UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 28, 2017
Stillwater Mining Company
(Exact name of registrant as specified in its charter)
| DE | 001-13053 | 81-0480654 | ||
| (State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification Number) |
| 26 West Dry Creek Circle, Suite 400, Littleton, Colorado |
80120 | |
| (Address of principal executive offices) | (Zip Code) |
(406) 373-8700
(Registrant’s telephone number, including area code)
Not Applicable
(Former Name or Former Address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 1.01 | Entry into a Material Definitive Agreement. |
1.75% Convertible Senior Notes due 2032 (the “2032 Notes”) – Second Supplemental Indenture
In connection with the closing of the Merger (as defined in Item 2.01 of this Current Report on Form 8-K), Stillwater Mining Company (the “Company”) and Delaware Trust Company, as successor-in-interest to Law Debenture Trust Company of New York (the “Trustee”) entered into a Second Supplemental Indenture, dated as of May 4, 2017 (the “2032 Notes Second Supplemental Indenture”), to the Indenture, dated as of November 29, 2010 (the “2032 Notes Base Indenture”), by and between the Company and the Trustee, as amended and supplemented by that certain First Supplemental Indenture, dated as of October 17, 2012 (the “2032 Notes First Supplemental Indenture” and, together with the 2032 Notes Base Indenture, as amended and supplemented by the 2032 Notes First Supplemental Indenture and the 2032 Notes Second Supplemental Indenture, the “2032 Notes Indenture”) relating to the 2032 Notes.
The 2032 Notes Second Supplemental Indenture provides that, at and after the effective time of the Merger (the “Effective Time”), the right to convert each $1,000 principal amount of 2032 Notes is changed into a right to convert such principal amount of 2032 Notes into, and the consideration due upon conversion of each $1,000 principal amount of 2032 Notes shall be solely, cash in an amount equal to the Applicable Conversion Rate (as defined in the 2032 Notes Indenture), as may be increased by Additional Shares (as defined in the 2032 Notes Indenture) pursuant to Section 10.03 of the 2032 Notes First Supplemental Indenture, in effect on the relevant conversion date, multiplied by the Merger Consideration (as defined in Section 2.01 of this Current Report on Form 8-K).
The foregoing description of the 2032 Notes Second Supplemental Indenture is only a summary and is subject to, and entirely qualified by reference to, the full text of the 2032 Notes Second Supplemental Indenture, a copy of which is attached hereto as Exhibit 4.1 and is incorporated by reference herein.
1.875% Convertible Senior Notes due 2028 (the “2028 Notes”) – First Supplemental Indenture
In connection with the closing of the Merger (as defined in Item 2.01 of this Current Report on Form 8-K), the Company and the Trustee entered into a First Supplemental Indenture, dated as of May 4, 2017 (the “2028 Notes First Supplemental Indenture”), to the Indenture, dated as of March 12, 2008 (the “2028 Notes Base Indenture” and, as amended and supplemented by the First Supplemental Indenture, the “2028 Notes Indenture”), by and between the Company and the Trustee, relating to the 2028 Notes.
The 2028 Notes First Supplemental Indenture provides that, at and after the Effective Time, the right to convert each $1,000 principal amount of 2028 Notes is changed into a right to convert such principal amount of 2028 Notes into, and the consideration due upon conversion of each $1,000 principal amount of 2028 Notes shall be solely, cash in an amount equal to the Conversion Rate (as defined in the 2028 Notes Base Indenture) in effect on the relevant conversion date, multiplied by the Merger Consideration (as defined in Section 2.01 of this Current Report on Form 8-K).
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The foregoing description of the 2028 Notes First Supplemental Indenture is only a summary and is subject to, and entirely qualified by reference to, the full text of the 2028 Notes First Supplemental Indenture, a copy of which is attached hereto as Exhibit 4.2 and is incorporated by reference herein).
| Item 2.01 | Completion of Acquisition or Disposal of Assets. |
On May 4, 2017, the Company completed its previously announced merger with Thor Mergco Inc. (“Merger Sub”), an indirect wholly owned subsidiary of Sibanye Gold Limited (“Sibanye”), whereby Merger Sub was merged with and into the Company (the “Merger”), with the Company remaining as the surviving corporation and as a wholly owned subsidiary of Sibanye. At the Effective Time (as defined in Item 1.01 of this Current Report on Form 8-K), and pursuant to the terms of the Agreement and Plan of Merger (the “Merger Agreement”), dated as of December 9, 2016, among the Company, Sibanye, Thor US HoldCo Inc. (“US Holdco”) and Merger Sub, each share of common stock of the Company, par value $0.01 per share (the “Shares”) outstanding immediately prior to the Effective Time (other than Shares owned by the Company, Sibanye or their respective subsidiaries or Shares with respect to which appraisal rights were validly exercised and not lost in accordance with Delaware law), was automatically canceled and converted into the right to receive $18.00 per share in cash without interest (the “Merger Consideration”).
Pursuant to the Merger Agreement and in connection with the closing of the Merger, each outstanding Company stock option and restricted stock unit award was immediately vested and converted into the right to receive a cash payment equal to the product of (1) the number of Shares subject to such award and (2) the per share Merger Consideration price (less, in the case of stock options, the exercise price per share), less any applicable taxes.
The description of the Merger contained herein is only a summary, is not complete and is subject to and qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which was filed as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed on December 9, 2016, the terms of which are incorporated herein by reference.
