-----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, QpATkuR08x5b9loQ5KumnzsDxGyStdoqHVEYq9HKMrGp7/C4ViEHdd4L4agFxcJf dhQXuD5hsP9THIEG7kj8UA== 0001035704-02-000011.txt : 20020413 0001035704-02-000011.hdr.sgml : 20020413 ACCESSION NUMBER: 0001035704-02-000011 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20020104 EFFECTIVENESS DATE: 20020104 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: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-76314 FILM NUMBER: 2502213 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 S-8 1 d93240s-8.txt FORM S-8 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 4, 2002 REGISTRATION NO. 333-_______ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 STILLWATER MINING COMPANY (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 81-0480654 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER) 536 PIKE AVENUE COLUMBUS, MONTANA 59019 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE) ---------- STILLWATER MINING COMPANY 401(k) PLAN AND TRUST STILLWATER MINING COMPANY BARGAINING UNIT 401(k) PLAN AND TRUST (FULL TITLE OF THE PLANS) ---------- FRANCIS R. MCALLISTER CHIEF EXECUTIVE OFFICER STILLWATER MINING COMPANY 536 PIKE AVENUE COLUMBUS, MONTANA 59019 (406) 322-8700 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) ----------
======================================================================================================================= TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF TO BE REGISTERED REGISTERED OFFERING PRICE AGGREGATE OFFERING REGISTRATION FEE PER SHARE(1) PRICE(1) - ----------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.01 per share 2,000,000 $18.80 $ 37,600,000 $ 8,986.40 =======================================================================================================================
(1) Estimated solely for purposes of calculating the registration fee, pursuant to Rules 457(c) and (h) under the Securities Act of 1933, and based on the average of the high and low prices of the Common Stock as reported on the New York Stock Exchange on January 2, 2002. (2) This Registration Statement shall also cover any additional shares of the Company's Common Stock which become issuable under the Stillwater Mining Company 401(k) Plan and Trust or Bargaining Unit 401(k) Plan and Trust by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Company's receipt of consideration which results in an increase in the number of the outstanding shares of the Company's Common Stock. EXPLANATORY NOTE This Registration Statement relates to (i) 800,000 shares of Stillwater Mining Company (the "Company") common stock, $.01 par value per share ("Common Stock") that may be acquired by Company employees under the Company's 401(k) Plan and Trust, and (ii) 1,200,000 shares of Common Stock that may be acquired by Company employees under the Company's Bargaining Unit 401(k) Plan and Trust (the 401(k) Plan and Trust and the Bargaining Unit 401(k) Plan and Trust together, the "Plans"). One million five hundred thousand (1,500,000) shares of Common Stock have been previously registered for issuance under the Plans on the Company's Registration Statement on Form S-8 (Registration No. 333-70861) filed on January 20, 1999, the contents of which are incorporated by reference in this Registration Statement, of which 750,000 shares were registered for issuance under the Company's 401(k) Plan and Trust and 750,000 shares were registered for issuance under the Company's Bargaining Unit 401(k) Plan and Trust. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE. Stillwater Mining Company (the "Company") hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the "Commission"): (a) The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2000, filed with the Commission on March 30, 2001, pursuant to Section 13 of the Securities Act of 1934, as amended (the "1934 Act"); (b) The Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 2001, filed with the Commission on April 20, 2001, pursuant to Section 13 of the 1934 Act; (c) The Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 2001, filed with the Commission on July 19, 2001, pursuant to Section 13 of the 1934 Act; (d) The Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 2001, filed with the Commission on October 26, 2001, as amended by the Company's amendment to such Quarterly Report on Form 10-Q/A, filed with the Commission on November 14, 2001, pursuant to Section 13 of the 1934 Act; (e) The Company's Current Report on Form 8-K, filed with the Commission on December 10, 2001, pursuant to Section 13 of the 1934 Act; and (f) The Company's Registration Statement (No. 001-13053) on Form 8-A12B, filed with the Commission on June 13, 2001 pursuant to Section 12(b) of the 1934 Act, in which there is described the terms, rights and provisions applicable to the Company's outstanding Common Stock. All documents and reports subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold, or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents or reports. Any statement contained in a document incorporated or deemed to be incorporated by reference herein may be automatically updated or replaced by documents the Company subsequently files which also are or are deemed to be incorporated herein by reference. Any statement, information or document so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. II-1 ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation's board of directors to grant, indemnification to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933, as amended (the "1933 Act"). Insofar as indemnification for liabilities arising under the 1933 Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, the Company has been advised that in the opinion of the Commission, such indemnification is against public policy as expressed in the 1933 Act and is, therefore, unenforceable. Article 6 of the Company's Bylaws provides for mandatory indemnification of its directors and officers and permissible indemnification of employees and other agents