AMENDMENT
Exhibit 10.53
AMENDMENT
This
Agreement is entered into as of November 3, 2010, by and between Stillwater Mining
Company, a Delaware corporation (the “Company”), and Xxxxxxx XxXxxxxxxx (the “Executive”).
WHEREAS, the Company and the Executive previously entered into an Employment Agreement, dated
July 17, 2001 (the “Agreement”), which Agreement may be amended by a written instrument executed by
both parties; and
WHEREAS, the Company and the Executive desire to amend the Agreement to comply in all respects
with the provisions of Section 409A of the Internal Revenue Code and applicable regulations
thereunder (the “Code”);
NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein, and
intending to be legally bound hereby, the parties agree to amend the Agreement as follows,
effective immediately; provided, however, that any provision below required to apply as of a date
prior to such date in order for the Agreement to comply with Code Section 409A shall be effective
as of such earlier date to the extent permitted by Code Section 409A.
| 1. Section 4.2 of the Agreement is hereby amended by adding the following to the end thereof: |
| “The annual bonus shall be paid no later than March 15th of the year following the year to which the performance goals relate.” |
2. A new Section 31 is added to the Agreement, relating to Code Section 409A compliance, as
follows.
“31. Code Section 409A. The intent of the parties is that payments and benefits under
this Agreement (including all attachments, exhibits and annexes) comply with Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”), to the extent subject thereto, and,
accordingly, to the maximum extent permitted, this Agreement shall be interpreted and be
administered to be in compliance therewith. Notwithstanding anything contained herein to the
contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under
Code Section 409A, Executive shall not be considered to have terminated employment with the Company
for purposes of this agreement, and no payment shall be due to Executive under this Agreement,
until Executive would be considered to have incurred a “separation from service” from the Company
within the meaning of Code Section 409A. Any payments described in this Agreement that are due
within the “short-term deferral period” as defined in Code Section 409A shall not be treated as
deferred compensation unless applicable law requires otherwise. Each amount to be paid or benefit
to be provided to Executive pursuant to this Agreement that constitutes deferred compensation
subject to Code Section 409A shall be construed as a separate identified payment for purposes of
Code Section 409A. Notwithstanding anything to the contrary in this agreement, to the extent that
any payments to be made to Executive upon his or her separation from service would result in the
imposition of any individual penalty tax imposed
under Code Section 409A, the payment shall instead be made on the first business day after the
earlier of (i) the date that is six (6) months following such separation from service and (ii)
Executive’s death. Notwithstanding anything to the contrary in this Agreement, Change in Control
under the Agreement shall only be deemed to have occurred if the Change in Control constitutes a
change in the ownership or effective control of the Company, or a change in ownership of a
substantial portion of the assets of the Company within the meaning of Code Section 409A. To the
extent that the Agreement provides for the reimbursement of specified expenses incurred by the
Executive, such reimbursement shall be made in accordance with the provisions of the Agreement, but
in no event later than the last day of the Executive’s taxable year following the taxable year in
which the expense was incurred. The amount of expenses eligible for reimbursement or in-kind
benefits provided by the Company in any taxable year of the Executive shall not affect the amount
of expenses or in-kind benefits to be reimbursed or provided in any other year (except in the case
of maximum benefits to be provided under a medical reimbursement arrangement, if applicable). In
the case of a tax gross-up payment, such payment shall be made in accordance with the provisions of
the Agreement, but in no event later than the last day of the Executive’s taxable year following
the taxable year in which the tax was remitted by the Executive.”
3. Sections 10(c)((i)(D) and 10(d)(iii) of the Agreement are hereby amended by adding the
following to the end thereof:
“No continuation of coverage shall be provided to the extent it results in adverse tax
consequences to the Company under Section 4980D of the Code.”
IN WITNESS WHEREOF, the parties have executed this Amendment on the 3rd day of November, 2010.
| STILLWATER MINING COMPANY |
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| By: | /s/ Xxxx X. Xxxxx | |||
| Xxxx X. Xxxxx | ||||
| Its: Executive Vice President | ||||
| EXECUTIVE |
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/s/ Xxxxxxx
X. XxXxxxxxxx |
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| Xxxxxxx X. XxXxxxxxxx | ||||
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