The Merger Agreement and the above description have been included to provide investors and security holders with information regarding the terms of the Merger Agreement. They are not intended to provide any other factual information about the Company, Sibanye, US Holdco and Merger Sub or their respective subsidiaries or affiliates or equity holders. The representations, warranties and covenants contained in the Merger Agreement were made only for purposes of that agreement and only as of specific dates, were solely for the benefit of the parties to the Merger Agreement and may be subject to limitations agreed upon by the parties, including by being qualified by confidential disclosures made by each contracting party to the other for the purposes of allocating contractual risk between them that differ from those applicable to investors. Investors should be aware that the representations, warranties and covenants or any description thereof may not reflect the actual state of facts or condition of the Company, Sibanye, US Holdco and Merger Sub or any of their respective subsidiaries, affiliates or equity holders. Moreover, information concerning the subject matter of the representations,
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warranties and covenants may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in public disclosures by the parties thereto. Accordingly, investors should read the public disclosures of the Company, Sibanye and their respective subsidiaries, including the Company’s filings with the U.S. Securities and Exchange Commission (the “SEC”).
| Item 2.04 | Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement. |
2032 Notes
As a result of the Merger and pursuant to the 2032 Notes Indenture, subject to certain conditions, each holder of the 2032 Notes has the right (the “Fundamental Change Repurchase Right”), at such holder’s option, to require the Company to repurchase for cash such holder’s 2032 Notes, or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple of $1,000, on the Fundamental Change Repurchase Date, as defined in the 2032 Notes Indenture (the “Fundamental Change Repurchase Date”).
In addition, pursuant to the terms and conditions of the 2032 Notes Indenture, the 2032 Notes are currently convertible at the option of the holders thereof. Holders of 2032 Notes have the right, subject to certain conditions, at such holder’s option, to surrender the 2032 Notes for conversion to Continental Stock Transfer & Trust Company, as conversion agent (the “Conversion Agent”) at any time from and including April 27, 2017, the business day after the Company gave holders notice of the Merger (as defined in Item 2.01 of this Current Report on Form 8-K), until the Fundamental Change Repurchase Date (the “Conversion Period”). If a holder surrenders 2032 Notes for conversion to the Conversion Agent at any time from and including May 4, 2017, the date on which the Make-Whole Fundamental Change occurred, the Business Day immediately prior to the Fundamental Change Purchase Date (such period, the “Make-Whole Conversion Period”), the Company’s conversion obligation with respect to each $1,000 principal amount of 2032 Notes that are converted during the Make-Whole Conversion Period is fixed at an amount in cash equal to the Applicable Conversion Rate of 75.2905 (such Applicable Conversion Rate including additional shares of Company Common Stock as provided in the Indenture) for each $1,000 principal amount of the Notes, multiplied by $18.00 (i.e., the Merger Consideration). If a holder surrenders 2032 Notes for conversion before or after the Make-Whole Conversion Period, but during the Conversion Period, a holder would receive an amount in cash equal to the Applicable Conversion Rate of 62.9664 for each $1,000 principal amount of the 2032 Notes, multiplied by $18.00 (i.e., the Merger Consideration). The Company intends to provide notice to holders regarding the procedures and terms for the repurchase and conversion of the 2032 Notes within 10 business days following the Merger, in accordance with the terms of the 2032 Notes Indenture.
Assuming that each holder exercised the Fundamental Change Repurchase Right, the Company would be obligated to make aggregate payments of approximately $336 million.
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Assuming that each holder exercised the conversion right in connection with the Merger during the Make-Whole Conversion Period, the Company would be obligated to make aggregate payments of approximately $454.2 million.
Assuming that each holder exercised the conversion right in connection with the Merger during the Conversion Period but not during the Make-Whole Conversion Period, the Company would be obligated to make aggregate payments of approximately $379.9 million.
The right of holders to convert their 2032 Notes is separate from the Fundamental Change Repurchase Right. Holders may only exercise one of either the Fundamental Change Repurchase Right or the conversion right.
| Item 3.01 | Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing. |
On April 28, 2017, the Company filed with the SEC an application on Form 25 in order to delist and to deregister the Shares under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
On or about May 8, 2017, the Company intends to file with the SEC a Form 15 that requests that the reporting obligations of the Company under Sections 13 and 15(d) of the Exchange Act be suspended.
| Item 3.03 | Material Modification to Rights of Security Holders. |
The information contained in Items 2.01, 3.01, 5.01 and 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 3.03.
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| Item 5.01 | Changes in Control of Registrant. |
A change of control of the Company occurred on May 4, 2017 upon the filing of the certificate of merger with the Secretary of State of the State of Delaware, at which time Merger Sub merged with and into the Company. As a result of the Merger, the Company became an indirect, wholly owned subsidiary of Sibanye.
The disclosures under Item 2.01 and Item 3.01 above are incorporated herein by reference.
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
In accordance with the terms of the Merger Agreement, at the Effective Time, Richard Stewart and Charl Keyter, the directors of Merger Sub immediately prior to the Effective Time, became the directors of the Company. Accordingly, each of George M. Bee, Michael J. McMullen, Patrice E. Merrin, Lawrence Peter O’Hagan, Michael S. Parrett, Brian D. Schweitzer and Gary A. Sugar ceased serving as members of the Company’s board of directors as of the Effective Time. In accordance with the terms of the Merger Agreement, at the Effective Time, the officers of the Company immediately prior to the Effective Time continued to serve as officers of the Company.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Changes in Fiscal Year. |
At the Effective Time on May 4, 2017 and pursuant to the Merger Agreement, (i) the certificate of incorporation of Merger Sub, as in effect immediately prior to the Effective Time, became the Amended and Restated Certificate of Incorporation of the Company (the “Amended and Restated Certificate of Incorporation”), as the surviving corporation in the Merger; and (ii) the bylaws of Merger Sub, as in effect immediately prior to the Effective Time, became the Amended and Restated Bylaws of the Company (the “Amended and Restated Bylaws”), as the surviving corporation in the Merger, except that, in each case, references to the name of Merger Sub have been replaced with references to the name of the Company.
