Exhibit 10.14
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of August 13, 1997, is by and between STILLWATER
MINING COMPANY, a corporation duly organized and existing under the laws of the
State of Delaware (the "Company"), and Xxxxxxx X. Xxxxxxx ("Employee").
WHEREAS, the Company desires to employ Employee and Employee desires to be
employed by the Company pursuant to the terms and conditions of this Agreement;
and
WHEREAS, the Company has heretofore determined that it is in the best
interests of the Company and its stockholders to assure that the Company will
have the continued dedication of the Employee, notwithstanding the possibility,
threat or occurrence of a Change of Control (as defined below) of the Company;
and
WHEREAS, the Company has determined it is imperative to diminish the
inevitable distraction of the Employee by virtue of the personal uncertainties
and risks created by a pending or threatened Change of Control, to encourage the
Employee's full attention and dedication to the Company currently and in the
event of any threatened or pending Change of Control and to provide the Employee
with compensation and benefits arrangements upon a Change of Control which
ensure that the compensation and benefits to be paid to the Employee are at
least as favorable as those in effect at the time of the Change of Control and
which are competitive with those of other corporations.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
agree as follows:
ARTICLE 1
EMPLOYMENT
The Company hereby employs Employee, and Employee agrees to serve, as Chief
Executive Officer for the Company.
ARTICLE 2
BOARD MEMBERSHIP
Employee shall initially be appointed as Chairman of the Board of
Directors, and the Company shall nominate and shall use its reasonable efforts
to cause Employee to be elected to serve as a member of the Board of Directors.
Failure by the Company to cause Employee to continue in office as Chairman of
the Board of Directors or to be elected to serve as a member of the Board of
Directors shall not be a breach of this Agreement. Failure by the Company to
cause Employee to continue in office as Chairman of the Board of Directors shall
be "Good Reason" (as defined in Section 6.1 below) for Employee to terminate
this Agreement.
ARTICLE 3
TERM
The term of this Agreement shall be for a period of three (3) years
commencing August 13, 1997, unless sooner terminated as hereinafter provided.
The Agreement shall thereafter continue for subsequent two (2) year terms unless
altered or terminated as hereinafter provided; provided, however, that following
a Change of Control, as defined in Section 6.4, the Employment Term shall
continue for no less than an additional two (2) years. The period of Employee's
employment hereunder, including any extension or extensions pursuant to the
foregoing sentence, from the date of commencement until the date of expiration
or termination of this Agreement, is referred to hereinafter as the "Employment
Term."
ARTICLE 4
DUTIES AND AUTHORITY
Employee agrees, unless otherwise specifically authorized by the Company,
to devote substantially all of his business time and effort to do his duties for
the profit, benefit and advantage of the business of the Company, except that
Employee may serve on the boards of directors of other business corporations
that have no business relationship with the Company and which do not compete
with the Company. In performing his duties hereunder, Employee shall have the
authority customarily held by others holding positions similar to do those
assigned to Employee in similar businesses, subject to the general and customary
supervision of the Company's Board of Directors.
ARTICLE 5
COMPENSATION
5.1 Base Salary. The Company agrees to pay Employee a base salary of Two
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Hundred Seventy-five Thousand Dollars ($275,000.00) per year, payable at the
usual times for the payment of the Company's executive employees, subject to
adjustment as provided herein. Employee's base salary shall be reviewed at
least annually and may be increased, but not decreased, consistent with general
salary increases for the Company's executive employees or as appropriate in
light of the performance of Employee and the Company. Notwithstanding anything
herein to the contrary, Employee's base salary may be reduced in the event of an
across-the-board salary reduction for all executive officers; provided, however,
that the percentage reduction of Employee's base salary shall not exceed the
highest percentage reduction in base salary of any other executive officer.
5.2 Incentive Compensation. Employee shall participate in the Company's
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incentive compensation plans for executive officers of the Company, which plans
will be in effect during the Employment Term. The Company will provide for a
performance based cash bonus in an amount to be determined by the Board of
Directors of the Company (the target of which shall be 65% of Employee's base
salary and the maximum of which shall not exceed 130% of Employee's base
salary). For the first year of employment, Employee shall be guaranteed a bonus
of no less than 65% of Employee's base salary.
