exv10w4



 








Exhibit 10.4




PALLADIUM AND RHODIUM SALES AGREEMENT




     This PALLADIUM AND RHODIUM SALES AGREEMENT (this “Agreement”) is made and entered into this
8th day of August, 2007, by and between STILLWATER MINING COMPANY, a Delaware
corporation, whose address is 1321 Discovery Drive, Billings, Montana 59102 (“SMC”), and GENERAL
MOTORS CORPORATION, a Delaware corporation, with a place of business at 777 Joslyn Ave., Pontiac,
Michigan 48340-2925 (“GM”).



RECITAL




     GM and SMC are interested in entering into an arrangement by this Agreement whereby SMC will
supply GM certain agreed upon amounts of palladium sponge of .9995 minimum purity and rhodium
sponge of .9990 minimum purity.



AGREEMENT




     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, SMC hereby agrees to sell and deliver and GM hereby agrees to purchase
palladium and rhodium of the quantity and quality hereinafter set forth, upon the following terms
and conditions:



     Section 1. Definitions and Terminology. Unless the context indicates otherwise,
capitalized terms have the meaning set forth in this Section 1.



          Actual Mined Metal means Palladium mined from SMC’s East Boulder Mine and/or Stillwater Mine.




          Actual Monthly Production means the actual amount of mined metal out-turned by SMC or on
behalf of SMC by a third party refinery during any one calendar month.




          Business Day means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in the United States are authorized or obligated by law or executive
order to close.




          Contract Year shall mean the twelve consecutive calendar months commencing with January of
each calendar year.




          Delivery Point means GM’s pool account at Heraeus Metals Processing, USA and/or Johnson
Matthey, USA, as designated by GM on or before the last Business Day of the Pricing Month. If GM
fails to designate which location, delivery will be made to the same Delivery Point(s) as the
previous delivery.




          Old Agreement means the Palladium and Platinum Sales Agreement dated as of August 17, 1998, as
amended by the First Amendment Agreement to Palladium and Platinum




 




*   Confidential treatment has been requested with respect to certain portions of this exhibit. Such portions are marked with a “***” in place of the redacted language. Omitted portions are filed separately with the Securities and Exchange Commission.





 









 







Sales Agreement dated as of
November 20, 2000, and by the Second Amendment Agreement to Palladium and Platinum Sales Agreement
dated as of February 20, 2001, and the Third Amendment to Palladium and Platinum Sales Agreement
dated as of August 8, 2007, and as the same may be amended from time to time.




          Delivery Start Date means *** for Rhodium deliveries and the month following the date of the
last delivery of Palladium pursuant to the Old Agreement.




          JM Reference Price Average means the monthly average of the daily Johnson Matthey North
America reference price for Rhodium, as published by Johnson Matthey Inc. Precious Metals
Marketing, USA, at approximately 9:30 am Eastern Time.




          London PM Fix Average means the monthly average of the daily London Platinum & Palladium
Market (LPPM) PM Fix for Palladium, as published on LPPM website www.lppm.org.uk.




          Metal means the palladium and/or rhodium to be sold under this Agreement.




          Ounce is a troy ounce equivalent to 31.1035 grams.




          Palladium means refined palladium in sponge form with .9995 minimum purity.




          Palladium Option shall have the meaning set forth in Section 4(a).




          Pricing Month means the month during which pricing is determined pursuant to Section 5 of this
Agreement, and (i) with respect to Palladium, is the month prior to the month of delivery (e.g. ***
for delivery in ***), and (ii) with respect to Rhodium, is the month that is three months prior to
the month of delivery (e.g. *** for delivery in ***).




          Rhodium means refined rhodium in sponge form with .9990 minimum purity.




          Rhodium Option shall have the meaning set forth in Section 4(b).




     Section 2. Term. This Agreement shall have an initial term from *** through and
including ***. This Agreement is subject to earlier termination pursuant to Section 9 and extension
pursuant to Section 15.



