EXHIBIT 10.40
STILLWATER MINING COMPANY
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), dated as of MARCH 22,
2004, is made by and between Stillwater Mining Company, a Delaware corporation
(the "Company"), and XXXXXXX X. WING ("Executive") (each individually a "Party"
and collectively, the "Parties").
RECITALS
WHEREAS, the Company desires to employ Executive and Executive desires
to be employed by the Company pursuant to the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained herein and for other good and valuable consideration, the Parties
agree as follows:
1. Employment; Duties and Scope.
(a) Position. Executive shall serve as the Company's Vice
President and Chief Financial Officer. In such capacity, the Executive shall
report to the Chairman of the Board of Directors (the "Board") and the Chief
Executive Officer. Executive shall have and perform such duties,
responsibilities, and authorities as are customary for Vice Presidents and Chief
Financial Officers in corporations of similar size and businesses as the Company
as they may exist from time to time and as are consistent with such positions
and status.
(b) Duties; Obligations to the Company. During the
Employment Term, Executive shall devote his full business efforts and time to
the Company and the Company will be entitled to all of the benefits and profits
arising from or incident to all such work services and advice. Executive shall
be responsible for performing the business and professional services typically
performed by a vice president and chief financial officer of any company, or as
may reasonably be assigned to him by the Chairman of the Board and Chief
Executive Officer. Executive agrees not to render commercial or professional
services of any nature to any person or organization, whether or not for
compensation, during the Employment Term without advance written approval of the
Board, and Executive will not directly or indirectly engage or participate
during the Employment Term in any business that is competitive in any manner
with the Company's business; provided, however, that this shall not preclude
Executive from owning up to two percent (2%) of the outstanding equity
securities of a corporation whose stock is listed on a national stock exchange
or the Nasdaq.
(c) No Conflicting Obligations. Executive represents and
warrants to the Company that he is under no obligation or commitment, whether
contractual or otherwise, that is inconsistent with his obligations under this
Agreement. Executive represents and warrants that he will not use or disclose,
in connection with his employment by the Company, any trade secrets or other
proprietary information or intellectual property in which Executive or any other
person has any
right, title, or interest and that his employment by the Company as contemplated
by this Agreement will not infringe or violate the rights of any other person or
entity. Executive represents and warrants to the Company that he has returned
all property and confidential information belonging to any prior employers.
2. Employment Term.
(a) The Initial Period of Executive's employment pursuant
to this Agreement shall begin March 22, 2004 (the "Commencement Date") and shall
end on March 21, 2005 ("Initial Period"), unless otherwise terminated by either
Party prior to the scheduled termination date as provided in Sections 8 and 9 of
this Agreement.
(b) The Initial Period shall automatically be extended
for successive one year periods ("Renewal Period"), if not already otherwise
terminated as provided in this Agreement, unless either Party notifies the other
no later than three (3) months prior to the scheduled termination of such
Initial Period or Renewal Period, in which case Executive's employment shall
terminate upon the scheduled termination date of the applicable Initial Period
or Renewal Period.
(c) In the event that this Agreement is not renewed
because Executive has given the three-month notice prescribed in Section 2(b) on
or before the expiration of the Initial Period or any Renewal Period, such
non-renewal shall be treated as a Termination for Cause and Executive shall have
the same entitlements as provided in Section 9(b)(i) below.
(d) The entire term of Executive's employment pursuant to
this Agreement from the Commencement Date until the date of expiration or
termination of Executive's employment pursuant to this Agreement shall be
referred to herein as the "Employment Term."
3. Cash Compensation.
(a) Base Salary. During the Employment Term, the Company
shall pay the Executive as compensation for his services a semi-monthly base
salary at the annualized rate of two hundred and forty thousand dollars
($240,000), less applicable deductions and withholdings. Such base salary shall
be paid semi-monthly in accordance with normal Company payroll practices and
procedures. Executive's base salary shall be reviewed for increase no less than
every twelve (12) months and shall be subject to decrease only in the event (and
only to the extent) of an across-the-board reduction for other senior management
employees of the Company. (The annualized base salary to be paid to Executive
pursuant to this Section 3(a), together with any subsequent modifications
thereto, shall be referred to in this Agreement as the "Base Salary.")
(b) Bonuses. Executive shall be eligible to earn an
annual target bonus equal to 30% of his Base Salary (the "Target Bonus") based
upon satisfaction of criteria determined by the Board and/or its Compensation
Committee for each year during the Employment Term, starting with the year
commencing January 1, 2004 (except that for the year 2004, the Target Bonus
amount shall be $56,016 which is a pro rata portion of the Target Bonus for such
period based on the Commencement Date). Executive shall be eligible to earn a
maximum bonus equal to 60% of his Base Salary. For 2004, the Company shall
provide Executive with written notice of that period's
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performance goals no later than April 30, 2004; thereafter, written notice of
the performance goals shall be provided by February 28 of the applicable year.
