AMENDMENT
Exhibit 10.56
AMENDMENT
This
Agreement is entered into as of November 3, 2010, by and between
Stillwater Mining Company, a
Delaware corporation (the “Company”), and Xxxxxxx Xxxxxxxx (the “Executive”).
WHEREAS, the Company and the Executive previously entered into an Employment Agreement, dated May
8, 2002 (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 Article 19 is added to the Agreement, relating to Code Section 409A compliance,
as follows. Article 19 of the Agreement is renumbered to Article 20.
“ARTICLE 19. 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. Section 5.6 (a) (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 |
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| EXECUTIVE |
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/s/
Xxxxxxx X. Xxxxxxxx |
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| Xxxxxxx X. Xxxxxxxx | ||||
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