The foregoing descriptions of the Amended and Restated Certificate of Incorporation and the Amended and Restated Bylaws are not complete and are subject to and qualified in their entirety by reference to the Amended and Restated Certificate of Incorporation and the Amended and Restated Bylaws, copies of which are attached hereto as Exhibit 3.1 and Exhibit 3.2, respectively, and are incorporated herein by reference.
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| Item 9.01. | Financial Statements and Exhibits. |
| Exhibit 2.1 | Agreement and Plan of Merger, dated as of December 9, 2016, by and among Stillwater Mining Company, Sibanye Gold Limited, Thor US HoldCo Inc. and Thor Mergco Inc. (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K filed on December 9, 2016) | |
| Exhibit 3.1 | Amended and Restated Certificate of Incorporation of Stillwater Mining Company* | |
| Exhibit 3.2 | Amended and Restated Bylaws of Stillwater Mining Company* | |
| Exhibit 4.1 | Second Supplemental Indenture, dated May 4, 2017, by and between Stillwater Mining Company and Delaware Trust Company, as successor-in-interest to Law Debenture Trust Company of New York, as trustee* | |
| Exhibit 4.2 | First Supplemental Indenture, dated May 4, 2017, by and between Stillwater Mining Company and Delaware Trust Company, as successor-in-interest to Law Debenture Trust Company of New York, as trustee* | |
| * | Filed herewith. |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Dated: May 4, 2017 | STILLWATER MINING COMPANY | |||||
| By: | /s/ Christopher M. Bateman | |||||
| Christopher M. Bateman | ||||||
| Chief Financial Officer | ||||||
Exhibit Index
| Exhibit |
Description | |
| 2.1 | Agreement and Plan of Merger, dated as of December 9, 2016, by and among Stillwater Mining Company, Sibanye Gold Limited, Thor US HoldCo Inc. and Thor Mergco Inc. (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K filed on December 9, 2016) | |
| 3.1 | Amended and Restated Certificate of Incorporation of Stillwater Mining Company* | |
| 3.2 | Amended and Restated Bylaws of Stillwater Mining Company* | |
| 4.1 | Second Supplemental Indenture, dated May 4, 2017, by and between Stillwater Mining Company and Law Debenture Trust Company of New York, as trustee* | |
| 4.2 | First Supplemental Indenture, dated May 4, 2017, by and between Stillwater Mining Company and Delaware Trust Company, as successor-in-interest to Law Debenture Trust Company of New York, as trustee* | |
| * | Filed herewith. |
Exhibit 3.1
FIFTH RESTATED CERTIFICATE OF INCORPORATION
OF
STILLWATER MINING COMPANY
FIRST: The name of the Corporation is Stillwater Mining Company
SECOND: The address of the Corporation’s registered office in the State of Delaware is c/o The Prentice-Hall Corporation System, Inc., 2711 Centerville Road, Suite 400, Wilmington, DE 19808, New Castle County. The name of the Corporation’s registered agent at such address is The Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the Corporation is to engage, directly or indirectly, in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware, as from time to time in effect.
FOURTH: The total number of shares of capital stock that the Corporation has authority to issue is one million (1,000,000) shares of common stock, par value $0.001 per share.
FIFTH: To the fullest extent permitted by the General Corporation Law of the State of Delaware or any other applicable laws presently or hereafter in effect, no director of the Corporation will be personally liable to the Corporation or its stockholders for or with respect to any acts or omissions in the performance of his or her duties as a director of the Corporation, provided that nothing contained in this Article FIFTH shall eliminate or limit the liability of a director (i) for any breach of such director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of the State of Delaware or (iv) for any transaction from which such director derived an improper personal benefit. Any repeal or modification of this Article FIFTH will not adversely affect any right or protection of a director of the Corporation existing immediately prior to such repeal or modification.
SIXTH: The Corporation shall indemnify its directors and officers to the fullest extent authorized or permitted by law presently or hereafter in effect, and such right to indemnification shall continue as to a person who has ceased to be a director or officer of the Corporation and shall inure to the benefit of his or her heirs, executors and personal and legal representatives; provided, however, that except for proceedings to enforce rights to indemnification, the Corporation shall not be obligated to indemnify any director or officer (or his or her heirs, executors or personal or legal representatives) in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors. The right to indemnification conferred by this Article SIXTH shall include the right to be paid by the Corporation the expenses incurred in defending or otherwise participating in any proceeding in advance of its final disposition.
The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation similar to those conferred in this Article SIXTH to directors and officers of the Corporation.
The rights to indemnification and to the advance of expenses conferred in this Article SIXTH shall not be exclusive of any other right which any person may have or hereafter acquire under this Fifth Restated Certificate of Incorporation, the By-Laws of the Corporation, any statute, agreement, vote of stockholders or disinterested directors or otherwise.
SEVENTH: In furtherance and not in limitation of the rights, powers, privileges, and discretionary authority granted or conferred by the General Corporation Law of the State of Delaware or other statutes or laws of the State of Delaware, the Board of Directors is expressly authorized to make, alter, amend or repeal the By-Laws of the Corporation, without any action on the part of the stockholders, but the stockholders may make additional By-laws and may alter, amend or repeal any By-Law, whether adopted by them or otherwise. The Corporation may in its By-Laws confer powers upon the Board of Directors in addition to the foregoing and in addition to the powers and authorities expressly conferred upon the Board of Directors by applicable law.
EIGHTH: The Corporation reserves the right at any time and from time to time to amend, alter, change or repeal any provision contained in this Fifth Restated Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force that may be added or inserted, in the manner now or hereafter prescribed herein or by applicable law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Fifth Restated Certificate of Incorporation in its present form or as hereafter amended are granted subject to this reservation.
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Exhibit 3.2
STILLWATER MINING COMPANY
AMENDED AND RESTATED BY-LAWS
Adopted on May 4, 2017
ARTICLE I
Meetings of Stockholders
Section 1. Place of Meeting and Notices. Meetings of the stockholders of Stillwater Mining Company, a Delaware corporation (the “Corporation”), shall be held at such place either within or without the State of Delaware as the Board of Directors may determine.