4. Employee Benefits.
(a) During the Employment Term, Executive shall be
eligible to participate in such other of the Company's employee benefit plans
and to receive such benefits for which his position makes him eligible, in
accordance with the Company's plans and policies as in effect from time to time
during the Employment Term, subject in each case to the generally applicable
terms and conditions of the plan or policy in question and to the determinations
of any person or committee administering such plan or policy.
(b) The Company shall provide the Executive with use of a
Company vehicle during the Employment Term.
(c) Executive shall be entitled to four (4) weeks of
vacation per year during the Employment Term.
5. Business Expense Reimbursements. During the Employment Term,
Executive shall be authorized to incur necessary and reasonable travel,
entertainment and other business expenses in connection with the performance of
his duties hereunder. The Company shall reimburse Executive for such expenses
upon presentation of an itemized account and appropriate supporting
documentation, all in accordance with the Company's generally applicable
policies.
6. Relocation. The Company will reimburse Executive for costs
related to his relocation to Montana, in accordance with the Company's standard
relocation policy, provided, however, that the Company shall also provide the
Executive with the option of having the Company's relocation firm conduct an
appraisal of Executive's current home and purchase such home at the appraised
value.
7. Equity.
(a) Subject to Board approval, Executive shall be granted
an option to purchase 30,000 shares of the Company's Common Stock (the "Option
Shares"), at the aggregate Fair Market Value of the Option Shares on the date of
grant, pursuant to the Company's 1998 Equity Incentive Plan. "Fair Market Value"
means as of any given date, the closing sale price per share of the Company's
common stock reported on a consolidated basis for securities listed on the
principal stock exchange or market on which the common stock is traded on the
date as of which such value is being determined or, if there is no sale on that
day, then on the last previous day on which a sale was reported. The grant and
exercise of the Option Shares shall be subject to the terms of the notice of
grant of the Option and the Company's standard form of Non-Qualified Stock
Option Agreement ("Option Agreement"), and shall be contingent upon Executive
executing such Option Agreement and, for exercise, the Company's standard form
of stock purchase agreement. The Option Shares shall have a ten (10) year term
and shall vest in three (3) equal installments on each of the first three (3)
anniversaries of the date of this Agreement, as specified in the Option
Agreement. Executive may only exercise the Option Shares to the extent that they
have vested.
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(b) Executive also shall be eligible to participate in
annual option grants, if any, by the Company to its executives. Whether any
option is granted and if so, the number of shares which Executive may be granted
the option to purchase, shall be entirely within the discretion of the Board
and/or its Compensation Committee.
8. Termination of Employment. Notwithstanding the fixed term of
Executive's employment under this Agreement, the Company and Executive each may
terminate Executive's employment at any time for any or no reason with or
without Cause (as defined in Section 9(b)(ii)), upon written notice to the other
Party. Executive's employment will terminate automatically in the event of his
death. Any payments and/or benefits due Executive from the Company upon and/or
after termination are specified in Section 9.
9. Termination Payments and Benefits.
(a) Payments and Reimbursements Upon Any Termination of
Employment. In the event that Executive's employment terminates for any reason,
the Company shall pay Executive all Base Salary, any accrued but unpaid bonuses
for the period prior to the year of termination of employment, and all accrued
but unpaid vacation earned through the date of termination of employment, each
less applicable withholdings and deductions, and any reimbursement of expenses
owed pursuant to this Agreement within ten (10) days of the date of termination
("Termination Date"). Only the amounts stated in this Section 9(a), and no
severance payments or benefits, shall be due to Executive upon a termination of
his employment on the scheduled termination date of the Initial Period or
Renewal Period.
(b) Effect of Termination for Cause or Termination
without Good Reason.
(i) In the event that the Company terminates
Executive's employment for Cause or Executive terminates employment
(including any non-renewal by Executive) without Good Reason (as
defined below):
(A) Executive shall receive all
payments provided in Section 9(a) above;
(B) Executive's outstanding vested
Option Shares shall be exercisable in accordance with the
terms and time limits of the applicable Option Agreement; and
(C) any unvested Option Shares shall be
forfeited on the Termination Date.
(ii) Definition of Termination for Cause. For the
purposes of this Agreement, a termination of Executive's employment for
"Cause" means a termination of Executive's employment by the Company
based upon a determination that any one or more of the following has
occurred: (A) misfeasance or nonfeasance of duty by Executive that
which was intended to or does injure the reputation of Company or its
business or relationships; (B) conviction of, or plea of guilty or nolo
contendere by Executive to, any
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felony or crime involving moral turpitude; (C) Executive's willful and
continued failure to substantially perform his duties under this
Agreement (except by reason of physical or mental incapacity) after
written notice from the Board and 15 days to cure such failure; (D)
dishonesty by Executive in performance of his duties under this
Agreement; or (E) willful and material breach of the restrictive
covenants contained in this Agreement; provided however, that
definitions (C) through (E) shall not provide Cause for termination if
such termination occurs within two (2) years following a Change in
Control. A termination of Executive's employment by the Company for any
other reason will be a termination without "Cause."
