood that any such agreement shall be appropriately modified to account for transferee as a party), and (C) Buyer gives thirty (30) days prior written notice to the Company before any such Transfer, which notice shall include all relevant material terms of the Transfer (including the identity of the transferee). ARTICLE VI MISCELLANEOUS 6.1 Buyer Undertaking. Buyer shall vote or cause to be voted all shares of Common Stock and any other voting securities of the Company Owned by it (whether or not acquired in connection with the transactions contemplated by the Transaction Documents), and shall take all other actions necessary, to cause the election of directors pursuant to Article II hereof, to otherwise ensure that the Company be governed at all times consistent with the governance principles contained in this Agreement and to ensure the fulfillment of the other obligations of the Norilsk Nickel Group set forth in this Agreement. 6.2 Subsidiary Performance. Norilsk Nickel shall cause Buyer and the other members of the Norilsk Nickel Group to perform all of their obligations set forth in this Agreement, and shall be jointly and severally liable with Buyer or any such other members of the Norilsk Nickel Group, as the case may be, for any breach of this Agreement. 6.3 Acknowledgement of the Parties. The Parties hereby acknowledge that the Company is a public company and that fiduciary duties are owed to all stockholders. Furthermore, notwithstanding any provision contained in this Agreement, it is understood that the Parties may not be in a position by reason of the ownership level of voting securities Owned by the Norilsk Nickel Group to cause or effect the actions and results contemplated herein; in such case the Parties agree to use all reasonable commercial efforts to achieve the actions and results contemplated by this Agreement. In particular, if Buyer ceases to Own a majority of the outstanding voting securities of the Company, it may not have the requisite power to effect the obligations contained herein. In such case, the Parties shall nonetheless be obligated to use all reasonable commercial efforts to fulfill, or to cause the fulfillment of, all obligations hereunder and otherwise use all reasonable commercial efforts to ensure that the Company is governed at all times consistent with the governance principles contained herein. 6.4 Enforcement on Behalf of the Company. The Public Directors shall be authorized to enforce the terms of this Agreement on behalf of the Company. 6.5 Legends. The certificates representing (i) all shares of Common Stock and any other voting securities of the Company Owned by Buyer (whether or not acquired in connection with the transactions contemplated by the Transaction Documents) and (ii) any shares referenced in (i) which are transferred to a transferee who becomes bound by the terms of this Agreement, shall, in accordance with Delaware Law, and in addition to any other necessary and required legend or legends, bear a legend stating that such shares are subject to the provisions of this Agreement. 6.6 Governing Law. (a) This Agreement shall be governed and construed in accordance with the laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the State of Delaware. Delaware law shall govern all questions concerning the relative rights of the Company and its stockholders hereunder and all other questions concerning the construction, validity and interpretation of this Agreement. (b) Each of Buyer and Norilsk Nickel shall maintain at all times a duly appointed agent in the State of Delaware, which may be changed upon ten (10) days notice to the Company, for the service of any process or summons in connection with any issue, litigation, arbitration, action or proceeding brought in any such court. Any such process or summons may also be served on it by mailing a copy of such process or summons to it at its address set forth, and in the manner provided in Section 6.18. Each of Buyer and Norilsk Nickel hereby irrevocably consents to the exclusive personal jurisdiction and venue of any Delaware state or United States Federal court of competent jurisdiction sitting in New Castle County, Delaware, in any action, claim or proceeding arising out of or in connection with this Agreement and agrees not to commence or prosecute any action, claim or proceeding in any other court. Each of Buyer and Norilsk Nickel hereby expressly and irrevocably waives and agrees not to assert the defense of lack of personal jurisdiction, forum non conveniens or any similar defense with respect to the maintenance of any such action or proceeding in New Castle County, Delaware. 6.7 Entire Agreement; Amendments. This Agreement, together with the other Transaction Documents, constitutes the entire agreement of the Parties with respect to the subject matter hereof and may be amended, modified or supplemented only by a written instrument duly executed by the Company, Norilsk Nickel and Buyer. Any amendment, modification or supplement of this Agreement shall require the approval of the majority of the Independent Directors. In the event of an amendment, modification or supplement of this Agreement in accordance with its terms, Buyer hereby agrees to vote its Shares to approve any necessary amendments to the Certificate of Incorporation and By-Laws of the Company resulting therefrom. 6.8 Term This Agreement shall remain in effect for so long as any member of the Norilsk Nickel Group Owns at least ten percent (10%) of the outstanding voting securities of the Company and shall terminate if any member of the Norilsk Nickel Group Owns one hundred percent (100%) of the outstanding voting securities of the Company. 6.9 Inspection. For so long as this Agreement shall remain in effect, this Agreement shall be made available for inspection by any stockholder at the principal executive offices of the Company. 6.10 Waiver. No waiver by any Party of any term or condition of this Agreement, in one or more instances, shall be valid unless in writing, and no such waiver shall be deemed to be construed as a waiver of any subsequent breach or default of the same or similar nature. 6.11 Successors and Assigns. This Agreement shall not be assigned by any Party hereto (by operation of law or otherwise) without the prior written consent of the other Parties hereto. Except as otherwise expressly provided herein, this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, personal representatives, successors and assigns. 6.12 Remedies. In the event of a breach by any Party to this Agreement of its obligations under this Agreement, any Party injured by such breach, in addition to being entitled to exercise all rights granted by law, including recovery of damages and costs (including reasonable attorneys' fees), will be entitled to specific performance of its rights under this Agreement. The Parties agree that the provisions of this Agreement shall be specifically enforceable, it being agreed by the parties that the remedy at law, including monetary damages, for breach of any such provision will be inadequate compensation for any loss and that any defense in any action for specific performance that a remedy at law would be adequate is waived. 6.13 Invalid Provisions. If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future law, and if the rights or obligations of any Party hereto under this Agreement will not be materially and adversely affected thereby, (a) such provision will be fully severable, (b) this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof, (c) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom and (d) in lieu of such illegal, invalid or unenforceable provision, there will be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible. 6.14 Headings. The headings used in this Agreement have been inserted for convenience of reference only and do not define or limit the provisions hereof. 