STILLWATER MINING COMPANY
Exhibit
10.2
STILLWATER
MINING COMPANY
Name
of Employee: Xxxx X.
Xxxxxxx
Number
of Units: 16,741
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Grant
Date: February 4,
2008
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THIS RESTRICTED
STOCK UNIT
AGREEMENT (the
“Agreement”)
is made by and between STILLWATER MINING COMPANY, a corporation organized and
existing under the laws of the State of Delaware (the “Company”),
and the employee named above (the “Employee”),
as of the date designated above (the “Grant
Date”). This Agreement provides notice of the terms and
conditions applicable to a grant of restricted stock units (“RSUs”)
made under the Company’s 2004 Equity Incentive Plan, as amended May 3, 2007 (the
“Plan”). By
execution below, Employee agrees to be bound by the terms and conditions
described herein and the provisions of the Plan.
1.
Grant of Restricted Stock
Units. As of the Grant Date, the Board of Directors of the
Company (the “Board”)
hereby grants to Employee 16,741 RSUs, each RSU corresponding to one share
of
the Company’s common stock, par value $0.01 per share (the “Common
Stock”). Each RSU constitutes an unsecured promise of the
Company to pay the amounts contemplated herein, and Employee as a holder of
any
RSUs has only the rights of a general unsecured creditor of the
Company.
2.
Vesting Schedule.
Subject to the provisions
of this Agreement, the RSUs shall vest 100% on the
third anniversary of the Grant Date (the “Vesting
Date”). Any RSUs not vested shall be forfeited if Employee’s
employment with the Company terminates prior to the Vesting Date, except as
provided in Section 5 below or as otherwise determined by the Company consistent
with the Plan.
3.
Settlement of
RSUs.
(a)
Unless otherwise deferred in accordance with an Employee’s duly executed
deferral form (to be executed no later than 30 days after the Grant Date),
or
delayed for purposes of complying with Section 409A of the Internal Revenue
Code, as amended from time to time (the “Code”)
Shares corresponding to the number of RSUs shall be delivered to Employee by
the
Company on the Vesting Date, provided that fractional shares (if any) may be
settled by the Company in cash. Any elective deferral shall be
subject to Section 409A of the Code (“Section
409A”), and the terms of the RSU and deferral shall conform to the
requirements thereunder in all respects. If an election to defer does
not meet the requirements of Section 409A, it shall be ineffective hereunder
and
shall be disregarded.
(b)
In the event that the Company declares a dividend on the common stock while
Employee holds RSUs, the Company shall pay to Employee in respect of each RSU
an
amount in cash, Stock, or other property (or in combination), in each case
having a value equal to the fair market value of such dividend on the dividend
payment date (the “Dividend
Equivalents”). Unless otherwise determined by the Board, such
payment will be in cash. Dividend Equivalents relating to ordinary
dividends will be non-forfeitable, and Dividend Equivalents relating to
extraordinary dividends will be forfeitable on the same terms as apply to the
underlying RSUs.
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4.
Termination.
(a)
If Employee’s employment with the Company or any of its Affiliates is terminated
upon Employee’s death or Disability, by the Company without Cause, or by
Employee for Good Reason, all restrictions applicable to any RSUs held by
Employee which have not yet lapsed shall immediately lapse and the shares
corresponding in number to such Vested RSUs shall be delivered to Employee
by
the Company within 10 days of the date of termination of Employee’s employment
(“Termination
Date”).
(b)
Unless otherwise determined by the Board in its sole and absolute discretion,
if
Employee’s employment with the Company or any of its Affiliates is terminated
for any reason other than as specified in Section 4(a) above, all unvested
RSUs
shall be immediately forfeited and any right to receive settlement in shares
for
such RSUs shall be canceled by the Company as of the Termination
Date.
5.
Change in
Control. Provided that the RSUs granted hereunder have not
otherwise been forfeited or cancelled, upon the occurrence of a Change in
Control (as defined in Exhibit 1), all such RSUs shall be considered vested
and
shall be settled in accordance with the terms and conditions of this Agreement,
as specified in Section 4(a) above, subject to compliance with Section 409A,
as
specified in Section 7 below.
6.
No Assignment of
RSUs. Except to the extent otherwise determined by the
Company, no RSUs shall be assignable or otherwise transferable by Employee
other
than by will or by the laws of descent and distribution and, unless otherwise
provided by the Company, during Employee’s life, any elections with respect to
RSUs may be made only by Employee or Employee’s guardian or legal
representative.
7.