     Section 3. Delivery. Beginning on the Delivery Start Date, SMC will sell and deliver
Metal FOB Delivery Point, and GM will purchase the quantities of Metal set forth in Section 4,
which shall be delivered no later than the *** day of the month following the Pricing Month. All
Metal to be sold in any one calendar month shall be delivered to a single Delivery Point.



     Section 4. Quantity and Source.



 




*   Confidential treatment has been requested with respect to certain portions of this exhibit. Such portions are marked with a “***” in place of the redacted language. Omitted portions are filed separately with the Securities and Exchange Commission.





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          (a) Palladium. ***.




          (b) Rhodium. ***.




     Section 5. Pricing. ***.



          (a) Palladium. ***.




          (b) Rhodium. ***.




     Section 6. Payment Terms. On the first Business Day following each Pricing Month
(i.e., the first Business Day of the month of delivery), SMC will inform GM in writing via
facsimile as to the formula-based pricing computations set forth in Section 5 above for the actual
quantities of Metal to be delivered by SMC pursuant to this Agreement during the following month.
GM will forward such payment amount for 100% of the actual quantities by wire transfer to SMC
(pursuant to written wire transfer instructions which will be provided by SMC) by the third
Business Day following the confirmation of receipt. All payments will be made in U.S. Dollars. If
GM does not agree with SMC’s pricing computations, GM shall timely notify SMC of the disagreement
and the parties shall seek resolution of such dispute as to the calculation of the payment amount
prior to the date payment is due.



     Section 7. Suspension of Delivery for Failure to Pay. Ten business days after receipt
by GM of written notice from SMC to GM of GM’s failure to pay pursuant to the terms of Sections 6
and 7 (Why the reference to section 7) above, SMC may suspend delivery of Metal to GM until such
time as payment has been received by SMC. This right shall not be deemed to be an exclusive right
or remedy.



     Section 8. Risk of Loss; Title. Title and risk of loss for all Metal delivered
hereunder shall pass to GM upon delivery to the Delivery Point.



     Section 9. Warranty. SMC warrants that the Palladium supplied hereunder shall have a
minimum purity of .9995; that the Rhodium supplied hereunder shall have a minimum purity of .9990;
and that SMC will convey good title to the Metal, free and clear of all liens and encumbrances
payable by SMC. In respect of Metal supplied by release from SMC’s pool account to GM’s pool
account, the parties agree that such Metal shall be deemed to have a minimum purity of .9995 for
Palladium and .9990 for Rhodium.



          OTHER THAN THOSE EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE NO REPRESENTATIONS, GUARANTEES
OR WARRANTIES, EXPRESSED OR IMPLIED, OF ANY KIND. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
SMC EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS, OR SUITABILITY FOR A PARTICULAR
PURPOSE OR




 




*   Confidential treatment has been requested with respect to certain portions of this exhibit. Such portions are marked with a “***” in place of the redacted language. Omitted portions are filed separately with the Securities and Exchange Commission.




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USE NOTWITHSTANDING ANY COURSE OF PERFORMANCE, USAGE OF TRADE OR LACK THEREOF
INCONSISTENT WITH THIS SECTION.




          SMC’S SOLE LIABILITY FOR BREACH OF WARRANTY SHALL BE LIMITED TO REPLACEMENT OF THE
NONCONFORMING METAL.