6.15 Further Assurances. Each Party hereto shall cooperate and shall take such further action and shall execute and deliver such further documents as may be reasonably requested by any other Party in order to carry out the provisions and purposes of this Agreement. 6.16 Gender. Whenever the pronouns "he" or "his" are used herein they shall also be deemed to mean "she" or "hers" or "it" or "its" whenever applicable. Words in the singular shall be read and construed as though in the plural and words in the plural shall be construed as though in the singular in all cases where they would so apply. 6.17 Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. 6.18 Notices. All notices, requests and other communications hereunder must be in writing and will be deemed to have been duly given only if delivered personally against written receipt or by facsimile transmission or mailed by prepaid first class mail, return receipt requested, or mailed by overnight courier prepaid to the parties at the following addresses or facsimile numbers: If to Buyer, to: Norimet Limited Managing Director Cassini House, 6th Floor 57 St. James Street London SW1A 1LD Fax: 44 207 565 6463 with a copy to (which will not constitute notice to): Baker Botts L.L.P. 1299 Pennsylvania Ave., N.W. Washington, DC 20004-2400 Attn: David N. Powers, Esq. Telephone No: (202) 639-7769 Facsimile No: (202) 639-7890 If to Norilsk Nickel, to: Usadba Center 22, Voznesensky per. Moscow 103009 Russia Telephone No.: 7 095 797 8610 Facsimile No.: 7 095 797 8611 Attn: General Director with a copy to: Baker Botts L.L.P. 1299 Pennsylvania Ave., N.W. Washington, DC 20004-2400 Attn: David N. Powers, Esq. Telephone No:(202) 639-7769 Facsimile No: (202) 639-7890 If to the Company, to: Stillwater Mining Company 536 East Pike Avenue Columbus, Montana 59019 Attn: Chief Executive Officer Telephone No: (406) 322-8700 Facsimile No: (406) 322-9985 with a copy to (which will not constitute notice to): Skadden, Arps, Slate, Meagher & Flom LLP 4 Times Square New York, NY 10036 Telephone No.: 212-735-3380 Facsimile No.: 917-777-3380 Attn: Jeffrey W. Tindell, Esq. All such notices, requests and other communications will (w) if delivered personally to the address as provided in this Section 6.18 be deemed given upon delivery, (x) if delivered by facsimile transmission to the facsimile number as provided in this Section 6.18 be deemed given upon facsimile confirmation, and (y) if delivered by mail in the manner described above to the address as provided in this Section 6.18 upon the earlier of the third business day following mailing or upon receipt and (z) if delivered by overnight courier to the address as provided in this Section 6.18, be deemed given on the earlier of the first business day following the date sent by such overnight courier or upon receipt (in each case regardless of whether such notice, request or other communication is received by any other Person to whom a copy of such notice is to be delivered pursuant to this Section 6.18). Any Party from time to time may change its address, facsimile number or other information for the purpose of notices to that Party by giving notice specifying such change to the other Parties hereto. IN WITNESS WHEREOF, the Parties hereto have executed and delivered this Agreement as of the date first above written. STILLWATER MINING COMPANY By: /s/ John R. Stark --------------------------- Name: John R. Stark Title: Vice President, Secretary and General Counsel NORIMET LIMITED By: /s/ Peter Holodny --------------------------- Name: Peter Holodny Title: President MMC NORILSK NICKEL By: /s/ Dmitry V. Razumov ------------------------- Name: Dmitry V. Razumov Title: Deputy General Director Schedule 2.1 Following are the members of the Board immediately following the Closing: Chief Executive Officer - ----------------------- Francis R. McAllister Buyer Directors - --------------- Craig L. Fuller Steven S. Lucas The Honorable Donald W. Riegle Jr. Todd D. Schafer Jack E. Thompson Public Directors - ---------------- Partick M. James Joseph P. Mazurek Sheryl K. Pressler Schedule 2.4(c) Committee assignments are expected to be confirmed at the first meeting of the Board of Directors after the Closing. EX-10 4 s391760.txt EXHIBIT 10.2 Exhibit 10.2 REGISTRATION RIGHTS AGREEMENT by and between STILLWATER MINING COMPANY and NORIMET LIMITED dated as of June 23, 2003 TABLE OF CONTENTS 1. Introduction......................................................1 2. Registration under Securities Act, etc............................1 2.1. Registration on Request.................................1 (a) Request..........................................1 (b) Registration Statement Form......................1 (c) Expenses.........................................2 (d) Effective Registration Statement.................2 (e) Selection of Underwriters........................2 2.2. Incidental Registration.................................2 (a) Right to Include Registrable Securities..........2 (b) Priority in Incidental Registrations.............3 2.3. Registration Procedures.................................3 2.4. Underwritten Offerings..................................7 (a) Requested Underwritten Offerings.................7 (b) Incidental Underwritten Offerings................7 (c) Holdback Agreements..............................8 (d) Participation in Underwritten Offerings..........9 2.5. Preparation; Reasonable Investigation...................9 2.6. Indemnification.........................................9 (a) Indemnification by the Company...................9 (b) Indemnification by the Investor.................10 (c) Notices of Claims, etc..........................10 (d) Other Indemnification...........................11 (e) Indemnification Payments........................11 (f) Contribution....................................11 3. Definitions......................................................12 4. Rules 144 and 144A...............................................14 5. Amendments and Waivers...........................................14 6. Nominees for Beneficial Owners...................................14 7. Notices................................................................15 8. Assignment.............................................................15 9. Descriptive Headings...................................................15 10. Governing Law..........................................................15 11. Submission to Jurisdiction.............................................15 12. Company Actions........................................................15 13. Counterparts...........................................................16 14. Entire Agreement.......................................................16 15. Severability...........................................................16 REGISTRATION RIGHTS AGREEMENT This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of June 23, 2003, is entered into by and between Norimet Limited, a company organized and existing under the laws of England and Wales (the "Investor"), and Stillwater Mining Company, a Delaware corporation (the "Company"). 1. Introduction. The Company is a party to the Stock Purchase Agreement (the "Stock Purchase Agreement"), dated November 20, 2002, with the Investor, pursuant to which the Company has agreed, among other things, to issue 45,463,222 shares of its common stock, par value $0.01 per share (the "Common Stock"), to the Investor. This Agreement shall become effective upon the issuance of such securities to the Investor pursuant to the Stock Purchase Agreement. Certain capitalized terms used in this Agreement are defined in Section 3 hereof; references to Sections shall be to Sections of this Agreement. 