to the maximum extent permitted by the Delaware General Corporation Law. The Company's Amended and Restated Certificate of Incorporation (the "Certificate of Incorporation") provides that, pursuant to Delaware law, its directors shall not be liable for monetary damages for breach of their fiduciary duty as directors to the Company or its stockholders. This provision in the Certificate of Incorporation does not eliminate the fiduciary duty of the directors, and in appropriate circumstances equitable remedies such as injunctive or other forms of non-monetary relief will remain available under Delaware law. In addition, each director will continue to be subject to liability for breach of the director's duty of loyalty to the Company for acts or omissions not in good faith or involving intentional misconduct, for knowing violations of law, for actions leading to improper personal benefit to the director, and for payment of dividends or approval of stock repurchases or redemptions that are unlawful under Delaware law. The provision in the Certificate of Incorporation also does not affect a director's responsibilities under any other law, such as the federal securities laws or state or federal environmental laws. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. II-2 ITEM 8. EXHIBITS. EXHIBIT NO. DESCRIPTION 4.1 Instruments Defining Rights of Stockholders. Reference is made to the Company's Registration Statement No. 001-13053 on Form 8-A12B, as amended, including the exhibits thereto, which are incorporated herein by reference pursuant to Item 3(f) to this Registration Statement. 5.1 Opinion and consent of Holland & Hart LLP. 23.1 Consent of KPMG LLP. 23.2 Consent of PricewaterhouseCoopers LLP. 23.3 Consent of Holland & Hart LLP is contained in Exhibit 5.1. 24.1 Power of Attorney. Reference is made to pages II-5 and 6 of this Registration Statement. The Company hereby undertakes to submit the Plans, and any amendments to the Plans, to the Internal Revenue Service ("IRS") in a timely manner, and will make all changes required by the IRS in order to qualify the Plans. ITEM 9. UNDERTAKINGS. (a) The Company hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement; (i) to include any prospectus required by Section 10(a)(3) of the 1933 Act; (ii) to reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment hereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; and (iii) to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Company pursuant to Section 13 or 15(d) of the 1934 Act that are incorporated by reference in the Registration Statement; (2) that, for the purpose of determining any liability under the 1933 Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and II-3 (3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold upon termination of the Company's 401(k) Plan and Trust or the Company's Bargaining Unit 401(k) Plan and Trust. (b) The Company hereby undertakes that, for purposes of determining any liability under the 1933 Act, each filing of the Company's annual report pursuant to Section 13(a) or 15(d) of the 1934 Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the 1934 Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the 1933 Act may be permitted to directors, officers or controlling persons of the Company pursuant to the indemnification provisions summarized in Item 6, or otherwise, the Company has been advised that in the opinion of the Commission, such indemnification is against public policy as expressed in the 1933 Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the 1933 Act and will be governed by the final adjudication of such issue. II-4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned thereunto duly authorized, in Columbus, Montana, on January 4, 2002. STILLWATER MINING COMPANY By: /s/ Francis R. McAllister ------------------------------------------------- Francis R. McAllister Chief Executive Officer and Chairman of the Board POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS: That each person whose signature appears below constitutes and appoints Francis R. McAllister, Chief Executive Officer and Chairman of the Board, and James A. Sabala, Vice President and Chief Financial Officer, and each of them, as such person's true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for such person and in such person's name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his or her substitutes, may lawfully do or cause to be done by virtue thereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ Francis R. McAllister *Chief Executive Officer and Chairman - ------------------------------------- of the Board (Principal Executive January 4, 2002 Francis R. McAllister Officer)
II-5
SIGNATURE TITLE DATE --------- ----- ---- /s/ James A. Sabala Vice President and Chief Financial Officer - -------------------------------------- (Principal Financial and Accounting Officer) January 4, 2002 James A. Sabala /s/ Richard E. Gilbert *Director January 4, 2002 - -------------------------------------- Richard E. Gilbert /s/ Apolinar Guzman *Director January 4, 2002 - -------------------------------------- Apolinar Guzman /s/ Patrick M. James *Director January 4, 2002 - -------------------------------------- Patrick M. James /s/ Joseph P. Mazurek *Director January 4, 2002 - ------------------------------------- Joseph P. Mazurek
*Together constituting a majority of the Company's board of directors. II-6 EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION - ----------- ----------- 4.1 Instruments Defining Rights of Stockholders. Reference is made to the Company's Registration Statement No. 001-13053 on Form 8-A12B, as amended, including the exhibits thereto, which are incorporated herein by reference pursuant to Item 3(f) to this Registration Statement. 5.1 Opinion and consent of Holland & Hart LLP. 23.1 Consent of KPMG LLP. 23.2 Consent of PricewaterhouseCoopers LLP. 23.3 Consent of Holland & Hart LLP is contained in Exhibit 5.1. 24.1 Power of Attorney. Reference is made to pages II-5 and 6 of this Registration Statement.