     Section 10. Default and Termination. Either party shall be entitled to terminate this
Agreement in the event of (i) the other party generally not paying its debts as such debts become
due, or admitting in writing its inability to pay its debts generally or making a general
assignment for the benefit of creditors, the appointment of a receiver for the other party or any
of its assets, the filing by the other party of a voluntary petition in bankruptcy or any form of
reorganization, or the filing of an involuntary petition in bankruptcy against the other party
which is not dismissed with prejudice within 60 days of such filing, or the making of an assignment
for the benefit of creditors of the other party; or (ii) a breach by the other party of any of the
material terms or conditions of this Agreement, which breach is not cured within 10 business days
of notice of such breach by the non-breaching party. SMC shall be entitled to terminate this
Agreement in the event GM does any of the following: (i) acquire, or agree, offer or propose to
acquire, directly or indirectly, from SMC or any other person, any business or assets of, or
securities issued by, SMC or any right, warrant or option to acquire any of the foregoing; (ii)
propose to enter into, directly or indirectly, any merger or business combination involving SMC or
any of its subsidiaries or to purchase, directly or indirectly, a material portion of the assets of
SMC or any of its subsidiaries; (iii) make any proposal or request to SMC or any of its officers or
directors relating, directly or indirectly, to any action referred to in clause (i) or (ii) of this
paragraph or to any modification or waiver of any provision of this paragraph; (iv) make or
participate in, directly or indirectly, any “solicitation” of “proxies” (as those terms are used in
the proxy piles of the Securities and Exchange Commission) to vote or seek to advise or influence
any person with respect to the voting of any voting securities of SMC or any of its subsidiaries;
(v) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) under
the Exchange Act) with respect to any voting securities of SMC or any of its subsidiaries; (vi) act
alone or in concert with others to seek to control or influence the management, Board of Directors
or policies of SMC; (vii) advise, assist or enter into any discussions, negotiations, arrangements
or understandings with any other person with respect to any of the foregoing; or (viii) make any
public statement or disclosure of any kind with respect to any matter addressed by this paragraph
(unless required by law) or take any other action which might reasonably be expected to result in
any such public disclosure. Otherwise, unless this Agreement is extended pursuant to Section 14,
this Agreement will terminate on *** (except that
the provisions of Sections 6, 9, 12, 13, 16 and 19 of this Agreement will survive such
termination).



     Section 11. Taxes and Assessments. GM shall be responsible for the payment of all
sales, use, excise, transfer, value added and other similar taxes imposed by an governmental



 




*   Confidential treatment has been requested with respect to certain portions of this exhibit. Such portions are marked with a “***” in place of the redacted language. Omitted portions are filed separately with the Securities and Exchange Commission.




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authority in any jurisdiction in connection with the transactions contemplated herein. If any
personal property taxes are assessed against the Metal by any governmental authority, such
assessment shall be the responsibility of and shall be paid by the party having title to the Metal
at the time of assessment.




     Section 12. Claims. Claims as to shortage in quantity shall be made by written notice
from GM to SMC within five Business Days after the delivery in question, or else any such claims
shall be deemed to have been waived. Except as otherwise provided in Section 9 or this Section 12,
all other claims shall be made by written notice from GM to SMC within one year of delivery of the
Metal in question, or else any such claims shall be deemed to have been waived. EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED IN THIS AGREEMENT, NO CLAIMS WHATSOEVER SHALL BE MADE HEREUNDER FOR SPECIAL,
INDIRECT OR CONSEQUENTIAL DAMAGES.



     Section 13. Limitation of Liability. GM shall not be liable for any special, indirect
or consequential damages. SMC shall not be liable for any prospective or speculative profits or
special, indirect, consequential, punitive or exemplary damages and the liability of SMC with
respect to this Agreement or any action in connection herewith whether in contract, tort, or
otherwise shall not exceed the price of that portion of the Metal on which liability is asserted.



     Section 14. Compliance with Laws. To the extent applicable, the parties agree to
comply with all laws, ordinances rules, codes, regulations and lawful orders of any federal, state
or local governmental authority applicable to performance of the Agreement. Stillwater represents
that neither it nor any of its subcontractors will utilize child, slave, prisoner or any other form
of forced or involuntary labor in the supply of Metals under this Agreement, or engage in abusive
employment or corrupt business practices. At GM’s request Stillwater will certify in writing its
compliance with the foregoing.



     Section 15. Force Majeure.