2. Registration under Securities Act, etc. 2.1. Registration on Request. (a) Request. Upon the written request of the Investor, requesting that the Company effect the registration under the Securities Act of all or part of the Investor's Registrable Securities and specifying the intended method of disposition thereof, the Company will, subject to the terms of this Agreement, use its best efforts to effect the registration under the Securities Act of: (i) the Registrable Securities which the Company has been so requested to register by the Investor for disposition in accordance with the intended method of disposition stated in such request; and (ii) all shares of Common Stock which the Company may elect to register in connection with the offering of Registrable Securities pursuant to this Section 2.1, all to the extent requisite to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities and the additional shares of Common Stock, if any, so to be registered, provided that, on and prior to the seventh (7th) anniversary of the date of this Agreement, the Company shall not be required to effect any registration of Registrable Securities pursuant to this Section 2.1 unless the Investor has requested the registration of a number of shares of Registrable Securities held by the Investor which is equal to or greater than 5% of the shares of Common Stock at the time outstanding. Notwithstanding the foregoing, the Investor shall not make more than five (5) requests for registration pursuant to this Section 2.1. (b) Registration Statement Form. Registrations under this Section 2.1 shall be on such appropriate registration form of the Commission (i) as shall be selected by the Company and, as shall be reasonably acceptable to the Investor and (ii) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in their request for such registration. If, in connection with any registration under Section 2.1 which is proposed by the Company to be on Form S-3 or any similar short form registration statement which is a successor to Form S-3, the managing underwriters, if any, shall advise the Company in writing that in their opinion the use of another permitted form is of material importance to the success of the offering, then such registration shall be on such other permitted form. (c) Expenses. The Company shall pay all Registration Expenses in connection with any registration requested pursuant to this Section 2.1 prior to the time at which three such registrations shall have been effected in which 75% of the Registrable Securities requested to be included in such registration by the Investor shall have been registered pursuant to this Section 2.1. The Registration Expenses (and underwriting discounts and commissions and transfer taxes, if any) in connection with each other registration requested under this Section 2.1 shall be paid by the Investor. (d) Effective Registration Statement. A registration requested pursuant to this Section 2.1 shall not be deemed to have been effected (i) unless a registration statement with respect thereto has been declared effective by the Commission, provided that a registration which is not declared effective by the Commission after the Company has filed a registration statement with respect thereto solely by reason of the refusal to proceed of the Investor (other than a refusal to proceed based upon the advice of counsel relating to a matter with respect to the Company) shall be deemed to have been effected by the Company at the request of the Investor unless the Investor shall have elected to pay all Registration Expenses in connection with such registration; (ii) if, after it has become effective, such registration becomes subject to any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason; or (iii) the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied, other than by reason of some act or omission by the Investor. (e) Selection of Underwriters. If a requested registration pursuant to this Section 2.1 involves an underwritten offering, the managing or lead underwriter or underwriters thereof shall be selected by the Investor and shall be reasonably acceptable to the Company. 2.2. Incidental Registration. (a) Right to Include Registrable Securities. If the Company at any time proposes to register any of its securities under the Securities Act (other than by a registration in connection with an acquisition in a manner which would not permit registration of Registrable Securities for sale to the public on Form S-8, or on Form S-4 or S-8, or any successor or similar forms and other than pursuant to Section 2.1), whether or not for sale for its own account, it will each such time give prompt written notice to the Investor of its intention to do so and of the Investor's rights under this Section 2.2. Upon the written request of the Investor made within 30 days after the receipt of any such notice (which request shall specify the Registrable Securities intended to be disposed of by the Investor and the intended method of disposition thereof), the Company will, subject to the terms of this Agreement, use its best efforts to effect the registration under the Securities Act of all Registrable Securities which the Company has been so requested to register, to the extent requisite to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, by inclusion of such Registrable Securities in the registration statement which covers the securities which the Company proposes to register, provided that if, at any time after giving written notice of its intention to register any securities and prior to the effective date of the registration statement filed in connection with such registration, the Company shall determine in good faith and for valid business reasons (but not including avoidance of the Company's obligations hereunder) either not to register or to delay registration of such securities, the Company shall give written notice of such determination to the Investor and, thereupon, (i) in the case of a determination not to register, shall be relieved of its obligation to register any Registrable Securities in connection with such registration (but not from its obligation to pay the Registration Expenses in connection therewith), without prejudice, however, to the rights of the Investor to request that such registration be effected as a registration under Section 2.1, and (ii) in the case of a determination to delay registering, shall be permitted to delay registering any Registrable Securities, for the same period as the delay in registering such other securities. No registration effected under this Section 2.2 shall relieve the Company of its obligation to effect any registration upon request under Section 2.1, nor shall any such registration hereunder be deemed to have been effected pursuant to Section 2.1. The Company will pay all Registration Expenses in connection with each registration of Registrable Securities requested pursuant to this Section 2.2. (b) Priority in Incidental Registrations. If (i) a registration pursuant to this Section 2.2 involves an underwritten offering of the securities so being registered, whether or not for sale for the account of the Company, to be distributed (on a firm commitment basis) by or through one or more underwriters of recognized standing under underwriting terms appropriate for such a transaction, (ii) the Registrable Securities so requested to be registered for sale for the Investor are not also to be included in such underwritten offering (either because the Company has not been requested so to include such Registrable Securities pursuant to Section 2.2(a) or, if requested to do so, is not obligated to do so under Section 2.2(a), and (iii) the managing underwriter of such underwritten offering shall inform the Company and the Investor requesting such registration by letter of its belief that the number of securities requested to be included in such registration exceeds the number which can be sold in (or during the time of) such offering, then the Company will include in such registration, to the extent of the number which the Company is so advised can be sold in (or during the time of) such offering, securities proposed by the Company to be sold for its own account, Registrable Securities and other securities of the Company requested to be included in such registration pro rata on the basis of the number of shares of such securities so proposed to be sold and so requested to be included. 