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5.3 Employee Benefits. Employee shall be eligible to participate in such
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other of the Company's employee benefit plans and to receive such benefits for
which his level of employment makes him eligible, in accordance with the
Company's policies as in effect from time to time during the Employment Term;
provided, however, that Employee shall be entitled to four weeks of vacation per
year during the initial term of this Agreement and during the term of each
extension hereof. In the event that Employee is ineligible to participate in
the Company's existing health plan, either in general or with respect to any
pre-existing condition, the Company shall provide Employee with comparable
health care benefits.
5.4 Options. The Company shall grant to Employee the right and option to
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purchase from the Company all or any part of an aggregate amount of 100,000
shares of the Common Stock of the Company under the Company's 1994 Stock Plan
pursuant to the Stock Option Agreement attached hereto as Exhibit A.
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ARTICLE 6
TERMINATION
6.1 Termination by the Company Without Cause; Termination by Employee for
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Good Reason.
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(a) The Company shall have the right to terminate this Agreement
without Cause (as defined below) upon ninety (90) days' notice to Employee.
If Employee's employment hereunder is terminated by the Company without
Cause or by Employee for "Good Reason" (as defined below) (other than a
termination involving a Change of Control or by reason of death or
disability), the Company shall pay Employee at the time of such termination
the following severance benefits for a three (3) year period following the
date of termination, if such termination occurs within the initial
Employment Term, and for a two (2) year period following the date of
termination if such termination occurs after the initial Employment Term
(the "Termination Period"):
(i) Annual base salary at the rate in effect immediately prior
to the termination date;
(ii) Bonus payable in such amount as would be payable to
Employee had he been employed by the Company for the full Termination
Period, at the target level in effect immediately prior to the
termination date, assuming the Company had achieved targeted
performance objectives for such period;
(iii) During the Termination Period, the Company shall timely
pay or provide to Employee any other amounts or benefits required to
be paid or provided or which Employee is eligible to receive under any
plan or policy of the Company to the same extent that Employee would
be eligible therefor if he were employed on a full-time basis by the
Company in the capacity provided for herein during the Termination
Period (the "Other Benefits"); provided, however, that should Employee
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be employed by another employer during the Termination Period and
become entitled to receive Other Benefits from such employer, the
Company's obligation to provide such Other Benefits hereunder shall be
terminated;
(iv) The Company shall make available to Employee post-
placement services for corporate executives at levels customary for
executives in Employee's position in the Company's industry; and
(v) All of the then outstanding Options (to the extent not
then exercisable) shall immediately become exercisable and Employee
may exercise the Options in full in accordance with Section 7 of the
Stock Option Agreement attached hereto as Exhibit A.
(b) For purposes of this Agreement, other than Section 6.4 hereof,
"Good Reason" shall mean:
(i) A substantial and material alteration in the nature or
status of the Employee's responsibilities, or the assignment of duties
inconsistent with, or a substantial and material alteration in the
nature or status of, the Employee's responsibilities;
(ii) Failure by the Company to cause Employee to continue in
office as Chairman of the Board of Directors;
(ii) Employee's job is eliminated other than by reason of
termination for Cause;
(iv) The Company fails to pay Employee any amount otherwise
vested and due hereunder or under any plan or policy of the Company,
which failure is not cured within ten (10) business days of receipt by
the Company of written notice from Employee which describes in
reasonable detail the amount which is due;
(v) A material reduction in Employee's base salary except in
the event of an across-the-board salary reduction for all executive
officers;
(vi) A material reduction in Employee's aggregate level of
benefits under the Company's pension, life insurance, medical, health
and accident, disability, deferred compensation or savings or similar
plans, except in the event of an across-the-board reduction in such
benefits for all executive officers;
(vii) A material reduction in Employee's reasonable opportunity
to earn incentive compensation under any plan in which Employee is a
participant;
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(viii) Employee's office is relocated outside of a 00-xxxx xxxxxx
xx Xxxxxx, Xxxxxxxx, without his written consent;
(ix) The Company and its successor(s) (as described in
subparagraph (x) below) shall discontinue the business of the Company;
(x) The failure of the Company to obtain an agreement to
expressly assume this Agreement from any successor to the Company
(whether such succession is direct or indirect by purchase, merger,
consolidation or otherwise, to substantially all of the business
and/or assets of the Company or a controlling portion of the Company's
stock); or
(xi) After August 13, 1998, failure by the Company to grant on
an annual basis stock options to purchase at least 80,000 shares of
Common Stock, assuming performance targets are satisfied, or to
provide that such options will vest on death or disability of
Employee.