(c) Effect of Termination Without Cause or Resignation
for Good Reason Other Than Within Two Years Following A Change in Control.
(i) In the event that, at any time other than
within two (2) years following a Change in Control, the Company
terminates Executive's employment without Cause or Executive resigns
his employment for Good Reason and is not breaching the provisions of
Sections 14 and 15 hereof, the Company shall provide Executive with the
following:
(A) all payments stated in Section 9(a)
above;
(B) a pro rata portion of Executive's
Target Bonus, less applicable withholdings and deductions,
which pro rata portion shall be determined by multiplying the
Target Bonus by a fraction, the numerator of which is the
number of days elapsed in the calendar year of the date of
termination and the denominator of which is 365 (except for
2003, when the numerator equals the number of days elapsed
since March 22, 2004 and the denominator is 284) payable
within 10 days of the Termination Date;
(C) continued semi-monthly payments at
Executive's Base Salary rate, less applicable withholdings and
deductions, for a period of twelve (12) months;
(D) continuation of Executive's
medical, health, and life insurance (as in effect immediately
prior to the date of termination) for a period of twelve (12)
months, or if not permissible or commercially reasonable to
continue the same coverage of Executive under one or more of
the insurance policies or plans, continued payment for a
period of twelve (12) months of the after-tax cost to the
Company of providing such coverage to Executive (as measured
immediately prior to the date of termination); provided
however, that such benefits or payments shall cease upon the
date on which Executive is eligible for similar aggregate
coverage from a subsequent employer; and
(E) the applicable accelerated vesting
(if any) of the Option Shares, pursuant to the applicable
Option Agreement.
(ii) Relevant Definitions.
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(A) Change in Control. For the purposes
of this Agreement, a "Change in Control" shall mean and shall
be deemed to have occurred if any of the following events
shall have occurred:
(1) Any "person" (as such term
is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")
becomes the "beneficial owner" (as defined in Rule
13d-3 under 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 thirty
percent (30%) or more of the combined voting power of
the Company's then outstanding voting securities,
excluding any person who becomes such a beneficial
owner in connection with a transaction described in
clause (i) of subsection (3) below; or
(2) A change in the
composition of the Board occurring within a two-year
period, as a result of which fewer than a majority of
the directors are Incumbent Directors. "Incumbent
Directors" shall mean directors who either (i) are
directors of the Company as of the date hereof, or
(ii) are elected, or nominated for election, to the
Board with the affirmative votes of at least
two-thirds (2/3) of the Incumbent Directors at the
time of such election or nomination (but shall not
include an individual whose election or nomination is
in connection with an actual or threatened election
or proxy contest, including but not limited to a
consent solicitation relating to the election of
directors to the Company); or
(3) The consummation of 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 thereto
continuing to represent (either by remaining
outstanding or by being converted into voting
securities of the surviving entity or any parent
thereof) at least fifty-five percent (55%) of the
combined voting power of the voting 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 thirty
percent (30%) or more of the combined voting power of
the Company's then outstanding securities; or
(4) The consummation of a
stockholder-approved sale, transfer, or other
disposition by the Company of all or substantially
all of the Company's assets in complete liquidation
or dissolution of the Company, other than a sale,
transfer, or other disposition by the Company of all
or
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substantially all of the Company's assets to an
entity, at least sixty percent (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.
(5) Notwithstanding the
foregoing subsections (1) through (4), 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 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.
(B) Resignation for Good Reason. For
the purposes of this Agreement, a resignation for "Good
Reason" means a termination of Executive's employment at his
initiative following the occurrence, without Executive's
written consent, of one or more of the following events
(except as a result of a prior termination):
(1) a material diminution or
change, adverse to Executive, in Executive's
positions, titles, duties or offices as set forth in
Section 1, status, or nature of responsibilities
within the Company;
(2) a decrease in Executive's
annual Base Salary or Target Bonus award opportunity
below 30% of Base Salary (other than an
across-the-board percentage reduction for senior
management executives);
(3) a material reduction in
the aggregate benefits for which Executive is
eligible under the Company's benefit plans (other
than an across-the-board reduction in the aggregate
benefits for senior management executives);
(4) any other failure by the
Company to perform any material obligation under, or
breach by the Company of any material provision of,
this Agreement that is not cured within 10 business
days of receipt of written notice from Executive;
(5) a relocation of the
Company's corporate offices outside of the State of
Montana; or
(6) any failure to secure the
agreement of any successor corporation or other
entity to the Company to fully assume the Company's
obligations under this Agreement.