2.3. Registration Procedures. If and whenever (a) the Company is required to use its best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 2.1 and 2.2 or (b) the Investor has requested that its Registrable Securities be registered in connection with any other proposed registration by the Company under the Securities Act, the Company shall, as expeditiously as possible: (i) prepare and (within 60 days after the end of the period within which requests for registration may be given to the Company or in any event as soon thereafter as possible) file with the Commission the requisite registration statement to effect such registration and thereafter use its best efforts to cause such registration statement to become and remain effective, provided however that the Company may discontinue any registration of its securities which are not Registrable Securities (and, under the circumstances specified in Section 2.2(a), its securities which are Registrable Securities) at any time prior to the effective date of the registration statement relating thereto; (ii) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the Investor or (i) in the case of a registration pursuant to Section 2.1, the expiration of 180 days after such registration statement becomes effective, or (ii) in the case of a registration pursuant to Section 2.2, the expiration of 90 days after such registration statement becomes effective; (iii) furnish to the Investor such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents, as the Investor may reasonably request; (iv) use its best efforts to register or qualify all Registrable Securities and other securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as the Investor shall reasonably request, to keep such registrations or qualifications in effect for so long as such registration statement remains in effect, and take any other action which may be reasonably necessary or advisable to enable the Investor to consummate the disposition in such jurisdictions of the securities owned by the Investor, except that the Company shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this subdivision (iv) be obligated to be so qualified or to consent to general service of process in any such jurisdiction; (v) use its best efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary to enable the Investor to consummate the disposition of such Registrable Securities; (vi) furnish to the Investor a signed counterpart, addressed to the Investor and the underwriters, if any, of: (x) an opinion of counsel for the Company, dated the effective date of such registration statement (or, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), reasonably satisfactory in form and substance to the Investor, and (y) a "comfort" letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a "comfort" letter specified in Statement on Auditing Standards No. 72, an "agreed upon procedures" letter), dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter of like kind dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have certified the Company's financial statements included in such registration statement, each of (x) and (y) covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of the accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to the underwriters in underwritten public offerings of securities (with, in the case of an "agreed upon procedures" letter, such modifications or deletions as may be required under Statement on Auditing Standards No. 35) and, in the case of the accountants' letter, such other financial matters, and, in the case of the legal opinion, such other legal matters, as the Investor (or the underwriters, if any) may reasonably request; (vii) notify the Investor and the managing underwriter or underwriters, if any, promptly and confirm such advice in writing promptly thereafter: (v) when the registration statement, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement has been filed, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective; (w) of any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information; (x) of the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; (y) if at any time the representations and warranties of the Company made as contemplated by Section 2.4 below cease to be true and correct; (z) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose; and (viii) notify the Investor, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and at the request of the Investor promptly prepare and furnish a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made; (ix) use best efforts to obtain the withdrawal of any order suspending the effectiveness of the registration statement at the earliest possible moment; (x) otherwise use its best efforts to comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months, but not more than eighteen months, beginning with the first full calendar quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder, and will furnish to the Investor at least five business days prior to the filing thereof a copy of any amendment or supplement to such registration statement or prospectus and shall not file any thereof to which the Investor shall have reasonably objected on the grounds that such amendment or supplement does not comply in all material respects with the requirements of the Securities Act or of the rules or regulations thereunder; (xi) use its best efforts to list all Registrable Securities covered by such registration statement on any securities exchange on which any of the Registrable Securities are then listed; (xii) use its best efforts to provide a CUSIP number for the Registrable Securities, not later than the effective date of the registration statement; (xiii) use its best efforts to assist the Investor in the marketing of the Registrable Securities, including, if requested by the Investor and to the extent reasonably consistent with work commitments of the Company's officers, using good faith efforts to have Company officers attend "road shows" and analyst or investor presentations scheduled in connection with such registration. The Company may require the Investor to furnish the Company such information regarding the Investor and the distribution of such securities as the Company may from time to time reasonably request in writing. The Company will not file any registration statement or amendment thereto or any prospectus or any supplement thereto (including such documents incorporated by reference and proposed to be filed after the initial filing of the registration statement) to which the Investor or the underwriter or underwriters, if any, shall reasonably object, provided that the Company may file such document in a form required by law or upon the advice of its counsel. The Investor agrees by acquisition of its Registrable Securities that, upon receipt of any notice from the Company of the occurrence of any event of the kind described in subdivision (viii) of this Section 2.3, the Investor will forthwith discontinue the Investor's disposition of Registrable Securities pursuant to the registration statement relating to such Registrable Securities until the Investor's receipt of the copies of the supplemented or amended prospectus contemplated by subdivision (viii) of this Section 2.3 and, if so directed by the Company, will deliver to the Company (at the Company's expense) all copies, other than permanent file copies, then in the Investor's possession of the prospectus relating to such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the period mentioned in paragraph (ii) of this Section 2.3 shall be extended by the length of the period from and including the date when the Investor shall have received such notice to the date on which the Investor has received the copies of the supplemented or amended prospectus contemplated by paragraph (viii) of this Section 2.3. 