EX-5.1 3 d93240ex5-1.txt OPINION/CONSENT OF HOLLAND & HART LLP EXHIBIT 5.1 HOLLAND & HART LLP ATTORNEYS AT LAW DENVER o ASPEN SUITE 3200 TELEPHONE (303) 295-8000 BOULDER o COLORADO SPRINGS 555 SEVENTEENTH STREET FACSIMILE (303) 295-8261 DENVER TECH CENTER DENVER, COLORADO 80202-3979 BILLINGS o BOISE MAILING ADDRESS CHEYENNE o JACKSON HOLE P.O. BOX 8749 SALT LAKE CITY o SANTA FE DENVER, COLORADO 80201-8749 WASHINGTON, D.C.
January 4, 2002 Stillwater Mining Company 536 Pike Avenue Columbus, Montana 59019 RE: Stillwater Mining Company -- Registration Statement on Form S-8 Additional 2,000,000 Shares of Common Stock Ladies and Gentlemen: We have acted as counsel to Stillwater Mining Company, a Delaware corporation (the "Company") in connection with the registration statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended (the "Securities Act"), of an additional 2,000,000 shares of the Company's common stock, $.01 par value (the "Plan Shares"), authorized for issuance under the Company's 401(k) Plan and Trust and the Company's Bargaining Unit 401(k) Plan and Trust (together, the "Plans"). Of the 2,000,000 Plan Shares, 800,000 have been authorized for issuance under the Company's 401(k) Plan and Trust, and 1,200,000 have been authorized for issuance under the Company's Bargaining Unit 401(k) Plan and Trust. This opinion is being furnished in accordance with the requirements of Item 8 of Form S-8 and Item 601(b)(5) of Regulation S-K promulgated under the Securities Act. We have reviewed the Company's charter documents, the corporate proceedings taken by the Company in connection with the authorization and proposed issuance of the Plan Shares and such other documents and instruments as we have deemed necessary or appropriate for the expression of the opinion contained herein. Based on such review, we are of the opinion that, if, as, and when the Plan Shares are issued in accordance with the terms of the Plans and in the manner described in the Registration Statement, such shares will be legally issued, fully paid and non-assessable. We consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement. Stillwater Mining Company Page 2 January 4, 2002 This opinion letter is based solely upon, and is limited to, the General Corporation Law of the State of Delaware and the federal laws of the United States of America, to the extent applicable. This opinion letter is rendered as of the date first written above and we disclaim any obligation to advise you of facts, circumstances, events or developments which hereafter may be brought to our attention and which may alter, affect or modify the opinion expressed herein. Our opinion is expressly limited to the matters set forth above and we render no opinion, whether by implication or otherwise, as to any other matters relating to the Company, the Plans or the Plan Shares. Very truly yours, /s/ HOLLAND & HART LLP HOLLAND & HART LLP EX-23.1 4 d93240ex23-1.txt CONSENT OF KPMG LLP EXHIBIT 23.1 Independent Accountants' Consent The Board of Directors Stillwater Mining Company: We consent to the incorporation by reference in the registration statement on Form S-8 of Stillwater Mining Company of our report dated January 18, 2001, except for paragraphs four through seven of footnote 6, for which the date is February 23, 2001, with respect to the consolidated balance sheets of Stillwater Mining Company as of December 31, 2000 and 1999, and the related consolidated statements of operations, changes in shareholders' equity, and cash flows for the years then ended, incorporated herein by reference. /s/ KPMG LLP Billings, Montana January 4, 2002 EX-23.2 5 d93240ex23-2.txt CONSENT OF PRICEWATERHOUSECOOPERS LLP EXHIBIT 23.2 Consent of Independent Accountants We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 3, 1999 relating to the consolidated financial statements, which appears in Stillwater Mining Company's Annual Report on Form 10-K for the year ended December 31, 2000. /s/ PricewaterhouseCoopers LLP Denver, Colorado January 4, 2001 -----END PRIVACY-ENHANCED MESSAGE-----