Any termination by the Executive for any reason other
than those provided in subsections (1) - (6), above, or death or Disability,
shall be termination "without Good Reason."
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(d) Effect of Termination Without Cause or Resignation
for Good Reason Within Two (2) Years Following A Change in Control. If, upon or
within two (2) years following a Change in Control, Executive resigns his
employment with the Company for Good Reason or the Company terminates
Executive's employment without Cause, then, in lieu of the severance payments
and benefits stated in Section 9(c) above, not materially breaching the
provisions of Sections 14 and 15 hereof, the Company shall provide Executive
with the following:
(i) all payments stated in Section 9(a) above
plus settlement of any amounts due under any Company plan, policy or practice;
(ii) a pro rata portion of Executive's Target
Bonus, less applicable withholdings and deductions, which pro rata portion shall
be determined by multiplying the Target Bonus by a fraction, the numerator of
which is the number of days elapsed in the calendar year of the date of
termination and the denominator of which is 365 (except for 2004 when the
numerator equals the number of days elapsed since March 22, 2004 and the
denominator is 284) payable within thirty (30) days of the Termination Date;
(iii) a lump sum, payable within sixty (60) days
of the Termination Date, equal to one and one half (1 1/2 ) times the sum of (A)
Executive's Base Salary (or if a reduction of Base Salary is the reason for
Executive's termination for Good Reason, the Base Salary in effect immediately
prior to such reduction) plus (B) the greater of (i) Executive's Target Bonus,
or (ii) the bonus paid to Executive for the most recent calendar year, less
applicable withholdings and deductions;
(iv) continuation of Executive's medical, health,
and life insurance (as in effect immediately prior to the date of termination)
for a period of eighteen (18) months, or if not permissible or commercially
reasonable to continue the same coverage of Executive under one or more of the
insurance policies or plans, continued payment for a period of eighteen (18)
months of the after-tax cost to the Company of providing such coverage to
Executive (as measured immediately prior to the date of termination); provided
however, that such benefits or payments shall cease upon the date on which
Executive is eligible for similar aggregate coverage from a subsequent employer;
and
(v) immediate accelerated vesting of all Option
Shares, pursuant to the applicable Option Agreement, with the Option Shares
remaining exercisable for the balance of the term as determined in accordance
with the terms of the Option Agreement.
(e) Termination of Employment Due to Disability.
(i) In the event that Executive's employment
terminates due to Disability, Executive shall receive the following:
(A) the payments stated in Section
9(a), provided that the Base Salary, less applicable
withholdings and deductions, shall be paid at least through
the date on which Executive is eligible to receive disability
payments;
(B) A pro rata portion of the annual
Target Bonus for the year in which Executive's employment
terminates, less applicable withholdings and
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deductions, calculated by multiplying the Target Bonus by a
fraction, the numerator of which is the number of days elapsed
in the year as of the date of termination, and the denominator
of which is 365 (except for 2004 when numerator equals the
number of days elapsed since March 22, 2004 and the
denominator is 284) payable within 10 days of the Termination
Date; and
(C) Disability benefits in accordance
with the Company's long-term disability plan.
(ii) A termination of Executive's employment due
to "Disability" shall mean a termination of Executive's employment by
the Board because physical or mental incapacity has rendered or will
render Executive unable to perform his duties as Vice President and
Chief Financial Officer for a period of 180 consecutive days. The
determination regarding the existence and expected or actual duration
of such incapacity shall be made by a health professional mutually
acceptable to the Company and Executive. The Company shall provide 30
days' written notice of a termination due to Disability, or payment in
lieu thereof.
(iii) Executive's Option Shares shall vest and
become exercisable in accordance with the terms of the Option
Agreement.
(f) Termination of Employment Due to Death.
(i) Executive's employment shall terminate
automatically in the event of his death.
(ii) In the event that Executive's employment
terminates due to his death, Executive (or Executive's estate) shall
receive the following:
(A) the payments stated in Section 9(a)
above, except that the Base Salary, less applicable deductions
and withholdings, shall be paid through the 90th day following
the date of death;
(B) A pro rata portion of the annual
Target Bonus for the year in which Executive's employment
terminates, less applicable deductions and withholdings,
calculated by multiplying the annual Target Bonus by a
fraction, the numerator of which is the number of days elapsed
in the year of termination plus 90, and the denominator of
which is 365 (except for 2004 when numerator equals the number
of days elapsed since March 22, 2004 plus 90, and the
denominator is 281) payable within 10 days of the Termination
Date; and
(C) Executive's Option Shares shall
vest and become exercisable in accordance with the terms of
the Option Agreement.
(g) No Offset or Mitigation. The payments specified in
this Section 9 shall not be subject to mitigation or offset due to Executive's
employment subsequent to the Employment Term, provided, however, that the
Executive does not breach Sections 14 and 15 hereof.