2.4. Underwritten Offerings. (a) Requested Underwritten Offerings. If requested by the underwriters for any underwritten offering by the Investor pursuant to a registration requested under Section 2.1, the Company will enter into an underwriting agreement with such underwriters for such offering, such agreement to contain such representations and warranties by the Company and such other terms as are generally prevailing in agreements of this type, including, without limitation, indemnities to the effect and to the extent provided in Section 2.6. The Investor will cooperate with the Company in the negotiation of the underwriting agreement and will give consideration to the reasonable suggestions of the Company regarding the form thereof, provided that nothing herein contained shall diminish the foregoing obligations of the Company. The Investor shall be a party to such underwriting agreement and may, at its option, require that any or all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall also be made to and for the benefit of the Investor. The Investor shall not be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations and warranties contained in a writing furnished by the Investor expressly for use in such registration statement or agreements regarding the Investor, the Investor's Registrable Securities and the Investor's intended method of distribution. (b) Incidental Underwritten Offerings. If the Company at any time proposes to register any of its securities under the Securities Act as contemplated by Section 2.2 and such securities are to be distributed by or through one or more underwriters, the Company will, if requested by the Investor as provided in Section 2.2 and subject to the provisions of Section 2.2(b), use its best efforts to arrange for such underwriters to include all the Registrable Securities to be offered and sold by the Investor among the securities to be distributed by such underwriters, provided that if the managing underwriter of such underwritten offering shall inform the Investor by letter of its belief that inclusion in such underwritten distribution of all or a specified number of such Registrable Securities or of such other securities so requested to be included would interfere with the successful marketing of the securities (other than such Registrable Securities and other securities so requested to be included) by the underwriters (such writing to state the basis of such belief and the approximate number of such Registrable Securities and shares of other securities so requested to be included which may be included in such underwritten offering without such effect), then the Company may, upon written notice to the Investor and of such other shares of securities so requested to be included, exclude pro rata from such underwritten offering (if and to the extent stated by such managing underwriter to be necessary to eliminate such effect) the number of such Registrable Securities and shares of such other securities so requested to be included the registration of which shall have been requested by the Investor and so that the resultant aggregate number of such Registrable Securities and of such other shares of securities so requested to be included which are included in such underwritten offering shall be equal to the approximate number of shares stated in such managing underwriter's letter. The Investor shall be party to the underwriting agreement between the Company and such underwriters and may, at its option, require that any or all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall also be made to and for the benefit of the Investor. The Investor shall not be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding the Investor, the Investor's Registrable Securities and the Investor's intended method of distribution and any other representation required by law. (c) Holdback Agreements. (i) The Investor agrees by acquisition of its Registrable Securities, if so required by the managing underwriter, not to sell, make any short sale of, loan, grant any option for the purchase of, effect any public sale or distribution of or otherwise dispose of any securities of the Company, during the 7 days prior to and the 90 days after any underwritten registration pursuant to Section 2.1 or 2.2 has become effective, except as part of such underwritten registration, whether or not the Investor participates in such registration. Notwithstanding the foregoing sentence, the Investor shall be entitled to sell during the foregoing period securities in a private sale. The Investor agrees that the Company may instruct its transfer agent to place stop transfer notations in its records to enforce this Section 2.4(c). (ii) The Company agrees (x) if so required by the managing underwriter not to sell, make any short sale of, loan, grant any option for the purchase of, effect any public sale or distribution of or otherwise dispose of its equity securities or securities convertible into or exchangeable or exercisable for any of such securities during the seven days prior to and the 90 days after any underwritten registration pursuant to Section 2.1 or 2.2 has become effective, except as part of such underwritten registration and except in connection with a stock option plan, stock purchase plan, managing directors' plan, savings or similar plan, or an acquisition of a business, merger or exchange of stock for stock, pursuant to registrations on Form S-4, S-8, or any successor or similar forms thereto, and (y) to cause each holder of its securities or any securities convertible into or exchangeable or exercisable for any of such securities, in each case purchased directly from the Company at any time after the date of this Agreement (other than in a public offering) to agree not to sell, make any short sale of, loan, grant any option for the purchase of, effect any public sale or distribution of or otherwise dispose of such securities during such period except as part of such underwritten registration. (d) Participation in Underwritten Offerings. The Investor may not participate in any underwritten offering hereunder unless the Investor (i) agrees to sell its securities on the basis provided in any underwriting arrangements approved, subject to the terms and conditions hereof, by the Company and the Investor and (ii) completes and executes all questionnaires, indemnities, underwriting agreements and other documents (other than powers of attorney) required under the terms of such underwriting arrangements. Notwithstanding the foregoing, no underwriting agreement (or other agreement in connection with such offering) shall require the Investor to make any representations or warranties to or agreements with the Company or the underwriters other than representations and warranties contained in a writing furnished by the Investor expressly for use in the related registration statement or agreements regarding the Investor, the Investor's Registrable Securities and the Investor's intended method of distribution and any other representation required by law. 2.5. Preparation; Reasonable Investigation. In connection with the preparation and filing of each registration statement under the Securities Act pursuant to this Agreement, the Company will give the Investor, its underwriters, if any, and its counsel and accountants, the opportunity to participate in the preparation of such registration statement, each prospectus included therein or filed with the Commission, and each amendment thereof or supplement thereto, and will give each of them such access to its books and records and such opportunities to discuss the business of the Company with its officers and the independent public accountants who have certified its financial statements as shall be necessary, in the opinion of the Investor's and such underwriters' respective counsel, to conduct a reasonable investigation within