6.2 Termination by the Company for Cause; Voluntary Termination by
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Employee. Employee's employment hereunder may be terminated by the Company for
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"Cause." For purposes of this Agreement, other than Section 6.4 hereof, "Cause"
shall mean:
(i) Misfeasance or nonfeasance of duty by the Employee
intended to injure or having the effect of injuring the reputation,
business or business relationships of the Company or any officers,
directors or employees;
(ii) The wilful and continued failure of Employee to perform
substantially Employee's duties under this Agreement (except by reason
of physical or mental incapacity) after a written demand for
substantial performance is delivered to Employee by the Board of
Directors which specifically identifies the manner in which the Board
believes that Employee has not substantially performed Employee's
duties which is not remedied or reasonable steps to effect such remedy
are not commenced within fifteen (15) days after such demand is
received by Employee and diligently pursued to completion;
(iii) Employee's dishonesty in the performance of his duties
hereunder, or
(iv) Employee's conviction of a felony, any crime involving
moral turpitude, or any crime which could reflect unfavorably upon the
Company.
Employee shall have the right to voluntarily terminate this Agreement upon
ninety (90) days' notice to the Company. If Employee is terminated for Cause,
or if Employee voluntarily terminates employment hereunder other than for Good
Reason, he shall be entitled to receive his base salary through the date of
termination. All other benefits, if any, payable to Employee following such
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termination of Employee's employment shall be determined in accordance with the
plans, policies and practices of the Company.
6.3 Termination by Death or Disability. Upon termination of Employees'
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employment due to death of Employee, Employee shall be entitled to his base
salary at the rate in effect at the time of Employee's death through the end of
the month in which his death occurs, as well as the target annual bonus prorated
through the end of the month in which death occurs. Employee's employment
hereunder may be terminated by the Company if Employee becomes physically or
mentally incapacitated and (i) is unable for a period of one hundred eighty
(180) consecutive days to perform his duties and (ii) a determination is made
regarding Employee's disability by a physician appointed by the chief
administrator of University Hospital, Denver, Colorado, or another health
professional agreed upon by the Company and Employee (such incapacity is
hereinafter referred to as "Disability"). Upon any such termination for
Disability, Employee shall be entitled to receive his base salary, as well as
the target annual bonus, prorated in each case through the date on which
Employee is first eligible to receive payment of disability benefits in lieu of
salary under the Company's employee benefit plans as then in effect.
6.4 Termination Following a Change of Control; Benefits.
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(a) In the event there is a Termination Following a Change of Control,
the Agreement shall terminate and Employee shall be entitled to the
following severance benefits:
(i) 300 percent of Employee's annual base salary at the rate
in effect immediately prior to the Change of Control or on the
Termination Date, whichever is higher, payable in a lump sum within
sixty (60) days after the Termination Date;
(ii) 300 percent of Employee's target bonus in effect
immediately prior to the Change of Control or on the Termination Date,
whichever is higher, payable at the same time as the payment in (a)(i)
above;
(iii) To the extent not theretofore paid or provided, the
Company shall timely pay or provide to Employee any other amounts or
benefits required to be paid or provided or which Employee is eligible
to receive under any plan, program, policy, practice, contract or
agreement of the Company (other than severance pay) to the same extent
that Employee would be eligible therefor if he were employed on a
full-time basis by the Company in the capacity provided for herein for
a period of 36 months after the Termination Date, including receiving
the full benefit of three (3) years of employment at the income levels
provided for herein for purposes of any retirement plan utilizing
years of service as a criteria in the provision of benefits (such
other amounts and benefits shall be hereinafter referred to as the
"Other Benefits"); provided, however, that to the extent Employee,
following the Termination Date, becomes employed by another employer
and becomes entitled to
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receive health insurance benefits from such employer, the Company's
obligation to provide such health insurance benefits hereunder shall
be decreased;
(iv) If the Employee receives any payments hereunder or under
any other plan or agreement (the "Total Payments") which are subject
to an excise tax imposed under Section 4999 of the Internal Revenue
Code of 1986, as amended, or any similar tax imposed under federal,
state or local law (collectively, "Excise Taxes"), the Company shall
pay to the Employee (on or before the date which the Employee is
required to pay such Excise Taxes) an additional amount such that the
net amount retained by the Employee after deduction of any Excise Tax
on the Total Payments and any federal, state and local income and
employment taxes and Excise Tax upon the additional payment made under
this Section 6.4(a)(iv) shall be equal to the Total Payments. For
purposes of calculating the amount payable to Employee under this
Section, the federal and state income tax rates used shall be the
highest marginal federal and state rates applicable to ordinary income
in Employee's state of residence, taking into account any federal
income tax deductions or credits available to Employee for state
income taxes. The Company shall cause its independent auditors to
calculate such amount and provide Employee a copy of such calculation
at least ten (10) days prior to the date specified above for payment
of such amount; and
(v) All accrued compensation and unreimbursed expenses through
the Termination Date. Such amounts shall be paid to Employee in a
lump sum in cash within thirty (30) days after the Termination Date.