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10. Excise Tax Gross-up.
(a) Subject to Section 10(b) below, if Executive becomes
entitled to one or more payments (with a "payment" including, without
limitation, the vesting of an option or other non-cash benefit or property),
whether pursuant to the terms of this Agreement or any other plan, arrangement,
or agreement with the Company or any affiliated company (the "Total Payments"),
which are or become subject to the tax imposed by Section 4999 of the Internal
Revenue Code of 1986, as amended (the "Code") (or any similar tax that may
hereafter be imposed) (the "Excise Tax"), the Company shall pay to Executive at
the time specified below an additional amount (the "Gross-up Payment") (which
shall include, without limitation, reimbursement for any penalties and interest
that may accrue in respect of such Excise Tax) such that the net amount retained
by Executive, after reduction for any Excise Tax (including any penalties or
interest thereon) on the Total Payments and any federal, state and local income
or employment tax and Excise Tax on the Gross-up Payment provided for by this
Section 10, but before reduction for any federal, state, or local income or
employment tax on the Total Payments, shall be equal to the sum of (A) the Total
Payments, and (B) an amount equal to the product of any deductions disallowed
for federal, state, or local income tax purposes because of the inclusion of the
Gross-up Payment in Executive's adjusted gross income multiplied by the highest
applicable marginal rate of federal, state, or local income taxation,
respectively, for the calendar year in which the Gross-up Payment is to be made.
For purposes of determining whether any of the Total Payments will be subject to
the Excise Tax and the amount of such Excise Tax:
(i) The Total Payments shall be treated as
"parachute payments" within the meaning of Section 280G(b)(2) of the
Code, and all "excess parachute payments" within the meaning of Section
280G(b)(1) of the Code shall be treated as subject to the Excise Tax,
unless, and except to the extent that, in the written opinion of
independent compensation consultants, counsel or auditors of nationally
recognized standing ("Independent Advisors") selected by the Company
and reasonably acceptable to Executive, the Total Payments (in whole or
in part) do not constitute parachute payments, or such excess parachute
payments (in whole or in part) represent reasonable compensation for
services actually rendered within the meaning of Section 280G(b)(4) of
the Code in excess of the base amount within the meaning of Section
280G(b)(3) of the Code or are otherwise not subject to the Excise Tax;
(ii) The amount of the Total Payments which shall
be treated as subject to the Excise Tax shall be equal to the lesser of
(A) the total amount of the Total Payments or (B) the total amount of
excess parachute payments within the meaning of Section 280G(b)(1) of
the Code (after applying clause (i) above); and
(iii) The value of any non-cash benefits or any
deferred payment or benefit shall be determined by the Independent
Advisors in accordance with the principles of Sections 280G(d)(3) and
(4) of the Code.
For purposes of determining the amount of the Gross-up
Payment, Executive shall be deemed (A) to pay federal income taxes at the
highest marginal rate of federal income taxation for the calendar year in which
the Gross-up Payment is to be made; (B) to pay any applicable state and local
income taxes at the highest marginal rate of taxation for the calendar year in
which the Gross-
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up Payment is to be made, net of the maximum reduction in federal income taxes
which could be obtained from deduction of such state and local taxes if paid in
such year (determined without regard to limitations on deductions based upon the
amount of Executive's adjusted gross income); and (C) to have otherwise
allowable deductions for federal, state, and local income tax purposes at least
equal to those disallowed because of the inclusion of the Gross-up Payment in
Executive's adjusted gross income. In the event that the Excise Tax is
subsequently determined to be less than the amount taken into account hereunder
at the time the Gross-up Payment is made, Executive shall repay to the Company
at the time that the amount of such reduction in Excise Tax is finally
determined (but, if previously paid to the taxing authorities, not prior to the
time the amount of such reduction is refunded to Executive or otherwise realized
as a benefit by Executive) the portion of the Gross-up Payment that would not
have been paid if such Excise Tax had been applied in initially calculating the
Gross-up Payment, plus interest on the amount of such repayment at the rate
provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax
is determined to exceed the amount taken into account hereunder at the time the
Gross-up Payment is made (including by reason of any payment the existence or
amount of which cannot be determined at the time of the Gross-up Payment), the
Company shall make an additional Gross-up Payment in respect of such excess
(plus any interest and penalties payable with respect to such excess) at the
time that the amount of such excess is finally determined.