Section 2. Annual and Special Meetings. Annual meetings of stockholders shall be held, at a date, time and place fixed by the Board of Directors and stated in the notice of meeting, to elect a Board of Directors and to transact such other business as may properly come before the meeting. Special meetings of the stockholders may be called by the President for any purpose and shall be called by the President or Secretary if directed by the Board of Directors.
Section 3. Notice. Except as otherwise provided by law, at least 10 and not more than 60 days before each meeting of stockholders, written notice of the time, date and place of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be given to each stockholder.
Section 4. Quorum. At any meeting of stockholders, the holders of record, present in person or by proxy, of a majority of the Corporation’s issued and outstanding capital stock shall constitute a quorum for the transaction of business, except as otherwise provided by law. In the absence of a quorum, any officer entitled to preside at or to act as secretary of the meeting shall have power to adjourn the meeting from time to time until a quorum is present.
Section 5. Voting. Except as otherwise provided by law, all matters submitted to a meeting of stockholders shall be decided by vote of the holders of record, present in person or by proxy, of a majority of the Corporation’s issued and outstanding capital stock.
Section 6. Action Without Meeting. Any action required to be taken at any annual or special meeting of stockholders or any action which may be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if consent in writing setting forth the action so taken shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.
ARTICLE II
Directors
Section 1. Number, Election and Removal of Directors. The number of Directors that shall constitute the Board of Directors shall not be fewer than one or more than five (5). The number of Directors shall be determined by the Board of Directors or the stockholders. The Directors shall be elected by the stockholders at their annual meeting. Vacancies and newly created directorships resulting from any increase in the number of Directors may be filled by a majority of the Directors then in office, although less than a quorum, or by the sole remaining Directors or by the stockholders. A Director may be removed with or without cause by the stockholders.
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Section 2. Meetings. Regular meetings of the Board of Directors shall be held at such times and places as may from time to time be fixed by the Board of Directors or as may be specified in a notice of meeting. Special meetings of the Board of Directors may be held at any time upon the request of the President and shall be called by the President and Secretary if directed by the Board of Directors.
Section 3. Electronic Meetings. Meetings of the Board of Directors or of any committee thereof may be held by means of telephone or video conferencing or other communications equipment by means of which all persons participating in the meeting can hear each other and be heard. Participation by a Director in a meeting pursuant to this Section 3 shall constitute presence in person at such meeting.
Section 4. Notice. Notice need not be given of regular meetings of the Board of Directors. At least one business day before each special meeting of the Board of Directors, written or oral (either in person or by telephone) notice of the time, date and place of the meeting and the purpose or purposes for which the meeting is called, shall be given to each Director; provided that notice of any meeting need not be given to any Director who shall be present at such meeting (in person or by telephone) or shall waive notice thereof in writing either before or after such meeting.
Section 5. Quorum. A majority of the total number of Directors shall constitute a quorum for the transaction of business. If a quorum is not present at any meeting of the Board of Directors, the Directors present may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation, by these By-Laws or by any contract or agreement to which the Corporation is a party, the act of a majority of the Directors present at any meeting at which there is a quorum shall constitute an act of the Board of Directors.
Section 6. Action Without Meeting. Unless otherwise restricted by the Certificate of Incorporation or these By-laws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if all Directors or members of such committee, as the case may be, consent thereto in writing or by electronic transmission, and the writings or electronic transmissions are filed with the minutes of proceedings of the Board of Directors or committee in accordance with applicable law.
Section 7. Compensation. Directors shall not receive any stated salary for their services as directors or as members of committees, but by resolution of the Board of Directors a fixed fee and expenses of attendance may be allowed for attendance at each meeting. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity as an officer, agent or otherwise, and receiving compensation therefor.
ARTICLE III
Officers
The officers of the Corporation shall consist of a President, a Secretary and a Treasurer, and such other additional officers with such titles as the Board of Directors shall determine from time to time, all of which shall be chosen by and shall serve at the pleasure of the Board of Directors. Any one or more persons may hold any or all of such offices from time to time. Such officers shall have the customary powers and shall perform all the customary duties incident to their respective offices. All officers shall be subject to the supervision and direction of the Board of Directors. The authority, duties or responsibilities of any officer of the Corporation may be suspended by the President with or without cause. Any officer elected or appointed by the Board of Directors may be removed by the Board of Directors with or without cause.
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ARTICLE IV
Indemnification of Officers and Directors
Section 1. Right of Indemnification. Every person now or hereafter serving as a director or officer of the Corporation and every such director or officer serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall be indemnified by the Corporation in accordance with and to the fullest extent permitted by law for the defense of, or in connection with, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative.
Section 2. Expenses. Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding as authorized by the Board of Directors in the specific case upon receipt of an undertaking by or on behalf of such director or officer to repay such amount unless it shall ultimately be determined that he is entitled to be indemnified by the Corporation as authorized in this Article IV.
Section 3. Procedure for Indemnification. Any indemnification under this Article IV Section 1 or any advance of expenses under this Article IV Section 2 shall be made only against a written request therefor (together with supporting documentation) submitted by or on behalf of the person seeking indemnification or advance. Indemnification may be sought by a person under this Article IV Section 1 in respect of a proceeding only to the extent that both the liabilities for which indemnification is sought and all portions of the proceeding relevant to the determination of whether the person has satisfied any appropriate standard of conduct have become final. A person seeking indemnification or advance of expenses may seek to enforce such person’s rights to indemnification or advance of expenses (as the case may be) in the Delaware Court of Chancery to the extent all or any portion of a requested indemnification has not been granted within ninety days of, or to the extent all or any portion of a requested advance of expenses has not been granted within twenty days of, the submission of such request. All expenses (including reasonable attorneys’ fees) incurred by such person in connection with successfully establishing such person’s right to indemnification or advancement of expenses under this Article, in whole or in part, shall also be indemnified by the Corporation.