(vi) The Employee shall be free to accept other employment
during such period, and, except as provided herein, there shall be no
offset of any employment compensation earned by the Employee in such
other employment during such period against payments due Employee
hereunder, and there shall be no offset in any compensation received
from such other employment against the continued salary set forth
above.
(b) For purposes of this Section 6.4, the following terms shall have
the meanings set forth below:
(i) A "Change in Control" of the Company shall mean and shall
be deemed to have occurred if any of the following events shall have
occurred:
(a) Any person (as defined in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) is or becomes the beneficial owner (as defined in Rule
13d-3 of the Exchange Act), directly or indirectly, of securities
of the Company (not including in the securities beneficially
owned by such person any securities acquired directly from the
Company or its affiliates) representing 30% or more of the
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combined voting power of the Company's then outstanding
securities, excluding any person who becomes such a beneficial
owner in connection with a transaction described in clause (i) of
paragraph (3) below; or
(b) the following individuals cease for any reason to
constitute a majority of the number of directors then serving:
individuals who, on the date hereof, constitute the Board and any
new director (other than a director whose initial assumption of
office is in connection with an actual or threatened election
contest, including but not limited to a consent solicitation,
relating to the election of directors of the Company) whose
appointment or election by the Board or nomination for election
by the Company's stockholders was approved or recommended by a
vote of at least two-thirds (2/3) of the directors then still in
office who either were directors on the date hereof or whose
appointment, election or nomination for election was previously
so approved or recommended; or
(c) there is consummated a merger or consolidation of the
Company or any direct or indirect subsidiary of the Company with
any other corporation, other than (i) a merger or consolidation
which would result in the voting securities of the Company
outstanding immediately prior to such merger or consolidation
continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity or
any parent thereof) at least 55% of the combined voting power of
the securities of the Company or such surviving entity or any
parent thereof outstanding immediately after such merger or
consolidation, or (ii) a merger or consolidation effected to
implement a recapitalization of the Company (or similar
transaction) in which no person is or becomes the beneficial
owner, directly or indirectly, of securities of the Company (not
including in the securities beneficially owned by such person any
securities acquired directly from the Company or its affiliates)
representing 30% or more of the combined voting power of the
Company's then outstanding securities; or
(d) the stockholders of the Company approve a plan of
complete liquidation or dissolution of the Company or there is
consummated an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets,
other than a sale or disposition by the Company of all or
substantially all of the Company's assets to an entity, at least
60% of the combined voting power of the voting securities of
which are owned by stockholders of the Company in substantially
the same proportions as their ownership of the Company
immediately prior to such sale.
Notwithstanding the foregoing, a "Change in Control" shall not be
deemed to have occurred by virtue of the consummation of any
transaction or series of integrated transactions immediately following
which the record holders of the
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common stock of the Company immediately prior to such transaction or
series of transactions continue to have substantially the same
proportionate ownership in an entity which owns all or substantially
all of the assets of the Company immediately following such
transaction or series of transactions.