The Gross-up Payment provided for above shall be paid on the
30th day (or such earlier date as the Excise Tax becomes due and payable to the
taxing authorities) after it has been determined that the Total Payments (or any
portion thereof) are subject to the Excise Tax; provided, however, that if the
amount of such Gross-up Payment or portion thereof cannot be finally determined
on or before such day, the Company shall pay to Executive on such day an
estimate, as determined by the Independent Advisors, of the minimum amount of
such payments and shall pay the remainder of such payments (together with
interest at the rate provided in Section 1274(b)(2)(B) of the Code), as soon as
the amount thereof can be determined. In the event that the amount of the
estimated payments exceeds the amount subsequently determined to have been due,
such excess shall constitute a loan by the Company to Executive, payable on the
fifth day after demand by the Company (together with interest at the rate
provided in Section 1274(b)(2)(B) of the Code). If more than one Gross-up
Payment is made, the amount of each Gross-up Payment shall be computed so as not
to duplicate any prior Gross-up Payment. The Company shall have the right to
control all proceedings with the Internal Revenue Service that may arise in
connection with the determination and assessment of any Excise Tax and, at its
sole option, the Company may pursue or forego any and all administrative
appeals, proceedings, hearings, and conferences with any taxing authority in
respect of such Excise Tax (including any interest or penalties thereon);
provided, however, that the Company's control over any such proceedings shall be
limited to issues with respect to which a Gross-up Payment would be payable
hereunder, and Executive shall be entitled to settle or contest any other issue
raised by the Internal Revenue Service or any other taxing authority. Executive
shall cooperate with the Company in any proceedings relating to the
determination and assessment of any Excise Tax and shall not take any position
or action that would materially increase the amount of any Gross-Up Payment
hereunder.
(b) Modified Cut-Back. Notwithstanding the
foregoing Section 10(a), if it shall be determined that the amount of any
payment due Executive pursuant to Section 10(a) above would result in less than
$20,000 in net after-tax value to Executive, then no Gross-Up payment shall
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be made to Executive and the total payments due Executive pursuant to Section
10(a) shall be reduced to an amount that would not result in the imposition of
any Excise Tax.
11. Indemnification. The Company will hold harmless, indemnify,
and provide a defense to Executive to the fullest extent permitted by Montana
law with respect to any claims, actions, suits, or proceedings, brought against
Executive by reason of, or arising out of, Executive's service as, or the
performance of Executive's duties as, an employee, director, officer, and/or
agent of the Company, provided that such claims, actions, suites, or proceedings
are not found by a court or arbitrator to have arisen out of employee's
intentional misconduct or gross negligence. The Company will pay, and subject to
any legal limitations, advance all costs, expenses, and losses, including
without limitation reasonable attorneys' fees, costs of settlements, and
consequential damages, actually and necessarily incurred by Executive in
connection with the defense of any such claims, actions, suits, or proceedings,
and in connection with any appeal thereof.
12. Directors' and Officers' Insurance. The Company shall use
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 Executive
shall continue to apply following the period in which Executive is serving as
officer or director of the Company for actions or omissions during the period in
which Executive was acting as officer or director.
13. Binding Arbitration.
(a) Executive and the Company each agree, to the extent
permitted by law, to arbitrate before a single neutral arbitrator, in accordance
with the National Rules for the Resolution of Employment Disputes of the
American Arbitration Association ("AAA") and Montana law regarding discovery,
any dispute, claim, or controversy arising out of, relating to, or in connection
with this Agreement, or the interpretation, validity, construction, performance,
breach, or termination thereof, or Executive's employment, recruitment to
employment, or the termination of such employment, whether in tort or contract,
pursuant to current or future statute or regulation, or otherwise, including but
not limited to claims for wrongful termination, breach of contract or
contractual obligation, discrimination, retaliation and harassment based on
race, age, sex, disability, and/or any other basis under Title VII of the Civil
Rights Act of 1964, as amended, and any and all federal, state, and local laws
and regulations, infliction of emotional distress, misrepresentation, fraud, and
claims for wages, commissions, bonuses, severance, stock options, fringe
benefits, and the like, except that the following will not be resolved by
arbitration: any dispute, claim, or controversy regarding workers' compensation
benefits, unemployment insurance benefits, or disability insurance benefits, or
regarding Sections 14 and/or 15 of this Agreement, and/or the validity,
infringement, or enforceability of any trade secret, patent right, copyright,
trademark, or any other intellectual property.
(b) The Company shall pay the cost of the arbitration
filing and hearing fees and the cost of the arbitrator, and any other expense or
cost that is unique to arbitration or that Executive would not be required to
bear if he were free to bring the dispute or claim in court. All reasonable
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costs and expenses (including fees and disbursements of counsel) incurred by
Executive pursuant to this Section 13 shall be paid on behalf of or reimbursed
to Executive promptly by the Company; provided, however, that in the event the
arbitrator(s) determine(s) that any of Executive's litigation assertions or
defenses are determined to be in bad faith or frivolous, no such reimbursements
shall be due Executive, and any such expenses already paid to Executive shall be
immediately returned by Executive to the Company. The arbitration shall take
place in the AAA location that is closest to the Company's corporate offices in
Montana. The arbitrator shall apply Montana law, without reference to rules of
conflicts of law, to the resolution of any dispute. The arbitrator shall issue a
written award that sets forth the essential findings and conclusions on which
the award is based. Judgment on the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. The award shall be subject to
correction, confirmation, or vacation, as provided by Montana law and any
applicable Montana case law setting forth the standard of judicial review of
arbitration awards. Notwithstanding the foregoing, the parties may apply to any
court of competent jurisdiction for preliminary or interim equitable relief, or
to compel arbitration in accordance with this Section 13, without breach of this
Section 13.