Section 4. Burden of Proof.
a) In any proceeding brought to enforce the right of a person to receive indemnification to which such person is entitled under this Article IV Section 1, the Corporation has the burden of demonstrating that the standard of conduct applicable under the General Corporation Law of the State of Delaware (the “DGCL”) or other applicable law was not met. A prior determination by the Corporation (including its Board of Directors or any committee thereof, its independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct does not itself constitute evidence that the claimant has not met the applicable standard of conduct.
b) In any proceeding brought to enforce a claim for advances to which a person is entitled under this Article IV Section 2, the person seeking an advance need only show that he has satisfied the requirements expressly set forth in this Article IV Section 2.
Section 5. Contract Right, Non-Exclusivity, and Survival.
a) The rights to indemnification and advancement of expenses provided by this Article IV shall be deemed to be separate contract rights between the Corporation and each director and officer who serves in any such capacity at any time while these provisions as well as the relevant provisions of the DGCL are in effect, and no repeal or modification of any of these provisions or any
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relevant provisions of the DGCL shall adversely affect any right or obligation of such director or officer existing at the time of such repeal or modification with respect to any state of facts then or previously existing or any proceeding previously or thereafter brought or threatened based in whole or in part upon any such state of facts. Such contract rights may not be modified retroactively as to any present or former director or officer without the consent of such director or officer.
b) The right of indemnification herein provided shall not be deemed exclusive of any other rights to which any such director or officer may now or hereafter be entitled under any by-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such person.
c) The rights to indemnification and advancement of expenses provided by this Article IV to any present or former director or officer of the Corporation shall inure to the benefit of the heirs, executors and administrators of such person.
Section 6. Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was or has agreed to become a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person or on such person’s behalf in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of this Article.
Section 7. Employees and Agents. The Board of Directors, or any officer authorized by the Board of Directors generally or in the specific case to make indemnification decisions, may cause the Corporation to indemnify any present or former employee or agent of the Corporation in such manner and for such liabilities as the Board of Directors may determine, up to the fullest extent permitted by the DGCL and other applicable law.
Section 8. Severability. If this Article or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify each director or officer of the Corporation as to costs, charges and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative, including an action by or in the right of the Corporation, to the fullest extent permitted by any applicable portion of this Article that shall not have been invalidated and to the fullest extent permitted by applicable law.
ARTICLE V
General Provisions
Section 1. Fiscal Year. The fiscal year of the Corporation shall be fixed by the Board of Directors.
Section 2. Corporate Books. The books and records of the Corporation may be kept at such place within or outside the State of Delaware as the Board of Directors may from time to time determine.
Section 3. Delaware Forum Selection. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim for breach of a fiduciary duty owed by any director, officer, employee or agent of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the General Corporation Law of the State of Delaware, the
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Certificate of Incorporation or the By-laws of the Corporation or (iv) any action asserting a claim governed by the internal affairs doctrine, in each case subject to said Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein.
Section 4. Certificates of Stock. A certificate of stock may be issued to each stockholder certifying the number of shares owned by such stockholder in the Corporation, or shares may be uncertificated. Certificates of stock of the Corporation shall be of such form and device as the Board of Directors may from time to time determine.
Section 5. Lost Certificates. A new certificate of stock may be issued in the place of any certificate theretofore issued by the Corporation, alleged to have been lost or destroyed, and the Board of Directors may, in its discretion, require the owner of the lost or destroyed certificate, or such owner’s legal representatives, to give the Corporation a bond, in such sum as they may direct, not exceeding double the value of the stock, to indemnify the Corporation against any claim that may be made against it on account of the alleged loss of any such certificate, or the issuance of any such new certificate.
Section 6. Transfer of Shares. The shares of stock of the Corporation shall be transferable only upon its books by the holders thereof in person or by their duly authorized attorneys or legal representatives, and upon such transfer the old certificates shall be surrendered to the Corporation by the delivery thereof to the person in charge of the stock and transfer books and ledgers, or to such other person as the Board of Directors may designate, by whom they shall be cancelled, and new certificates shall thereupon be issued. A record shall be made of each transfer and whenever a transfer shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of the transfer.
Section 7. Dividends. Subject to the provisions of the Certificate of Incorporation of the Corporation, the Board of Directors may, out of funds legally available therefor at any regular or special meeting, declare dividends upon stock of the Corporation as and when they deem appropriate. Before declaring any dividend there may be set apart out of any funds of the Corporation available for dividends, such sum or sums as the Board of Directors from time to time in their discretion deem proper for working capital or as a reserve fund to meet contingencies or for equalizing dividends or for such other purposes as the Board of Directors shall deem conducive to the interests of the Corporation.
ARTICLE VI
Amendments
These By-Laws may be altered, amended or repealed at any annual meeting of the stockholders (or at any special meeting thereof if notice of such proposed alteration, amendment or repeal to be considered is contained in the notice of such special meeting) by the affirmative vote of the holders of shares constituting a majority of the voting power of the Corporation. Except as otherwise provided in the Certificate of Incorporation of the Corporation, the Board of Directors may by majority vote of those present at any meeting at which a quorum is present alter, amend or repeal these By-Laws, or enact such other By-Laws as in their judgment may be advisable for the regulation and conduct of the affairs of the Corporation.
ARTICLE VII
Construction
In the event of any conflict between the provisions of these By-laws as in effect from time to time and the provisions of the Certificate of Incorporation of the Corporation as in effect from time to time, the provisions of such Certificate of Incorporation shall be controlling. References in these By-laws to Articles and Sections shall refer to Articles and Sections hereof.
