As filed with the Securities and Exchange Commission on January 20, 1999.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------------
STILLWATER MINING COMPANY
(Exact name of registrant as specified in its charter)
------------------------------
DELAWARE 81-0480654
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1200 17TH STREET
SUITE 900
DENVER, COLORADO 80202
(303) 352-2060
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
GENERAL EMPLOYEE STOCK OPTION PLAN
1998 EQUITY INCENTIVE PLAN
STILLWATER MINING COMPANY 401(K) PLAN AND TRUST
STILLWATER MINING COMPANY BARGAINING UNIT 401(K) PLAN AND TRUST
(Full titles of the plans)
------------------------------
WILLIAM E. NETTLES, CHAIRMAN AND With copies to:
CHIEF EXECUTIVE OFFICER PAUL HILTON, ESQ.
STILLWATER MINING COMPANY DAVIS, GRAHAM & STUBBS LLP
1200 17TH STREET, SUITE 900 370 17TH STREET, SUITE 4700
DENVER, COLORADO 80202 DENVER, COLORADO 80202
(303) 352-2060 (303) 892-9400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed maximum Proposed
Amount to be offering price maximum aggregate Amount of
Title of securities to be registered registered per unit(1) offering price(1) registration fee
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 3,300,000 shares $27.172 $89,667,600 $24,927.60
Interests in the Stillwater Mining Company (2) (3) (3) (3)
401(k) Plan and Trust
Interests in the Stillwater Mining Company (2) (3) (3) (3)
Bargaining Unit 401(k) Plan and Trust
</TABLE>
(1)Estimated solely for the purpose of determining the amount of the
registration fee pursuant to Rule 457(h), and is based upon the average of
the high and low prices of the Company's Common Stock on January 19, 1999 as
quoted on the American Stock Exchange.
(2)Pursuant to Rule 416(c) under the Securities Act of 1933, this Registration
Statement also covers an indeterminate number of plan interests to be offered
or sold pursuant to the Stillwater Mining Company 401(k) Plan and Trust and
Stillwater Mining Company Bargaining Unit 401(k) Plan and Trust.
(3)Pursuant to Rule 457(h)(2) under the Securities Act of 1933, no separate fee
is required to register plan interests.
<PAGE>
EXPLANATORY NOTE
This Registration Statement relates to (i) 1,500,000 shares of Stillwater
Mining Company (the "Company") common stock, par value $.01 per share ("Common
Stock") issuable under the Company's 1998 Equity Incentive Plan (the "Plan"),
which is the amended and restated form of the Company's 1994 Stock Plan
(1,500,000 shares of Common Stock have been previously registered for issuance
under the Plan by the Company's Registration Statement on Form S-8 (No.
33-97358)); (ii) 300,000 shares of Common Stock issuable under the Company's
General Employee Stock Option Plan; (iii) 750,000 shares of Common Stock which
may be acquired by Company employees pursuant to elective purchases under the
Stillwater Mining Company 401(k) Plan and Trust; and (iv) 750,000 shares of
Common Stock which may be acquired by Company employees pursuant to elective
purchases under the Stillwater Mining Company Bargaining Unit 401(k) Plan and
Trust.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Company and the Stillwater Mining Company Profit Sharing/401(k) Plan
(the "Plan") hereby state that the following documents filed with the Securities
and Exchange Commission (the "Commission") are hereby incorporated in this
Registration Statement by reference as of their date of filing with the
Commission:
(a) The Company's Annual Report on Form 10-K for the year ended December
31, 1997, filed with the Commission on March 31, 1998, as amended by
the Company's Annual Report on Form 10-K/A filed with the Commission
on April 14, 1998;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998, filed with the Commission on April 29, 1998;
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1998, filed with the Commission on July 20, 1998;
(d) The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998, filed with the Commission on October 13, 1998,
as amended by the Company's Quarterly Report on Form 10-Q/A, filed
with the Commission on November 25, 1998;
(e) The Company's Current Report on Form 8-K dated April 8, 1998 and
filed with the Commission on April 22, 1998;
(f) The Company's Current Report on Form 8-K dated July 21, 1998 and
filed with the Commission on September 29, 1998;
(g) The Company's Current Report on Form 8-K dated October 1, 1998 and
filed with the Commission on October 1, 1998;
(h) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-1 (No. 33-74774), filed
with the Commission on February 2, 1994 (as amended); and
(i) All documents filed by the Company or the Plan with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 subsequent to the date of this Registration
Statement and prior to the filing of a Post-Effective Amendment to
this Registration Statement indicating that all
II-1
<PAGE>
securities offered under the Registration Statement have been sold,
or deregistering all securities then remaining unsold.
Any statement contained in a document incorporated by, or deemed to be
incorporated by reference herein, shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
4. DESCRIPTION OF SECURITIES.
Not applicable.