(ii) "Termination Date" shall mean, if the Employee's
employment is terminated by the Company pursuant to a Termination
Following a Change of Control, the date of receipt of a notice of
termination or any later date specified therein, as the case may be;
(iii) "Termination Following a Change of Control" shall mean a
Termination of the Employee without Cause by the Company in connection
with or within two years following a Change of Control or a
termination by the Employee for Good Reason of the Employee's
employment with the Company within two years following a Change of
Control.
(iv) "Good Reason" shall mean:
(a) A substantial and material alteration in the nature or
status of the Employee's responsibilities, or the assignment of
duties inconsistent with, or a substantial and material
alteration in the nature or status of, the Employee's
responsibilities;
(b) Employee's job is eliminated other than by reason of
termination for Cause
(c) The Company fails to pay Employee any amount otherwise
vested and due hereunder or under any plan or policy of the
Company, which failure is not cured within ten (10) business days
of receipt by the Company of written notice from Employee which
described in reasonable detail the amount which is due;
(d) A reduction in Employee's base salary except in the
event of an across-the-board salary reduction for all executive
officers, including the executive officers of the entity, if any,
controlling the Company following the Change of Control;
(e) A reduction in Employee's aggregate level of benefits
under the Company's pension, life insurance, medical, health and
accident, disability, deferred compensation or savings or similar
plans, except in the event of an across-the-board reduction in
such benefits for all executive officers, including the executive
officers of the entity, if any, controlling the Company following
the Change of Control;
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(f) A reduction in Employee's reasonable opportunity to
earn incentive compensation in at least the amounts contemplated
in Section 5.2 under any plan in which Employee is a participant;
(g) Employee's office is relocated outside of a 00-xxxx
xxxxxx xx Xxxxxx, Xxxxxxxx without his written consent;
(h) The Company and its successor(s) (as described in
paragraph (9) below) shall discontinue the business of the
Company;
(i) The failure of the Company to obtain an agreement to
expressly assume this Agreement from any successor to the Company
(whether such succession is direct or indirect by purchase,
merger, consolidation or otherwise, to substantially all of the
business and/or assets of the Company or a controlling portion of
the Company's stock); or
(j) After August 13, 1998, failure by the Company to grant
on an annual basis stock options to purchase no less than 80,000
shares of Common Stock, assuming performance targets are
satisfied, or to provide that such options will vest on death or
disability of Employee.
(v) "Cause" shall mean:
(a) Misfeasance or nonfeasance by the Employee in the
performance of his duties under this Agreement intended to injure
the Company which has a material adverse effect on the Company's
business or operations, if such failure is not remedied or
reasonable steps to effect such remedy are not commenced within
thirty (30) days after written notice of such violation; or
(b) Employee's conviction of a felony or any crime
involving moral turpitude.
ARTICLE 7
INSURANCE
7.1 Key Man Insurance. Employee agrees that the Company may, from time to
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time, apply for and take out in its own name and at its own expense, life,
health, accident, or other insurance upon Employee that the Company may deem
necessary or advisable to protect its interests hereunder; and Employee agrees
to submit to any medical or other examination necessary for such purposes and to
assist and cooperate with the Company in preparing such insurance; and Employee
agrees that he shall have no right, title, or interest in or to such insurance.
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7.2 Directors' and Officers' Insurance. The Company shall use
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commercially reasonable efforts to obtain and maintain directors' and officers'
liability insurance coverage in an amount equivalent to that of a well-insured,
similarly situated company; provided, however, that the failure to obtain and
maintain such insurance after the Company has exercised such commercially
reasonable efforts shall not be a breach of the Company's obligations under this
Agreement. Any directors' and officers' liability insurance covering Employee
shall continue to apply following the period in which the Employee is serving as
officer or director of the Company for actions or omissions during the period in
which Employee was acting as officer or director.
ARTICLE 8
FACILITIES AND EXPENSES
The Company shall make available to Employee such office space, secretarial
services, office equipment and furnishings as are suitable and appropriate to
Employee's title and duties. The Company shall promptly reimburse Employee for
all reasonable expenses incurred in the performance of his duties hereunder,
including expenses for entertainment, travel, management seminars and use of the
telephone, subject to the Company's reasonable requirements with respect to the
reporting and documentation of such expenses.