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Exhibit 4.1
SECOND SUPPLEMENTAL INDENTURE
between
STILLWATER MINING COMPANY
and
DELAWARE TRUST COMPANY,
as Trustee
Dated as of May 4, 2017
Supplemental to Indenture for Debt Securities
Dated as of November 29, 2010
1.75% Convertible Senior Notes due 2032
SECOND SUPPLEMENTAL INDENTURE dated as of May 4, 2017 between STILLWATER MINING COMPANY, a Delaware corporation, as issuer (the “Company”) and DELAWARE TRUST COMPANY, a New York banking corporation, as successor in interest to LAW DEBENTURE TRUST COMPANY OF NEW YORK, a New York banking corporation, as trustee (the “Trustee”) supplementing the Indenture for Debt Securities dated as of November 29, 2010 between the Company and the Trustee (the “Base Indenture” and, as amended and supplemented by the First Supplemental Indenture, the “Indenture”).
W I T N E S S E T H
WHEREAS, the Company and the Trustee have heretofore entered into the Base Indenture, as amended and supplemented by that certain First Supplemental Indenture, dated as of October 17, 2012, between the Company and the Trustee (the “First Supplemental Indenture”), to provide for the issuance of the Company’s 1.75% Convertible Senior Notes due 2032 (the “Notes”);
WHEREAS, the Company, Sibanye Gold Limited (“Parent”), Thor US Holdco Inc. (“US Holdco”) and Thor Mergco Inc., a wholly owned subsidiary of Parent (“Merger Sub”), entered into an Agreement and Plan of Merger, dated as of December 9, 2016 (as amended, modified, supplemented or amended and restated from time to time, the “Merger Agreement”);
WHEREAS, pursuant to the Merger Agreement, Merger Sub will merge with and into the Company, with the Company continuing as the surviving corporation (the “Merger”);
WHEREAS, as a result of the Merger, the Company will be a wholly owned subsidiary of Parent and, at the effective time of the Merger, each issued and outstanding share of the Company’s common stock, par value $0.01 per share (the “Common Stock”) then outstanding shall be converted into the right to receive $18.00 in cash without interest (the “Merger Consideration”), and holders of shares of Common Stock will be entitled to exchange their shares of Common Stock for Merger Consideration;
WHEREAS, Article 9 of the First Supplemental Indenture permits the Company to merge with another Person so long as certain conditions have been met;
WHEREAS, Section 10.07 of the First Supplemental Indenture provides, among other things, that in the case of any Merger Event pursuant to which holders of the outstanding Common Stock are entitled to receive cash, securities or other property, then, at and after the effective time of such Merger Event, the Holders shall be entitled thereafter to convert their Notes into the kind and amount of cash, securities or other property that a holder of one share of Common Stock would have owned or been entitled to receive upon such Merger Event;
WHEREAS, Section 10.07 of the First Supplemental Indenture also provides that upon a Merger Event, the Company or the successor or purchasing corporation, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 8.02(h) of the First Supplemental Indenture providing for such change in the right to convert each $1,000 principal amount of Notes;
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WHEREAS, as a result of the Merger, pursuant to Section 10.07 of the First Supplemental Indenture, each $1,000 principal amount of Notes will be convertible into cash in an amount equal to the Applicable Conversion Rate in effect on the Conversion Date (as may be increased due to Additional Shares pursuant to Section 10.03 of the First Supplemental Indenture) multiplied by the Merger Consideration; and
WHEREAS, Section 8.02(h) provides that the Company and the Trustee may enter into a supplemental indenture without consent of the Holders to provide for a change in the right to convert the Notes in connection with any Merger Event pursuant to, and in accordance with, Section 10.07 of the First Supplemental Indenture.
NOW, THEREFORE, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby mutually covenant and agree for the equal and proportionate benefit of the respective Holders from time to time of the Notes as follows:
ARTICLE 1
DEFINITIONS AND SCOPE
Section 1.01. Scope of Second Supplemental Indenture. The changes, modifications and supplements to the Indenture effected by this Second Supplemental Indenture shall be applicable only with respect to, and shall only govern the terms of, the Notes (as defined in the First Supplemental Indenture), and shall not apply to any other Securities that may be issued under the Base Indenture unless a supplemental indenture with respect to such other Securities specifically incorporates such changes, modifications and supplements. The provisions of this Second Supplemental Indenture shall supersede any corresponding or inconsistent provisions in the Indenture with respect to the Notes.
Section 1.02. Definitions
For all purposes of this Second Supplemental Indenture, except as otherwise herein expressly provided or unless the context otherwise requires: (i) the terms and expressions used herein shall have the same meanings as corresponding terms and expressions used in the Indenture, and (ii) the words “herein,” “hereof” and “hereby” and other words of similar import used in this Second Supplemental Indenture refer to this Second Supplemental Indenture as a whole and not to any particular section hereof. In addition, for purposes of this Second Supplemental Indenture:
“Merger” means the merger of Thor Mergco Inc., a wholly owned subsidiary of Sibanye Gold Limited, with and into the Company, with the Company continuing as the surviving corporation, which transaction has been or shall be consummated pursuant to the Agreement and Plan of Merger dated as of December 9, 2016 among the Company, Sibanye Gold Limited, Thor US Holdco Inc., and Thor Mergco Inc.
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ARTICLE 2
AMENDMENT OF INDENTURE
Section 2.01. Conversion of Securities
In accordance with Section 10.07 of the First Supplemental Indenture, at and after the effective time of the Merger, the right to convert each $1,000 principal amount of Notes is hereby changed into a right to convert such principal amount of Notes into, and the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely, cash in an amount equal to the Applicable Conversion Rate (as may be increased by Additional Shares pursuant to Section 10.03 of the First Supplemental Indenture) in effect on the relevant Conversion Date, multiplied by the Merger Consideration.