the meaning of the Securities Act. 2.6. Indemnification. (a) Indemnification by the Company. In the event of any registration of any securities of the Company under the Securities Act, the Company will, and hereby does agree to, indemnify and hold harmless (i) in the case of any registration statement filed pursuant to Section 2.1 or 2.2, the Investor, its directors and officers, each other Person who participates as an underwriter in the offering or sale of such securities and each other Person, if any, who controls the Investor or any such underwriter within the meaning of the Securities Act, and (ii) in the case of any registration statement of the Company, the Investor, its directors and officers and each other Person, if any, who controls the Investor within the meaning of the Securities Act, against any losses, claims, damages or liabilities, joint or several, to which the Investor or any such director or officer or underwriter or controlling person may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which such securities were registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Company will reimburse the Investor and each such director, officer, underwriter and controlling person for any legal or any other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, liability, action or proceeding, provided that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement in reliance upon and in conformity with written information furnished to the Company through an instrument duly executed by the Investor specifically stating that it is for use in the preparation thereof and, provided further that the Company shall not be liable to any Person who participates as an underwriter in the offering or sale of Registrable Securities or to any other Person, if any, who controls such underwriter within the meaning of the Securities Act, in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of such Person's failure to send or give a copy of the final prospectus, as the same may be then supplemented or amended, within the time required by the Securities Act to the Person asserting the existence of an untrue statement or alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the sale of Registrable Securities to such Person if such statement or omission was corrected in such final prospectus. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Investor or any such director, officer, underwriter or controlling person and shall survive the transfer of such securities by the Investor. (b) Indemnification by the Investor. The Company may require, as a condition to including any Registrable Securities in any registration statement filed pursuant to Section 2.3, that the Company shall have received an undertaking satisfactory to it from the Investor to indemnify and hold harmless (in the same manner and to the same extent as set forth in subdivision (a) of this Section 2.6) the Company, each director of the Company, each officer of the Company and each other person, if any, who controls the Company within the meaning of the Securities Act, with respect to any statement or alleged statement in or omission or alleged omission from such registration statement, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto, if such statement or alleged statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company through an instrument duly executed by the Investor specifically stating that it is for use in the preparation of such registration statement, preliminary prospectus, final prospectus, summary prospectus, amendment or supplement. Any such indemnity shall remain in full force and effect, regardless of any investigation made by or on behalf of the Company or any such director, officer or controlling person and shall survive the transfer of such securities by the Investor. (c) Notices of Claims, etc. Promptly after receipt by an indemnified party of notice of the commencement of any action or proceeding involving a claim referred to in the preceding subdivisions of this Section 2.6, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party, give written notice to the latter of the commencement of such action, provided that the failure of any indemnified party to give notice as provided herein shall not relieve the indemnifying party of its obligations under the preceding subdivisions of this Section 2.6, except to the extent that the indemnifying party is actually prejudiced by such failure to give notice. In case any such action is brought against an indemnified party, unless in such indemnified party's reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist in respect of such claim, the indemnifying party shall be entitled to participate in and to assume the defense thereof, jointly with any other indemnifying party similarly notified, to the extent that the indemnifying party may wish, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the consent of the indemnified party, consent to entry of any judgment or enter into any settlement of any such action which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such action the defense of which has been assumed by an indemnifying party without the consent of such indemnifying party. (d) Other Indemnification. Indemnification similar to that specified in the preceding subdivisions of this Section 2.6 (with appropriate modifications) shall be given by the Company and the Investor with respect to any required registration or other qualification of securities under any Federal or state law or regulation of any governmental authority, other than the Securities Act. (e) Indemnification Payments. The indemnification required by this Section 2.6 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or expense, loss, damage or liability is incurred. (f) Contribution. If the indemnification provided for in the preceding subdivisions of this Section 2.6 is unavailable to an indemnified party in respect of any expense, loss, claim, damage or liability referred to therein, then each indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such expense, loss, claim, damage or liability (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Investor or underwriter, as the case may be, on the other from the distribution of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Investor or underwriter, as the case may be, on the other in connection with the statements or omissions which resulted in such expense, loss, damage or liability, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Investor or underwriter, as the case may be, on the other in connection with the distribution of the Registrable Securities shall be deemed to be in the same proportion as the total net proceeds received by the Company from the initial sale of the Registrable Securities by the Company to the purchasers pursuant to the Purchase Agreement bear to the gain, if any, realized by the Investor or the underwriting discounts and commissions received by the underwriter, as the case may be. The relative fault of the Company on the one hand and of the Investor or underwriter, as the case may be, on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission to state a material fact relates to information supplied by the Company, by the Investor or by the underwriter and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission, provided that the foregoing contribution agreement shall not inure to the benefit of any indemnified party if indemnification would be unavailable to such indemnified party by reason of the provisions contained in the first sentence of subdivision (a) of this Section 2.6, and in no event shall the obligation of any indemnifying party to contribute under this subdivision (f) exceed the amount that such indemnifying party would have been obligated to pay by way of indemnification if the indemnification provided for under subdivisions (a) or (b) of this Section 2.6 had been available under the circumstances. The Company and the Investor agree that it would not be just and equitable if contribution pursuant to this subdivision (f) were determined by pro rata allocation (even if the Investor and any underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth in the preceding sentence and subdivision (c) of this Section 2.6, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subdivision (f), neither the Investor nor any underwriter shall be required to contribute any amount in excess of the amount by which (i) in the case of the Investor, the net proceeds received by the Investor from the sale of Registrable Securities or (ii) in the case of an underwriter, the total price at which the Registrable Securities purchased by it and distributed to the public were offered to the public exceeds, in any such case, the amount of any damages that the Investor or underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. 