          (a) Effect of Occurrence. In the event that either party is rendered unable, wholly
or in part, by force majeure applying to it, to carry out its obligations under this Agreement, it
is agreed that such obligations of such party, so far as they are affected by such force majeure,
shall be suspended during the continuance of any inability so caused, but for no longer period. The
parties agree that the various periods and terms provided for herein shall be extended for a period
equivalent to such period of force majeure. The party claiming that an event of force majeure has
occurred will promptly notify the other party of the commencement and termination of any event of
force majeure. Prompt notice of force majeure shall be given by
the party invoking it to the other party, setting out the nature and full details thereof, the
extent of the interruption and the anticipated duration of the interruption.




 




*   Confidential treatment has been requested with respect to certain portions of this exhibit. Such portions are marked with a “***” in place of the redacted language. Omitted portions are filed separately with the Securities and Exchange Commission.





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          (b) Definition. The term “force majeure” as employed herein, shall mean causes beyond
the reasonable control of the parties, including, but not limited to, acts of God, explosions,
fires, floods, breakdowns or damage to SMC’s mine(s) or related equipment or facilities, failure of
plant or equipment to operate according to plans or specifications, war or warlike hostilities,
riots, strikes, labor disputes, lockouts, unavoidable accidents, uncontrollable delays in
transportation, non-availability of any means of transportation, any state or federal laws,
regulations or requirements (expressly including inability to obtain or amend necessary
governmental approvals, licenses or permits on reasonably acceptable terms), geological, technical,
metallurgical, mining, construction or processing problems, non-availability of supplies, court
orders, acts of military authority, acts or failures to act of federal, state or local agencies or
regulatory bodies and inability to obtain timely refining of appropriate quantity of materials
necessary to produce the required amounts of Metal; provided, however, that performance shall be
resumed within a reasonable period of time after such cause has been removed; and provided further
that neither party shall be required against its will to adjust any labor dispute or to question
the validity of or to refrain from judicially testing the validity of any federal, state or local
order, regulation or statute or to refrain from pursuing its legal or equitable remedies against
any third party. Notwithstanding the foregoing, the parties agree that this Section 15 is not
intended to provide relief from economic conditions such as, but not limited to, market situations
that provide lower or higher prices than in effect under this Agreement.




     Section 16. Dispute Resolution. Except as otherwise provided in this Agreement, the
parties hereby agree that any dispute, controversy or claim arising under this Agreement, or the
breach thereof (a “Dispute”), shall first be subject to the informal dispute resolution procedures
set forth in this Section 16. The party asserting the existence of a Dispute as to the
interpretation of any provision of this Agreement or the performance by the other party of any of
its obligations hereunder shall notify the other party in writing of the nature of the asserted
Dispute. Within 10 Business Days of receipt of such notice, representatives from each party shall
arrange and have a personal or telephone conference in which they attempt to resolve such Dispute.
If those individuals are unable to resolve the Dispute within such time frame, the Dispute shall be
settled by arbitration administered in the State of New York under the rules of the American
Arbitration Association then in effect for the resolution of commercial disputes by an
arbitrator(s) selected by mutual agreement of the parties, or by the American Arbitration
Association absent such mutual agreement, and judgment on the award rendered by the arbitrator(s)
may be entered in any court having jurisdiction thereof. Any findings of such arbitration shall be
final and binding on the parties, and all reasonable costs (including attorneys’ fees) incurred as
a result of a Dispute being referred to arbitration will be borne by the party against whom any
award is made.



     Section 17. Representations and Warranties. Each of the parties represents and
warrants as follows:



 




*   Confidential treatment has been requested with respect to certain portions of this exhibit. Such portions are marked with a “***” in place of the redacted language. Omitted portions are filed separately with the Securities and Exchange Commission.