ARTICLE 9
NONCOMPETITION
9.1 Necessity of Covenant. The Company and Employee acknowledge that:
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(a) The Company's business is highly competitive;
(b) The Company maintains confidential information and trade secrets
as described in Article 10, all of which are zealously protected and kept
secret by the Company;
(c) In the course of his employment, Employee will acquire certain of
the information described in Article 10, and in the event of the
termination of Employee's employment, the Company would be adversely
affected if such information is used for the purposes of competing with the
Company;
(d) The Company transacts business throughout the world; and
(e) For these reasons, both the Company and Employee further
acknowledge and agree that the restrictions contained herein are reasonable
and necessary for the protection of their respective legitimate interests
and that any violation of these restrictions would cause substantial injury
to the Company.
9.2 Covenant Not to Compete. Employee agrees that from and after the date
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hereof during the Employment Term and for a period of one (1) year after
cessation of employment with the Company, he will not, without the express
written permission of the Company, which may be
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given or withheld in the Company's sole discretion, directly or indirectly own,
manage, operate, control, lend money to, endorse the obligations of, or
participate or be connected as an officer, director, 5% or more stockholder of a
publicly-held company, stockholder of a closely-held company, employee, partner,
or otherwise, with any enterprise or individual engaged in a business which is
competitive with the business conducted by the Company at the time of cessation
of employment with the Company. It is understood and acknowledged by both
parties that, inasmuch as the Company transacts business worldwide, this
covenant not to compete shall be enforced throughout the United States and in
any other country in which the Company is doing business as of the date of
Employee's cessation of employment.
9.3 Disclosure of Outside Activities. Employee, during the term of his
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employment by the Company, shall at all times keep the Company informed of any
outside business activity and employment, and shall not engage in any outside
business activity or employment which may be in conflict with the Company's
interests.
9.4 Survival. The terms of this Article 9 shall survive the expiration or
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termination of this Agreement for any reason.
ARTICLE 10
CONFIDENTIAL INFORMATION AND TRADE SECRETS
10.1 Nondisclosure of Confidential Information. Employee has acquired and
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will acquire certain "Confidential Information" of the Company. "Confidential
Information" shall mean any information that is not generally known, including
trade secrets, outside the Company and that is proprietary to the Company,
relating to any phase of the Company's existing or reasonably foreseeable
business which is disclosed to Employee by the Company including information
conceived, discovered or developed by Employee. Confidential Information
includes, but shall not be limited to, business plans, financial statements and
projections, operating forms (including contracts) and procedures, payroll and
personnel records, marketing materials and plans, proposals, software codes and
computer programs, project lists, project files, price information and cost
information and any other document or information that is designated by the
Company as "Confidential." The term "trade secret" shall be defined as follows:
A trade secret may consist of any formula, pattern, device or
compilation of information which is used in one's business, and
which provides to the holder an opportunity to obtain an advantage
over competitors who do not know or use it.
Accordingly, employee agrees that he shall not, during the Employment Term and
for three (3) years after cessation of employment with the Company, use for his
own benefit such Confidential Information or trade secrets acquired during the
term of his employment by the Company. Further, during the Employment Term and
for three (3) years after cessation of employment with the Company, Employee
shall not, without the written consent of the Board of Directors of the Company
or a person duly authorized thereby, which consent may be given or withheld in
the Company's sole discretion, disclose to any person, other than an employee of
the Company or a person to whom disclosure is reasonably necessary or
appropriate in connection with the
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performance by Employee of his duties, any Confidential Information or trade
secrets obtained by him while in the employ of the Company.
10.2 Return of Confidential Information. Upon termination of employment,
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Employee agrees to deliver to the Company all materials that include
Confidential Information or trade secrets, and all other materials of a
confidential nature which belong to or relate to the business of the Company.
10.3 Exceptions. The restrictions and obligations in Section 10.1 shall
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not apply with respect to any Confidential Information which: (i) is or becomes
generally available to the public through any means other than a breach by
Employee of his obligations under this Agreement; (ii) is disclosed to Employee
without an obligation of confidentiality by a third party that is not an
affiliate of the Company who has the right to make such disclosure; (iii) is
developed by Employee independent of his performance of duties hereunder without
use of or benefit from the Confidential Information; (iv) was in possession of
Employee without obligations of confidentiality prior to receipt under this
Agreement; (v) is required to be disclosed to enforce rights under this
Agreement; or (vi) is required to be disclosed by Law.