3. Definitions. As used herein, unless the context otherwise requires, the following terms have the following respective meanings: Commission: The Securities and Exchange Commission or any other Federal agency at the time administering the Securities Act. Common Stock: As defined in Section 1. Company: As defined in the introductory paragraph of this Agreement. Exchange Act: The Securities Exchange Act of 1934, or any similar Federal statute, and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time. Reference to a particular section of the Securities Exchange Act of 1934 shall include a reference to the comparable section, if any, of any such similar Federal statute. Person: A corporation, an association, a partnership, an organization, business, an individual, a governmental or political subdivision thereof or a United States governmental agency. Registrable Securities: Any shares of stock issued to the Investor pursuant to the Stock Purchase Agreement and any securities issued or issuable with respect to any Common Stock referred to above by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization or otherwise. As to any particular Registrable Securities, once issued such securities shall cease to be Registrable Securities when (a) a registration statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been disposed of in accordance with such registration statement, (b) they shall have been distributed to the public pursuant to Rule 144 (or any successor provision) under the Securities Act, (c) they shall have been otherwise transferred, new certificates for them not bearing a legend restricting further transfer shall have been delivered by the Company and subsequent disposition of them shall not require registration or qualification of them under the Securities Act or any similar state law then in force, or (d) they shall have ceased to be outstanding. Registration Expenses: All expenses incident to the Company's performance of or compliance with this Agreement, including, without limitation, (i) all Commission, stock exchange or NASD registration and filing fees; (ii) all fees and expenses incurred in connection with compliance with state or other securities or blue sky laws and compliance with the rules of the NASD; (iii) all word processing, duplicating and printing, messenger, delivery or other expenses incurred in connection with the preparation, printing and distribution of any registration statement, prospectus, any amendments or supplements thereto, or other documents relating to the performance of and compliance with this Agreement; (iv) the fees and disbursements of counsel for the Company and of its independent public accountants, including the expenses of any special audits or "cold comfort" letters required by or incident to such performance and compliance; (v) the fees and disbursements of a single counsel and accountants retained by the Investor; (vi) premiums and other costs of policies of insurance against liabilities arising out of the public offering of the Registrable Securities being registered; and (vii) any fees and disbursements of underwriters customarily paid by issuers or sellers of securities, but excluding underwriting discounts and commissions and transfer taxes, if any; provided that, in any case where Registration Expenses are not to be borne by the Company, such expenses shall not include salaries of Company personnel or general overhead expenses of the Company, auditing fees, premiums or other expenses relating to liability insurance required by underwriters of the Company or other expenses for the preparation of financial statements or other data normally prepared by the Company in the ordinary course of its business or which the Company would have incurred in any event. Securities Act: The Securities Act of 1933, or any similar Federal statute, and the rules and regulations of the Commission thereunder, all as of the same shall be in effect at the time. References to a particular section of the Securities Act of 1933 shall include a reference to the comparable section, if any, of any such similar Federal statute. Stock Purchase Agreement: As defined in Section 1. 4. Rules 144 and 144A. So long as the Company shall not have filed a registration statement pursuant to Section 12 of the Exchange Act or a registration statement pursuant to the requirements of the Securities Act, the Company shall, at any time and from time to time, upon the request of the Investor and upon the request of any Person designated by the Investor as a prospective purchaser of any Registrable Securities, furnish in writing to the Investor or such prospective purchaser, as the case may be, a statement as of a date not earlier than 12 months prior to the date of such request of the nature of the business of the Company and the products and services it offers and copies of the Company's most recent balance sheet and profit and loss and retained earnings statements, together with similar financial statements for such part of the two preceding fiscal years as the Company shall have been in operation, all such financial statements to be audited to the extent audited statements are reasonably available, provided that, in any event the most recent financial statements so furnished shall include a balance sheet as of a date less than 16 months prior to the date of such request, statements of profit and loss and retained earnings for the 12 months preceding the date of such balance sheet, and, if such balance sheet is not as of a date less than 6 months prior to the date of such request, additional statements of profit and loss and retained earnings for the period from the date of such balance sheet to a date less than 6 months prior to the date of such request. If the Company shall have filed a registration statement pursuant to the requirements of Section 12 of the Exchange Act or a registration statement pursuant to the requirements of the Securities Act, the Company shall file the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the Commission thereunder (or, if the Company is not required to file such reports, will, upon the request of the Investor, make publicly available other information) and will take such further action as the Investor may reasonably request, all to the extent required from time to time to enable the Investor to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by (a) Rule 144 under the Securities Act, as such Rule may be amended from time to time, or (b) any similar rule or regulation hereafter adopted by the Commission. Upon the request of the Investor, the Company will deliver to the Investor a written statement as to whether it has complied with the requirements of this Section 4. 5. Amendments and Waivers. This Agreement may be amended at any time only by the written agreement of the Investor and the Company. 