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          (a) Good Standing. That it is a corporation duly incorporated and in good standing in
its state of incorporation and that it is qualified to do business and is in good standing in those
states where necessary in order to carry out the purposes of this Agreement;




          (b) Performance. That it has the corporate capacity to enter into and perform this
Agreement and all transactions contemplated herein and that all corporate and other actions
required to authorize it to enter into and perform this Agreement have been properly taken;




          (c) No Breach. That it will not breach any other agreement or arrangement by entering
into or performing this Agreement; and




          (d) Due Execution and Delivery. That this Agreement has been duly executed and
delivered by it and is valid and binding upon it and enforceable against it in accordance with its
terms; provided, however, that no representation or warranty is made as to the remedy of specific
performance or other equitable remedies for the enforcement of this Agreement or any other
agreement contemplated hereby, and provided further that this representation is limited by
applicable bankruptcy, insolvency, moratorium, and other similar laws affecting generally the
rights and remedies of creditors and secured parties.




     Section 18. Notices. Any notice, election, report or other correspondence
(collectively, “Notices”) required or permitted hereunder shall be in writing and (i) delivered
personally to an officer of the party to whom directed; (ii) sent by registered or certified United
States mail, postage prepaid, return receipt requested; (iii) sent by reputable overnight courier;
or (iv) sent by facsimile transmission with confirmation of receipt. All such Notices shall be
addressed to the party to whom directed as follows:


SMC:



Stillwater Mining Company

1321 Discovery Drive

Billings, Montana 59102

Attn: Metals Marketing

Facsimile: (406) 373-8723

with a copy to: General Counsel

Facsimile: (406) 373-8723




 




*   Confidential treatment has been requested with respect to certain portions of this exhibit. Such portions are marked with a “***” in place of the redacted language. Omitted portions are filed separately with the Securities and Exchange Commission.





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GM:



General Motors Corporation

777 Joslyn Avenue

Mail Code 483-720-350

Pontiac, Michigan 48340-2925

Attn: PGM GM Global Commodity Manager

Facsimile: (248) 857-0068

with a copy to: Director, Nonferrous Metals

Facsimile: (248) 857-0064



Either party may, from time to time, change its address for future Notices hereunder by Notice in
accordance with this Section 18. All Notices shall be complete and deemed to have been given or
made when mailed or sent by overnight courier, or upon personal delivery when delivered personally
or when receipt is confirmed when sent by facsimile transmission.




     Section 19. Publicity. Neither SMC nor GM will issue or approve an advertisement,
promotional material, news release or other form of publicity concerning this Agreement or the
transactions contemplated herein without the prior approval of the other party as to the contents
of such advertisement, promotional material, news release or publicity and the timing of its
release, which approval cannot be unreasonably withheld.



     Section 20. Entire Agreement. This Agreement represents the complete agreement
between the parties hereto and supersedes all prior or contemporaneous oral or written agreements
of the parties to the extent they relate in any way to the subject matter hereof.



     Section 21. Relationship of the Parties. Nothing contained in this Agreement shall be
deemed to constitute either party the partner of the other, nor, except as otherwise herein
expressly provided, to constitute either party the agent or legal representative of the other, nor
to create any fiduciary relationship between them. It is not the intention of the parties to
create, nor shall this Agreement be construed to create, any mining, commercial or other
partnership. Neither party shall have any authority to act for or to assume any obligation or
responsibility on behalf of the other party, except as otherwise expressly provided herein. The
rights, duties, obligations and liabilities of the parties shall be several and not joint or
collective. Each party shall be responsible only for its obligations as herein set out and shall be
liable only for its share of the costs and expenses as provided herein. Each party shall indemnify,
defend and hold harmless the other party, its directors, officers, employees, agents and attorneys
from and against any and all losses, claims, damages and liabilities arising out of any act or any
assumption of liability by the indemnifying party, or any of its directors, officers, employees,
agents and attorneys done or undertaken, or apparently done or undertaken, on behalf of the other
party, except pursuant to the authority expressly granted herein or as otherwise agreed in writing
between the parties.