10.4 Survival. The terms of this Article 10 shall survive the expiration
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or termination of this Agreement for any reason.
ARTICLE 11
JUDICIAL CONSTRUCTION
Employee believes and acknowledges that the provisions contained in this
Agreement, including the covenants contained in Articles 9 and 10 of this
Agreement, are fair and reasonable. Nonetheless, it is agreed that if a court
finds any of these provisions to be invalid in whole or in part under the laws
of any state, such finding shall not invalidate the covenants, nor the Agreement
in its entirety, but rather the covenants shall be construed and/or blue-lined,
reformed or rewritten by the court as if the most restrictive covenants
permissible under applicable law were contained herein.
ARTICLE 12
RIGHT TO INJUNCTIVE RELIEF
Employee acknowledges that a breach by Employee of any of the terms of
Articles 9 or 10 of this Agreement will render irreparable harm to the Company;
and that in the event of such breach the Company shall therefore be entitled to
any and all equitable relief, including, but not limited to, injunctive relief,
and to any other remedy that may be available under any applicable law or
agreement between the parties.
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ARTICLE 13
CESSATION OF CORPORATE BUSINESS
This Agreement shall cease and terminate if the Company shall discontinue
its business, and all rights and liabilities hereunder shall cease, except as
provided in Section 6.4 and Article 14.
ARTICLE 14
ASSIGNMENT
14.1 Permitted Assignment. Subject to the provisions of Section 6.4, the
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Company shall have the right to assign this contract to its successors or
assigns, and all covenants or agreements hereunder shall inure to the benefit of
and be enforceable by or against its successors or assigns.
14.2 Successors and assigns. The terms "successors" and "assigns" shall
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mean any person or entity which buys all or substantially all of the Company's
assets, or a controlling portion of its stock, or with which it merges or
consolidates.
ARTICLE 15
FAILURE TO DEMAND, PERFORMANCE AND WAIVER
The failure by either party to demand strict performance and compliance
with any part of this Agreement during the Employment Term 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 as or be construed as a waiver of any subsequent
breach thereof.
ARTICLE 16
ENTIRE AGREEMENT
The Company and Employee acknowledge that this Agreement contain the full
and complete agreement between and among the parties, that there are no oral or
implied agreements or other modifications not specifically set forth herein, and
that this Agreement supersedes any prior agreements or understandings, if any,
between the Company and Employee, whether written or oral. The parties further
agree that no modifications of this Agreement may be made except by means of a
written agreement or memorandum signed by the parties.
ARTICLE 17
GOVERNING LAW
The parties hereby agree that his Agreement and the Exhibit hereto shall be
construed in accordance with the laws of the State of Colorado, without giving
effect to any choice of law or conflict of law provision or rule (whether of the
State of Colorado or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of Colorado.
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ARTICLE 18
ATTORNEYS' FEES
Prior to a Change of Control, if either party shall commence any action or
proceeding against the other that arises out of the provisions hereof, or to
recover damages as the result of the alleged breach of any of the provisions
hereof, the prevailing party therein shall be entitled to recover all reasonable
costs incurred in connection therewith, including reasonable attorneys' fees.
Following a Change of Control, should a dispute arise under this Agreement, or
any action or proceeding be commenced to recover damages as a result of an
alleged breach of the terms of this Agreement, the Company shall be required to
pay the costs of Employee incurred in connection therewith, including reasonable
attorneys' fees.
ARTICLE 19
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.
IN WITNESS WHEREOF, the Company has hereunto signed its name and Employee
hereunder has signed his name, all as of the day and year first-above written.
STILLWATER MINING COMPANY
By: /s/ XXX XXXXXXX
___________________________
Name: XXX XXXXXXX
______________________
Title: CHAIRMAN
_____________________
EMPLOYEE
/s/ XXXXXXX X. XXXXXXX
______________________________
Xxxxxxx X. Xxxxxxx
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