5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Amended and Restated Certificate of Incorporation and Bylaws
provide that the Company will indemnify, to the fullest extent permitted by
applicable law as from time to time may be in effect, any person against all
liability and expense (including attorneys' fees and settlement costs) incurred
by reason of the fact that he is or was a director or officer of the Company, or
while serving as a director or officer of the Company, he is or was serving at
the request of the Company as a director, officer, partner or trustee of, or in
any similar managerial or fiduciary position of, or as an employee or agent of,
another corporation, partnership, joint venture, trust, association, or other
entity, or by reason of any action alleged to have been taken or omitted in such
capacity. Expenses (including attorneys' fees) incurred in defending an action,
suit or proceeding will be paid by the Company in advance of the final
disposition of such action, suit, or proceeding to the full extent and under the
circumstances permitted by the laws of the State of Delaware. The Company may
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee, fiduciary, or agent of the Company against any
liability asserted against and incurred by such person in any such capacity or
arising out of such person's position, whether or not the Company would have the
power to indemnify against such liability under the provisions of the Amended
and Restated Certificate of Incorporation. With respect to a determination of
entitlement to indemnification, the indemnitee is presumed to be entitled to
indemnification and the Company has the burden of proof to overcome that
presumption.
The indemnification provided by the Amended and Restated Certificate of
Incorporation is not deemed to be exclusive of any other rights to which those
indemnified may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors, statute, or otherwise, and inures to the benefit of
their heirs, executors, and administrators. The provisions of the Amended and
Restated Certificate of Incorporation do not preclude the Company from
indemnifying other persons
II-2
<PAGE>
from similar or other expenses and liabilities as the Board of Directors or the
stockholders may determine in a specific instance or by resolution of general
application. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, the Company has
been informed that, in the opinion of the Commission, such indemnification is
against public policy as expressed in the Securities Act of 1933 and is
therefore unenforceable.
The foregoing description of certain provisions of the Company's Amended
and Restated Certificate of Incorporation and Bylaws is qualified in its
entirety by the actual Amended and Restated Certificate of Incorporation and
Bylaws of the Company filed as exhibits to the Registration Statement on Form
S-1 (No. 33-74774).
7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
8. EXHIBITS
(a) Exhibits.
4.1 Amended and Restated Certificate of Incorporation./1/
4.2 Amended and Restated Bylaws./1/
4.3 Form of Indenture, dated April 29, 1996, between the Company
and Colorado National Bank with respect to the Company's 7%
Convertible Subordinated Notes Due 2003./2/
4.4 Rights Agreement, dated October 26, 1995./3/
5.1 Opinion and consent of Davis, Graham & Stubbs LLP.
23.1 Consent of Davis, Graham & Stubbs LLP. See Exhibit 5.1.
- --------------------
1 Filed as an exhibit to the Company's Registration Statement on Form S-1
(Registration No. 33-85904), as declared effective on December 15, 1994, and
incorporated herein by reference.
2 Filed as an exhibit to the Company's Form 8-K dated April 29, 1996, filed with
the Commission on April 30, 1996 and incorporated herein by reference.
3 Filed as an exhibit to the Company's Form 8-A, filed with the Commission on
October 30, 1995 and incorporated herein by reference.
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<PAGE>
23.2 Consent of PricewaterhouseCoopers LLP.
(b) Plan Qualification.
The Company has submitted and will submit the Plan and any amendment
thereto to the Internal Revenue Service ("IRS") in a timely manner and has made
or will make all changes required by the IRS in order to qualify the Plan.
9. UNDERTAKINGS
A. The undersigned Registrant hereby undertakes: (1) to file, during any
period in which offers or sales are being made, a post-effective amendment to
this Registration Statement to include any material information with respect to
the plan of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration Statement; (2)
that, for the purpose of determining any liability under the Securities Act of
1933 (the "Act"), each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and (3) to remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Registrant's annual
report and the Plan's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Denver, State of Colorado, on January 13, 1999.
Stillwater Mining Company
By:/s/William E. Nettles
----------------------------------
William E. Nettles
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints jointly and severally William E. Nettles and
James A. Sabala, or either of them, with full power to act alone, his true and
lawful attorneys-in-fact, with full power of substitution, and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement on Form S-8, and file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact full power and authority to do and perform
each and every act and thing requisite and necessary to be done as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact or either of them may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
/s/William E. Nettles
- --------------------------- Chairman of the Board, January 13, 1999
William E. Nettles Executive Officer and
Director (principal
executive officer)
/s/James A. Sabala
- --------------------------- Vice President and Chief January 13, 1999
James A. Sabala Financial Officer
(principal financial and
accounting officer)
II-5
<PAGE>
/s/Richard E. Gilbert
- --------------------------- Director January 12, 1999
Richard E. Gilbert
/s/Douglas D. Donald
- --------------------------- Director January 12, 1999
Douglas D. Donald
/s/Lawrence M. Glaser
- --------------------------- Director January 17, 1999
Lawrence M. Glaser
/s/Ted Schwinden
- --------------------------- Director January 12, 1999
Ted Schwinden
/s/Peter Steen
- --------------------------- Director January 12, 1999
Peter Steen
/s/Apolinar Guzman, Jr.