ARTICLE 3
MISCELLANEOUS
Section 3.01. Severability
In case any provision of this Second Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 3.02. Modification, Amendment and Waiver
The provisions of this Second Supplemental Indenture may not be amended, supplemented, modified or waived, unless otherwise provided in the Indenture, except by the execution of a supplemental indenture in compliance with Article 8 of the First Supplemental Indenture.
Section 3.03. Ratification of Indenture; Second Supplemental Indenture Part of the Indenture
Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. In the event of a conflict between the terms and conditions of the Indenture and the terms and conditions of this Second Supplemental Indenture, then the terms and conditions of the Indenture shall prevail. This Second Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
Section 3.04. Trust Indenture Act Controls
If any provision of this Second Supplemental Indenture limits, qualifies or conflicts with any provision of the Trust Indenture Act that is required under the Trust Indenture Act to be part of and govern any provision of this Supplemental Indenture, the provisions of the Trust Indenture Act shall control.
Section 3.05. Governing Law
This Second Supplemental Indenture, and any claim, controversy or dispute arising under or related to this Second Supplemental Indenture, shall be construed in accordance with and governed by the laws of the State of New York (without regard to the conflicts of law provisions thereof other than Section 5-1401 of the General Obligations Law).
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Section 3.06. Trustee Makes No Representation
The Trustee makes no representations as to the validity or sufficiency of this Second Supplemental Indenture. The recitals and statements contained in this Second Supplemental Indenture shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same.
Section 3.07. Multiple Counterparts
The parties may sign multiple counterparts of this Second Supplemental Indenture. Each signed counterpart shall be deemed an original, but all of them together shall represent the same agreement.
Section 3.08. Headings
The headings of the Articles and Sections of this Second Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 3.10. Calculations in Respect of the Notes
The Company shall make all calculations under the Indenture, as supplemented by this Second Supplemental Indenture, and the Notes. The Company shall make all these calculations in good faith and, absent manifest error, such calculations shall be final and binding on all Holders. The Company shall provide schedules of its calculations to the Trustee as required under the First Supplemental Indenture, and the Trustee shall be entitled to conclusively rely on the accuracy of any such calculation without independent verification. The Trustee will forward the Company’s calculations to any Holder of Notes upon the request of that Holder at the sole cost and expense of the Company.
[SIGNATURE PAGE FOLLOWS]
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The parties hereto have caused this Second Supplemental Indenture to be duly executed as of the date first above written.
| STILLWATER MINING COMPANY | ||
| By: | /s/ Christopher M. Bateman | |
| Name: | Christopher M. Bateman | |
| Title: | Chief Financial Officer | |
| DELAWARE TRUST COMPANY, as Trustee | ||
| By: | /s/ Alan R. Halpern | |
| Name: | Alan R. Halpern | |
| Title: | Vice President | |
[Signature Page to Second Supplemental Indenture]
Exhibit 4.2
FIRST SUPPLEMENTAL INDENTURE
between
STILLWATER MINING COMPANY,
as Issuer,
and
DELAWARE TRUST COMPANY,
as Trustee
and
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Registrar, Conversion Agent and Paying Agent
Dated as of May 4, 2017
Supplemental to Indenture
Dated as of November March 12, 2008
1.875% Convertible Senior Notes due 2028
FIRST SUPPLEMENTAL INDENTURE dated as of May 4, 2017 between STILLWATER MINING COMPANY, a Delaware corporation, as issuer (the “Company” or the “Issuer”) and DELAWARE TRUST COMPANY, a Delaware banking corporation, as successor in interest to LAW DEBENTURE TRUST COMPANY OF NEW YORK, a New York banking corporation, as trustee (the “Trustee”) and DEUTSCHE BANK TRUST COMPANY AMERICAS, as Registrar, Conversion Agent and Paying Agent (the “Registrar, Conversion Agent and Paying Agent”), supplementing the Indenture dated as of March 12, 2008 between the Company, the Trustee and the Registrar, Conversion Agent and Paying Agent (the “Base Indenture”).
W I T N E S S E T H
WHEREAS, the Company, the Trustee and the Registrar, Conversion Agent and Paying Agent have heretofore entered into the Base Indenture, dated as of March 12, 2008, to provide for the issuance of the Company’s 1.875% Convertible Senior Notes due 2028 (the “Notes”);
WHEREAS, the Company, Sibanye Gold Limited (“Parent”), Thor US Holdco Inc. (“US Holdco”) and Thor Mergco Inc., a wholly owned subsidiary of Parent (“Merger Sub”), entered into an Agreement and Plan of Merger, dated as of December 9, 2016 (as amended, modified, supplemented or amended and restated from time to time, the “Merger Agreement”);
WHEREAS, pursuant to the Merger Agreement, Merger Sub will merge with and into the Company, with the Company continuing as the surviving corporation;
WHEREAS, as a result of the Merger, the Company will be a wholly owned subsidiary of Parent and, at the effective time of the Merger, each issued and outstanding share of the Company’s common stock, par value $0.01 per share (the “Common Stock”) then outstanding shall be converted into the right to receive $18.00 in cash without interest (the “Merger Consideration”), and holders of shares of Common Stock will be entitled to exchange their shares of Common Stock for Merger Consideration;
WHEREAS, Section 4.1 of the Base Indenture permits the Company to merge with another Person so long as certain conditions have been met;
WHEREAS, Section 6.8 of the Base Indenture provides, among other things, that in the case of any merger pursuant to which holders of the outstanding Common Stock are entitled to receive cash, securities or other property, then as a condition precedent to such merger, the Company shall execute and deliver to the Trustee a supplemental indenture providing that Holders shall have the right to convert Notes into the kind and amount of shares of stock and other securities and property (including cash) receivable upon such merger, by a holder of the number of shares of Common Stock deliverable upon conversion of such Notes immediately prior to such merger;
WHEREAS, as a result of the redemption of the Notes by the Company pursuant to Section 5.1 of the Base Indenture, Holders may convert Notes that have been called for redemption (the “Conversion Right”) at any time prior to 5:00 p.m. (New York City Time) one Business Day prior to the date specified in the notice of redemption delivered to the Holders pursuant to Section 5.3 of the Base Indenture (the “Redemption Date”);
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WHEREAS, Holders who elect to exercise the Conversion Right shall be entitled, in respect of each $1,000 principal amount of Notes, to cash in an amount equal to the Conversion Rate (as defined in the Base Indenture) in effect on the Conversion Date (as defined in the Base Indenture) multiplied by the Merger Consideration; and
WHEREAS, Section 10.1(j) provides that the Company, the Trustee and the Registrar, Conversion Agent and Paying Agent may enter into a supplemental indenture without consent of the Holders to make any change that does not adversely affect any outstanding Notes in any respect.