(c) Executive and the Company each understand and agree
that the arbitration of any dispute or controversy shall be instead of a hearing
or trial before a court or jury. Executive and the Company each understand that
Executive and the Company are expressly waiving any and all rights to a hearing
or trial before a court or jury regarding any dispute or controversy which they
now have or which they may have in the future. Nothing in this Agreement shall
be interpreted as restricting or prohibiting Executive from filing a charge or
complaint with a federal, state, or local administrative agency charged with
investigating and/or prosecuting such charges or complaints under any applicable
federal, state, or municipal law or regulation.
(d) The terms of this Section 13 shall survive the
expiration or termination for any reason of this Agreement.
14. Non-Competition and Non-Solicitation.
(a) Necessity of Covenants. The Company and Executive
acknowledge that:
(i) The Company's business is highly
competitive;
(ii) The Company maintains Confidential
Information and trade secrets (each described below), as discussed below, all of
which are zealously protected and kept secret by the Company;
(iii) In the course of his employment, Executive
will acquire certain of the Company's Confidential Information, and in the event
of any termination of Executive's employment, the Company would be adversely
affected if such information is used for the purposes of competing with the
Company;
(iv) The Company transacts business throughout
the world; and
(v) For these reasons, both the Company and
Executive further acknowledge and agree that the restrictions contained herein
are reasonable and necessary for the
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protection of their respective legitimate interests and that any violation of
these restrictions would cause substantial injury to the Company.
(b) Covenant Not to Compete. Executive agrees that from
and after the Commencement Date and until the later of (x) one (1) year after
the Termination Date (due to termination for any reason), and (y) the end of the
period during which Executive is receiving severance payments and/or benefits
from the Company under Section 9(c) or 9(d), he will not, without the express
written permission of the Company, which may be given or withheld in the
Company's sole and absolute 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 mining or the processing of metals
or minerals in the United States and throughout the world that competes with the
Company at the time of the termination of the Employment Term. It is understood
and acknowledged by both Executive and the Company that, because the Company
transacts business worldwide, the term of this Section 14(b) shall be enforced
throughout the United States and in any other country in which the Company is
doing business as of the Termination Date.
(c) Covenant Not To Solicit. Executive agrees that from
and after the Commencement Date and until the later of (x) one (1) year after
the Termination Date (due to termination for any reason), and (y) the end of the
period during which Executive is receiving severance payments and/or benefits
from the Company under Section 9(c) or 9(d), he will not, except on behalf of
the Company or with the express written permission of the Company, which may be
given or withheld in the Company's sole discretion, directly or indirectly
solicit, or attempt to solicit (on Executive's own behalf or on behalf of any
other person or entity) the employment or retaining of any employee or
consultant of the Company or any of the Company's affiliates.
(d) Disclosure of Outside Activities. Executive, during
the Employment Term, 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.
(e) Survival. The terms of this Section shall survive the expiration or
termination for any reason of this Agreement.
15. Confidential Information and Trade Secrets.
(a) Nondisclosure of Confidential Information. Executive
has and will acquire certain "Confidential Information" of the Company
throughout the Employment Term. For purposes of this Agreement, "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 that is disclosed to Executive by the Company, including information
conceived, discovered, or developed by Executive. "Confidential Information"
includes, without limitation, 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
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information that is designated by the Company as "Confidential." For purposes of
this Agreement, the term "trade secret" shall include any formula, pattern,
device, or compilation of information which is used in the Company's business,
and which provides to the holder of such trade secret an opportunity to obtain
an advantage over competitors who do not know or use such trade secret.
Executive agrees that he shall not use for his own benefit such
Confidential Information or trade secrets acquired during the Employment Term.
Further, Executive shall not, without the written consent of the Board 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 performance by Executive of his duties, any Confidential
Information or trade secrets obtained by him during the Employment Term.
(b) Return of Confidential Information. Upon any
termination of employment, Executive agrees to deliver any Company property and
any documents, notes, drawings, specifications, computer software, data and
other materials of any nature pertaining to any Confidential Information that
are held by Executive and will not take any of the foregoing, or any
reproduction of any of the foregoing, that is embodied an any tangible medium of
expression, provided that the foregoing shall not prohibit Executive from
retaining his personal phone directories and rolodexes.