- --------------------------- Director January 14, 1999
Apolinar Guzman, Jr.
/s/John E. Andrews
- --------------------------- Director January 17, 1999
John E. Andrews
II-6
<PAGE>
PLAN SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, the Stillwater
Mining Company 401(k) Plan and Trust trustee or other persons who administer the
Plan have duly caused this Registration Statement to be signed on behalf of the
Plan by the undersigned, thereunto duly authorized, in the City of Denver, State
of Colorado, on the 19th day of January, 1999.
STILLWATER MINING COMPANY
401(K) PLAN AND TRUST
By: /s/Jeff Toshihara
----------------------------------------
Name: Jeff Toshihara
--------------------------------------
Title: Benefits Administrator
-------------------------------------
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<PAGE>
PLAN SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, the Stillwater
Mining Company Bargaining Unit 401(k) Plan and Trust trustee or other persons
who administer the Plan have duly caused this Registration Statement to be
signed on behalf of the Plan by the undersigned, thereunto duly authorized, in
the City of Denver, State of Colorado, on the 19th day of January, 1999.
STILLWATER MINING COMPANY
BARGAINING UNIT 401(K) PLAN AND TRUST
By: /s/Jeff Toshihara
----------------------------------------
Name: Jeff Toshihara
--------------------------------------
Title: Benefits Administrator
-------------------------------------
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<PAGE>
EXHIBIT INDEX
Exhibit Sequential
No. Description Page No.
- ------- ----------- ----------
4.1 Amended and Restated Certificate of Incorporation./1/
4.2 Amended and Restated Bylaws./1/
4.3 Form of Indenture, dated April 29, 1996, between the Company and
Colorado National Bank with respect to the Company's 7% Convertible
Subordinated Notes Due 2003./2/
4.4 Rights Agreement, dated October 26, 1995./3/
5.1 Opinion and consent of Davis, Graham & Stubbs LLP.
23.1 Consent of Davis, Graham & Stubbs LLP. See Exhibit 5.1.
23.2 Consent of PricewaterhouseCoopers LLP.
- -----------------
1 Filed as an exhibit to the Company's Registration Statement on Form S-1
(Registration No. 33-85904), as declared effective on December 15, 1994, and
incorporated herein by reference.
2 Filed as an exhibit to the Company's Form 8-K dated April 29, 1996, filed with
the Commission on April 30, 1996 and incorporated herein by reference.
3 Filed as an exhibit to the Company's Form 8-A, filed with the Commission on
October 30, 1995 and incorporated herein by reference.
II-9
January 18, 1999
Stillwater Mining Company
1200 17th Street, Suite 900
Denver, Colorado 80202
RE: REGISTRATION ON FORM S-8 OF 1,500,000 SHARES OF COMMON STOCK TO
BE ISSUED PURSUANT TO THE STILLWATER MINING COMPANY 1998 EQUITY
INCENTIVE PLAN AND 300,000 SHARES OF COMMON STOCK TO BE ISSUED
PURSUANT TO THE GENERAL EMPLOYEE STOCK OPTION PLAN.
Ladies and Gentlemen:
We have acted as counsel to Stillwater Mining Company, a Delaware
corporation (the "Company"), in connection with the registration by the Company
of 3,300,000 shares of Common Stock, $.01 par value (the "Shares"), described in
the Registration Statement on Form S-8 of the Company being filed with the
Securities and Exchange Commission concurrently herewith. Of the 3,300,000
Shares to be registered, 1,500,000 of the Shares (the "Equity Plan Shares") will
be issued pursuant to the Company's 1998 Equity Incentive Plan (the "Equity
Incentive Plan") and 300,000 of the Shares (the "Option Plan Shares") will be
issued pursuant to the Company's General Employee Stock Option Plan (the "Option
Plan"). In such connection, we have examined certain corporate records and
proceedings of the Company, including actions taken by the Company in respect of
the authorization and issuance of the Shares, and such other matters as we
deemed appropriate.
Based on the foregoing, we are of the opinion that the Equity Plan Shares
and Option Plan Shares have been duly authorized and, when sold as contemplated
by the Equity Incentive Plan and the Option Plan, as applicable, and the
Registration Statement, will be validly issued, fully paid and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
above-mentioned Registration Statement.
Sincerely,
/s/Davis, Graham & Stubbs LLP
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 28, 1998, which appears
on page 31 of Stillwater Mining Company's Annual Report on Form 10-K for
the year ended December 31, 1997.
/s/PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Denver, Colorado
January 20, 1999
