FIRST AMENDMENT AGREEMENT TO PALLADIUM AND RHODIUM SALES AGREEMENT
Exhibit 10.43
12/4/08
This FIRST AMENDMENT AGREEMENT TO PALLADIUM AND RHODIUM SALES AGREEMENT (this
“Amendment”) is made and entered into as of this 9th day of December, 2008, by and between
STILLWATER MINING COMPANY, a Delaware corporation, whose address is ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (“SMC”), and GENERAL MOTORS CORPORATION, a Delaware corporation,
with a place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (“GM”).
WHEREAS, SMC and GM are parties to a Palladium and Rhodium Sales Agreement dated as of
August 8, 2007 (the “Original Contract,” and, as the same may be amended from time to time,
the “Agreement”); and
WHEREAS, GM
has requested and SMC has agreed to an amendment to the Agreement, subject
to the terms and conditions hereof.
Accordingly, the parties hereto agree as follows:
SECTION 1. Definitions; Interpretation.
(a) Terms
Defined in Agreement. All capitalized terms used in this Amendment and not
otherwise defined herein shall have the meanings assigned to them in the Agreement.
(b) Interpretation. Headings in this Amendment are for convenience of reference only
and are not part of the substance hereof.
SECTION 2. Amendments to the Agreement.
(a) Amendments. The Agreement shall be amended as follows:
(i) Section 4(b) shall be amended by amending and restating the first sentence
to read as follows:
SMC will sell and deliver and GM will purchase ** Ounces of Rhodium each
month starting in ** and ending in **, except that (1)
for the first quarter of calendar **, the
quantity will be reduced to ** Ounces of Rhodium
per month; and (2) for the second, third and fourth
quarters of **, upon the request of GM to consider a
reduction in the quantity of Rhodiwn to an amount
less than ** Ounces per month (which request must be
made by the end of the first month ot the previous
quarter), SMC will review such request and notify GM
within five (5) business days of receipt of GM’s
request for reduction as to whether or not SMC can
accommodate such reduction in quantity, and if so, whether or not SMC will adjust the
pricing of such reduced quantity; if SMC’s proposal
is acceptable to GM, the Parties shall amend this
Agreement to adjust the quantity and, if applicable,
the price for the Ounces of Rhodium to be delivered
during such quarter in **.
| [**] | Denotes language for which Stillwater Mining Company has requested confidential treatment pursuant to the rules and regulations of the Securities Act of 1933, as amended. |
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(ii) Section 5(b) of the Agreement shall be amended by adding the
following sentence at the end of such section:
Notwithstanding anything in this Agreement to the contrary, the price per Ounce
to be paid to SMC by GM for the actual quantities of Rhodium delivered during
the first quarter of ** will be based on the JM Reference Price Average for the
Pricing Month, with no discount.
(b) References Within Agreement. Each reference in the Agreement to “this
Agreement” and the words “hereof,” “herein,” “hereunder,” or words of like import,
shall mean and be a reference to the Agreement as amended by this Amendment.
SECTION 3. Conditions of Effectiveness. The effectiveness of Section 2 of this Amendment shall
be subject to the satisfaction of the following condition precedent:
(a) Agreement. SMC and GM shall have each received a signed counterpart of this
Amendment, or a facsimile copy thereof, signed by the other party hereto.
SECTION 4. Miscellaneous.
(a) Agreement Otherwise Not Affected. Except as expressly amended pursuant
hereto, the Agreement shall remain unchanged and in full force and effect and is
hereby ratified and confirmed in all respects.
(b) No Reliance. Each
party hereto hereby acknowledges and confirms to the other
that such party is executing this Amendment on the basis of its own investigation and
for its own reasons without reliance upon any agreement, representations,
understanding or communication by or on behalf of any other Person.
(c) Binding Effect. This Amendment shall be binding upon, inure to the benefit of
and be enforceable by each party hereto and their respective successors and assigns.
(d) Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK UPON THE SAME TERMS AND CONDITIONS
AS THOSE SET FORTH IN
SECTION 26 OF THE AGREEMENT.
(e) Counterparts. This Amendment may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall constitute but
one and the same agreement.
[SIGNATURES FOLLOW ON NEXT PAGE.]
| [**] | Denotes language for which Stillwater Mining Company has requested confidential treatment pursuant to the rules and regulations of the Securities Act of 1933, as amended. |
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IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment, as of the
date first above written.
| STILLWATER MINING COMPANY | GENERAL MOTORS CORPORATION | |||||||||||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ | By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |||||||||||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇ | Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |||||||||||
| Title: | Vice President | Title: | Purchasing Director | |||||||||||
| [**] | Denotes language for which Stillwater Mining Company has requested confidential treatment pursuant to the rules and regulations of the Securities Act of 1933, as amended. |
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