NOW, THEREFORE, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby mutually covenant and agree for the equal and proportionate benefit of the respective Holders from time to time of the Notes as follows:
ARTICLE 1
DEFINITIONS AND SCOPE
Section 1.01. Definitions
For all purposes of this First Supplemental Indenture, except as otherwise herein expressly provided or unless the context otherwise requires: (i) the terms and expressions used herein shall have the same meanings as corresponding terms and expressions used in the Base Indenture, and (ii) the words “herein,” “hereof” and “hereby” and other words of similar import used in this First Supplemental Indenture refer to this First Supplemental Indenture as a whole and not to any particular section hereof. In addition, for purposes of this First Supplemental Indenture:
“Merger” means the merger of Thor Mergco Inc., a wholly owned subsidiary of Sibanye Gold Limited, with and into the Company, with the Company continuing as the surviving corporation, which transaction has been or shall be consummated pursuant to the Agreement and Plan of Merger dated as of December 9, 2016 among the Company, Sibanye Gold Limited, Thor US Holdco Inc., and Thor Mergco Inc.
ARTICLE 2
AMENDMENT OF INDENTURE
Section 2.01. Conversion of Securities
In accordance with Section 6.8 of the Base Indenture, at and after the effective time of the Merger, the right to convert each $1,000 principal amount of Notes is hereby changed into a right to convert such principal amount of Notes into, and the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely, cash in an amount equal to the Conversion Rate in effect on the relevant Conversion Date, multiplied by the Merger Consideration.
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ARTICLE 3
MISCELLANEOUS
Section 3.01. Severability
In case any provision of this First Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 3.02. Modification, Amendment and Waiver
The provisions of this First Supplemental Indenture may not be amended, supplemented, modified or waived, unless otherwise provided in the Base Indenture, except by the execution of a supplemental indenture in compliance with Article 10 of the Base Indenture.
Section 3.03. Ratification of Base Indenture; First Supplemental Indenture Part of the Base Indenture
Except as expressly amended hereby, the Base Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. In the event of a conflict between the terms and conditions of the Base Indenture and the terms and conditions of this First Supplemental Indenture, then the terms and conditions of the Base Indenture shall prevail. This First Supplemental Indenture shall form a part of the Base Indenture for all purposes, and every holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
Section 3.04. Trust Indenture Act Controls
If any provision of this First Supplemental Indenture limits, qualifies or conflicts with any provision of the Trust Indenture Act that is required under the Trust Indenture Act to be part of and govern any provision of this First Supplemental Indenture, the provisions of the Trust Indenture Act shall control.
Section 3.05. Governing Law
This First Supplemental Indenture, and any claim, controversy or dispute arising under or related to this First Supplemental Indenture, shall be construed in accordance with and governed by the laws of the State of New York (without regard to the conflicts of law provisions thereof other than Section 5-1401 of the General Obligations Law).
Section 3.06. Trustee Makes No Representation
The Trustee makes no representations as to the validity or sufficiency of this First Supplemental Indenture. The recitals and statements contained in this First Supplemental Indenture shall be taken as the statements of the Company, the Trustee assumes no responsibility for the correctness of the same.
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Section 3.07. Multiple Counterparts
The parties may sign multiple counterparts of this First Supplemental Indenture. Each signed counterpart shall be deemed an original, but all of them together shall represent the same agreement.
Section 3.08. Headings
The headings of the Articles and Sections of this First Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 3.10. Calculations in Respect of the Notes
The Company shall make all calculations under the Base Indenture, as supplemented by this First Supplemental Indenture, and the Notes. The Company shall make all these calculations in good faith and, absent manifest error, such calculations shall be final and binding on all Holders. The Company shall provide schedules of its calculations to the Trustee as required under the First Supplemental Indenture, and the Trustee and Conversion Agent shall be entitled to conclusively rely on the accuracy of any such calculation without independent verification. The Trustee will forward the Company’s calculations to any Holder of Notes upon the request of that Holder at the sole cost and expense of the Company.
[SIGNATURE PAGE FOLLOWS]
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The parties hereto have caused this First Supplemental Indenture to be duly executed as of the date first above written.
| STILLWATER MINING COMPANY, as Issuer | ||
| By: | /s/ Christopher M. Bateman | |
| Name: | Christopher M. Bateman | |
| Title: | Chief Financial Officer | |
| DELAWARE TRUST COMPANY, as Trustee | ||
| By: | /s/ Alan R. Halpern | |
| Name: | Alan R. Halpern | |
| Title: | Vice President | |
| DEUTSCHE BANK TRUST COMPANY AMERICAS, as Registrar, Conversion Agent and Paying Agent | ||
| By: | /s/ Carol Ng | |
| Name: | Carol Ng | |
| Title: | Vice President | |
| By: | /s/ Julia Engel | |
| Name: | Julia Engel | |
| Title: | Vice President | |
[Signature Page to First Supplemental Indenture]