 




*   Confidential treatment has been requested with respect to certain portions of this exhibit. Such portions are marked with a “***” in place of the redacted language. Omitted portions are filed separately with the Securities and Exchange Commission.




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     Section 22. No Implied Covenants. There are no implied covenants contained in this
Agreement other than those of good faith and fair dealing.



     Section 23. Binding Effect; No Assignment. This Agreement shall bind and inure to the
benefit of and be enforceable by the parties hereto and may not be assigned by either party without
the consent of the other party, which consent shall not be unreasonably withheld, except with
respect to (i) any assignment to provide security in connection with any financing, expressly
including, by way of example and not limitation, assignments of royalty, overriding royalties or
net profits interests or production payments, or (b) any merger, consolidation or other
reorganization or transfer by operation of law, or by purchase of the business of or substantially
all of the assets of one of the parties, with respect to which such consent by the nonassigning
party will not be required.



     Section 24. Amendment and Waiver. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall be effective against
either party unless such modification, amendment or waiver is approved in writing by the parties
hereto. The failure by either party to demand strict performance and compliance with any part of
this Agreement during the term of this Agreement shall not be deemed to be a waiver of the rights
of such party under this Agreement or by operation of law. Any waiver by either party of a breach
of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent
breach thereof.



     Section 25. Severability. Whenever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under
any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability
shall not affect the validity, legality or enforceability of any other provision of this Agreement
in such jurisdiction or affect the validity, legality or enforceability of any provision in any
other jurisdiction, but this Agreement shall be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision had never been contained
herein.



     Section 26. Governing Law. The parties hereby agree that this Agreement shall be
construed in accordance with the laws of the State of New York, without giving effect to any choice
of law or conflict of law provision or rule (whether of the State of New York or any other
jurisdiction) that would cause the application of the laws of any jurisdiction other than the State
of New York.



     Section 27. Construction. This Agreement has been fully negotiated between the
parties. In interpreting this Agreement, there shall be no presumption that either party drafted
the language but rather the parties shall be deemed to have shared equally in the drafting of the
provisions of this Agreement.



 




*   Confidential treatment has been requested with respect to certain portions of this exhibit. Such portions are marked with a “***” in place of the redacted language. Omitted portions are filed separately with the Securities and Exchange Commission.





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     Section 28. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which together shall constitute one instrument.



     Section 29. Attorneys’ Fees. In the event of any controversy, claim, or dispute
between the parties hereto, arising out of or relating to this Agreement or the breach thereof, the
prevailing party shall be entitled to recover from the losing party reasonable expenses, attorneys’
fees, and costs.



     Section 30. Further Documents. At the request of either party, the parties shall
execute and deliver any further instruments, agreements, documents or other papers reasonably
requested by that party to effect the purposes of this Agreement and the transactions contemplated
hereby.



[SIGNATURE PAGE FOLLOWS.]




 




*   Confidential treatment has been requested with respect to certain portions of this exhibit. Such portions are marked with a “***” in place of the redacted language. Omitted portions are filed separately with the Securities and Exchange Commission.





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     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.



	 	 	 	 	 	 	 	 	 
	STILLWATER MINING COMPANY	 	GENERAL MOTORS CORPORATION	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Francis R. McAllister
 

	 	By:
	 	/s/ Enrique J. Driessen
 

	 	 
	Name:

	 	Francis R. McAllister
	 	Name:
	 	Enrique J. Driessen	 	 
	Title:

	 	Chairman and CEO
	 	Title:
	 	Dir. Nonferrous
Metals	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ John R. Stark              
	 	By:	 	 	 	 
	 

	 	 
	 	 	 	 	 	 
	Name:

	 	John R. Stark
	 	Name:	 	 	 	 
	Title:

	 	Vice-President
	 	Title:	 	 	 	 






 




*   Confidential treatment has been requested with respect to certain portions of this exhibit. Such
portions are marked with a “***” in place of the redacted language. Omitted portions are filed
separately with the Securities and Exchange Commission.





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