Exhibit 10.1
STOCKHOLDERS AGREEMENT
by and among
STILLWATER MINING COMPANY,
NORIMET LIMITED,
and
MMC NORILSK NICKEL
dated as of June 23, 2003
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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
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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.
<page>
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
<page>
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
<page>
Schedule 2.4(c)
Committee assignments are expected to be confirmed at the first meeting of the
Board of Directors after the Closing.