(c) Exceptions. The restrictions and obligations in
Section 15(a) shall 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 Executive of his obligations under this Agreement; (ii) is disclosed
to Executive 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 Executive independent of his performance of duties hereunder
without use of or benefit from the Confidential Information; (iv) was in
possession of Executive without obligations of confidentiality prior to receipt
under this Agreement; or (v) is required to be disclosed by law.
(d) Survival. The terms of this Section 15 shall survive
the expiration or termination for any reason of this Agreement.
16. Essential Covenants. The covenants by Executive in Sections 14
and 15 are essential elements of this Agreement and without Executive's
agreement to comply with such covenants; the Company would not have entered into
this Agreement or employed Executive.
17. Injunctive Relief. Executive acknowledges that the injury
suffered as a result of a breach of any provision of this Agreement (including
any provision of Sections 14 and 15) would be irreparable and that an award of
monetary damages to the Company for such a breach would be an inadequate remedy.
Consequently, Executive agrees that the Company will have the right, in addition
to any other rights it may have, to obtain injunctive relief to restrain any
breach or threatened breach or otherwise to specifically enforce any provision
of this Agreement, and the Company will not be required to post bond or other
security in seeking such relief.
18. Assignment. The Company shall have the right to assign this
Agreement to its successors or assigns, and all covenants or agreements
hereunder shall inure to the benefit of and be
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enforceable by or against its successors or assigns. The term "successors" and
"assigns" shall include 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. This Agreement and all rights of Executive hereunder
shall inure to the benefit of, and be enforceable by, Executive's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees, and legatees. The rights, duties, and covenants of
Executive under this Agreement may not be assigned.
19. No Waiver. The failure of 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.
20. Notices. All notices, requests, demands and other
communications called for hereunder shall be in writing and shall be deemed
given if (a) delivered personally or by facsimile, (b) one (1) day after being
sent by Federal Express or a similar commercial overnight service, or (c) three
(3) days after being mailed by registered or certified mail, return receipt
requested, prepaid and addressed to the parties or their successors in interest
at the following addresses, or at such other addresses as the parties may
designate by written notice in the manner aforesaid:
If to the Company: Stillwater Mining Company
XX Xxx 0000
Xxxxxxxx, XX 00000
If to Executive: at the last residential address known by
the Company.
21. Severability. In the event that any provision hereof becomes
or is declared by a court of competent jurisdiction to be illegal, unenforceable
or void, this Agreement shall continue in full force and effect without said
provision.
22. Entire Agreement. This Agreement, together with the Company's
Relocation Policy, and the applicable stock option and stock purchase agreements
and notices of grant referenced herein, represent the entire agreement and
understanding between the Company and Executive concerning Executive's
employment relationship with the Company, and supersede and replace any and all
prior agreements and understandings concerning Executive's employment
relationship with the Company.
23. No Oral Modification, Cancellation or Discharge. This
Agreement may only be amended, canceled or discharged in a writing signed by
Executive and an authorized member of the Board.
24. Withholding. The Company shall be entitled to withhold, or
cause to be withheld, from payment any amount of withholding taxes required by
law with respect to payments made to Executive in connection with his employment
hereunder.
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25. Key-Man Insurance. Executive agrees that the Company may, from
time to time, apply for and take out in its own name and at its own expense,
life, health, accident, or other insurance upon Executive that the Company may
deem necessary or advisable to protect its interests hereunder; and Executive
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
Executive agrees that he shall have no right, title, or interest in or to such
insurance.
26. Attorneys' Fees. Should a dispute arise under this Agreement
following a Change in Control, or should any action or proceeding be commenced
to recover damages as a result of an alleged breach following a Change in
Control of the terms of this Agreement, then the successor to the Company as a
result of the Change in Control shall be required to pay the costs incurred by
Executive in connection therewith, including reasonable attorneys' fees, unless
it is determined that the dispute, action, or proceeding was frivolous or
brought by Executive in bad faith.
27. Governing Law. This Agreement shall be governed by the laws of
the State of Montana without reference to rules relating to conflict of law.
28. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
29. Acknowledgment. Executive acknowledges that he has had the
opportunity to discuss this matter with and obtain advice from his private
attorney, has had sufficient time to, and has carefully read and fully
understands all the provisions of this Agreement, and is knowingly and
voluntarily entering into this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement, in the case of
the Company by its duly authorized officer, as of the day and year first written
above:
STILLWATER MINING COMPANY
By: /s/ Xxxxxxx X. XxXxxxxxxx
----------------------------------------
Name: Xxxxxxx X. XxXxxxxxxx
Title: Chairman and Chief Executive Officer
EXECUTIVE
/s/ Xxxxxxx X. Wing
-------------------------------------------
Xxxxxxx X. Wing
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