6. Nominees for Beneficial Owners. In the event that any Registrable Securities are held by a nominee for the Investor, the Investor thereof may, at its election, be treated as the holder of such Registrable Securities for purposes of any request or other action by the Investor pursuant to this Agreement or any determination of any number or percentage of shares of Registrable Securities held by the Investor contemplated by this Agreement. If the Investor so elects, the Company may require assurances reasonably satisfactory to it of the Investor's beneficial ownership of such Registrable Securities. 7. Notices. Except as otherwise provided in this Agreement, all notices, requests and other communications to any Person provided for hereunder shall be in writing and shall be given to such Person addressed to such party in the manner set forth in the Stock Purchase Agreement. Each such notice, request or other communication shall be effective (i) if given by mail, 72 hours after such communication is deposited in the mails with first class postage prepaid, addressed as aforesaid or (ii) if given by any other means (including, without limitation, by air courier), when delivered at the address specified above. 8. Assignment. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns. In addition, and whether or not any express assignment shall have been made, the provisions of this Agreement which are for the benefit of the parties hereto other than the Company shall also be for the benefit of and enforceable by any subsequent holder of any Registrable Securities, subject to the provisions respecting the minimum numbers or percentages of shares of Registrable Securities required in order to be entitled to certain rights, or take certain actions, contained herein. 9. Descriptive Headings. The descriptive headings of the several sections and paragraphs of this Agreement are inserted for reference only and shall not limit or otherwise affect the meaning hereof. 10. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF DELAWARE WITHOUT REFERENCE TO THE PRINCIPLES OF CONFLICTS OF LAWS. 11. Submission to Jurisdiction. Investor shall maintain at all times a duly appointed agent in the State of Delaware, which may be changed upon ten days notice to the Company, for the service of any process or summons in connection with any issue, litigation, arbitration, action or proceeding brought in any such court. Any such process or summons may also be served on it by mailing a copy of such process or summons to it in the manner provided in Section 7. Investor hereby irrevocably consents to the exclusive personal jurisdiction and venue of any Delaware state or United States Federal court of competent jurisdiction sitting in New Castle County, Delaware, in any action, claim or proceeding arising out of or in connection with this Agreement and agrees not to commence or prosecute any action, claim or proceeding in any other court. Investor hereby expressly and irrevocably waives and agrees not to assert the defense of lack of personal jurisdiction, forum non conveniencs or any similar defense with respect to the maintenance of any such action or proceeding in New Castle County, Delaware. 12. Company Actions. Notwithstanding any provisions of this Agreement, in the event any Company action, consent, approval or similar item is required to be obtained in connection herewith, such Company action shall require the approval of a majority of the Public Directors (as defined in the Stock Purchase Agreement.) 13. Counterparts. This Agreement may be executed simultaneously in two counterparts, each of which shall be deemed an original, but both such counterparts shall together constitute one and the same instrument. 14. Entire Agreement. This Agreement embodies the entire agreement and understanding between the Company and the Investor relating to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter. 15. Severability. If any provision of this Agreement, or the application of such provisions to any Person or circumstance, shall be held invalid, the remainder of this Agreement, or the application of such provision to Persons or circumstances other than those to which it is held invalid, shall not be affected thereby. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered by their respective officers thereunto duly authorized as of the date first above written. STILLWATER MINING COMPANY By: /s/ John R. Stark ------------------------- Name: John R. Stark Title: Vice President, Secretary and General Counsel NORIMET LIMITED By: /s/ Peter Holodny --------------------------- Name: Peter Holodny Title: President EX-99 5 closing.txt EXHIBIT 99.1 Exhibit 99.1 FOR IMMEDIATE RELEASE: June 23, 2003 CONTACT: John W. Pearson Sergey Polikarpov Stillwater Mining Company Norilsk Nickel 406-322-8742 +7 095 785 10 90 STILLWATER, MMC NORILSK NICKEL COMPLETE LARGEST RUSSIAN-AMERICAN ACQUISITION Columbus, Montana, June 23, 2003 - STILLWATER MINING COMPANY (NYSE:SWC) and MMC NORILSK NICKEL (RTS:GMKN) today closed a Stock Purchase Agreement, completing the largest transaction by a Russian company with an American corporation. In connection with the transaction, Stillwater issued 45,463,222 new shares of its common stock to Norimet Limited, a wholly-owned subsidiary of Norilsk Nickel, representing approximately 51 percent of Stillwater's shares. In consideration for the shares, Norimet paid Stillwater $100,000,540 in cash and approximately 877,000 ounces of palladium metal. Based on current palladium prices, the total consideration is valued at approximately $257 million. Norimet is obligated to commence a cash tender offer within 30 days to acquire up to 4,350,000 shares of Stillwater at $7.50 per share if the average closing price of Stillwater's shares is below that price during the 15 trading days after today's closing. This additional share purchase could increase Norilsk Nickel's ownership in Stillwater to approximately 56 percent. The company's Board of Directors is now comprised of nine directors, five Norimet appointees previously disclosed and four directors currently serving on the Stillwater board. The five Norimet appointees are Craig L. Fuller, Steven S. Lucas, The Honorable Donald W. Riegle Jr., Todd D. Schafer and Jack E. Thompson. The four continuing Stillwater directors are Francis R. McAllister who will continue as chairman and chief executive officer, Patrick M. James, Joseph P. Mazurek and Sheryl K. Pressler. McAllister said, "This is a unique transaction under unusual circumstances. The closing of this transaction strengthens Stillwater, the only significant primary producer of palladium in the Western Hemisphere. The investment made by our majority shareholder, Norilsk Nickel, brings much needed additional capital into the company to enable us, among other things, to reduce our debt." Norilsk Nickel chief executive officer Mikhail Prokhorov said, "We are extremely pleased and look forward to a mutually rewarding relationship with Stillwater. We believe this is a good business deal for both our companies and a strong step to further strengthen the U.S. Russian relationship overall." Stillwater is the only U.S. producer of palladium and platinum and is the largest primary producer of platinum group metals outside of South Africa. The company's shares are traded on the New York Stock Exchange under the symbol SWC. Incorporated in 1992, Chevron and Manville each owned 50 percent of Stillwater. In 1994, the company redeemed Chevron's 50 percent and completed an initial public offering reducing Manville's ownership to 27 percent. Subsequently, Manville sold its remaining ownership to institutional investors. At year-end 2002, the company had proven and probable ore reserves of 25.3 million ounces of palladium and platinum. Information on Stillwater Mining can be found at its Web site: www.stillwatermining.com. Norilsk Nickel is one of the world's leading mining companies and is the world's largest producer of nickel and palladium. Norilsk Nickel is also one of the leading producers of copper, platinum and gold. More information on MMC Norilsk Nickel can be found at its Web site: www.nornik.ru. ### -----END PRIVACY-ENHANCED MESSAGE-----