Compliance with Code Section
409A. All payments of shares provided for in this Agreement
shall be subject to this Section 7. Notwithstanding anything contained in this
Agreement to the contrary, to the extent that the Company determines, in its
sole discretion, that any delivery of shares with respect to Vested RSUs would
be subject to the additional “excise” tax imposed under Section 409A(a)(1)(B) of
the Code or a successor or comparable provision, the delivery of such shares
shall be delayed until the earlier of (i) the date that is six (6) months
following the termination of Employee’s employment with the Company (“6-Month
Waiting
Period”), or (ii) the date of Employee’s death (such date referred to
herein as the “Distribution
Date”), provided
that, if at
such time Employee is a “specified
employee” of the Company (as defined in Treasury Regulation Section
1.409A-1(i)) and if amounts payable under this Agreement are in connection
with
an “involuntary
separation from service” (as defined in Treasury Regulation Section
1.409A-1(m)), Employee shall receive shares during the 6-Month Waiting Period,
equal to the lesser of (x) the number of shares corresponding to Vested RSUs
deliverable to Employee hereunder, or (y) two times the compensation limit
then
in effect under Code Section 401(a)(17) for the calendar year in which the
Termination Date occurs (with any shares otherwise deliverable but delayed
pursuant to this section to be delivered to Employee immediately upon expiration
of the 6-Month Waiting Period. Shares delivered in settlement of RSUs
shall not be deemed to be a “deferral of compensation” subject to Section 409A
to the extent such delivery satisfies the exceptions in Treasury Regulation
Sections 1.409A-1(b)(4)(“short-term
deferrals”) and (b)(9) (“separation
pay
plans”, including the exception under subparagraph (iii)) and other
applicable provisions of Treasury Regulation Section 1.409A-1 through
A-6.
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8.
Adjustment. Prior
to settlement, the aggregate number of RSUs granted hereunder shall be subject
to adjustment due to any stock split, stock dividend or other form of
recapitalization by the Company.
9.
Amendment and
Modification. The terms and conditions set forth herein may be
amended only in writing signed by both Employee and an authorized member of
the
Company.
10.
Successors and
Assigns. This Agreement shall be binding upon and shall inure
to the benefit of Employee and the Company, including their respective heirs,
executors, administrators, successors and assigns.
11.
Employment
Rights. Neither this Agreement nor the grant of RSUs hereunder
shall be deemed to confer on Employee any right to continue in the employ of
the
Company or any Affiliate or to interfere, in any manner, with the right of
the
Company (or an Affiliate) to terminate employment, whether with or without
Cause, in its sole discretion, subject to the terms of any separate agreement
between Employee and the Company.
12.
Plan and Available
Information. The RSUs granted hereunder shall be subject to
such additional terms and conditions as may be imposed under the terms of the
Plan, a copy of which has been furnished with this grant. If any
conflict exists between this Agreement and the Plan, the Plan shall
prevail.
13.
Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
14.
Governing
Law. The validity, construction, and effect of all rules and
regulations applicable to this award shall be determined in accordance with
the
laws of the State of Delaware and applicable Federal law.
15.
Withholding Tax.
The Company and any
Affiliate may deduct from any payment to be made to Employee
any amount that federal, state, local or foreign tax law requires to be withheld
with respect to the grant of RSUs or delivery of shares of the Company’s common
stock in settlement of such obligation hereunder. At the Board’s
election, the Company may withhold from the number of shares of common stock
to
be delivered in satisfaction of vested RSUs a number of whole shares up to
but
not exceeding that number which has a fair market value nearest but not
exceeding the amount of taxes required to be withheld with respect to such
expiration of restrictions.
STILLWATER
MINING COMPANY
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By:
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/s/
Xxxxxxx X. XxXxxxxxxx
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Xxxxxxx
X. XxXxxxxxxx
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Chairman
and Chief Executive Officer
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Date:
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2/6/2008
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EMPLOYEE
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/s/
Xxxx X. Xxxxxxx
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Xxxx
X. Xxxxxxx
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Date
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Exhibit
1
Definitions
“Affiliate”
means
any person,
partnership, joint venture, corporation or other form of enterprise, domestic
or
foreign, including but not limited to subsidiaries, that directly or indirectly,
control, are controlled by, or are under common control with a
party.
“Cause”
means a termination of
Employee’s employment by the Company based upon a determination that any one or
more of the following has occurred: (1) misfeasance or nonfeasance of duty
by Employee that which was intended to or does injure the reputation of Company
or its business or relationships; (2) conviction of, or plea of guilty or nolo contendere by Employee
to, any felony or crime involving moral turpitude; (3) Employee’s willful and
continued failure to substantially perform his duties under the terms of his
employment (except by reason of physical or mental incapacity) after written
notice from the Board and 15 days to cure such failure; (4) dishonesty by
Employee in performance of his duties under the terms of his employment; or
(5)
willful and material breach of the restrictive covenants contained in this
Agreement; provided
however, that definitions (3) through (5) shall not provide Cause for
termination if such termination occurs within two (2) years following a Change
in Control. A termination of Employee’s employment by the Company for
any other reason will be a termination without “Cause.”
“Change
in Control” means 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 Affiliate
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
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(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 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.
“Disability”
means a
termination of Employee’s employment by the Board because physical or mental
incapacity has rendered or will render Employee unable to perform his duties
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
Employee. The Company shall provide 30 days written notice of a
termination due to Disability, or payment in lieu thereof.
“Good
Reason” means a
termination of Employee's employment at his initiative following the occurrence,
without Employee'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 Employee, in Employee's positions,
titles, or offices, or status, rank, nature of responsibilities, or authority
within the Company, or a removal of Employee from or any failure to elect or
re-elect or, as the case may be, nominate Employee to any such positions or
offices, including as a member of the Board;
(2)
the assignment to Employee of any duties that are inconsistent with his status
in his then current position or other positions held at the relevant
time;
(3)
a decrease in Employee’s annual Base Salary or Target Bonus award opportunity
(other than an across-the-board reduction on a percentage basis for all other
similarly situated employees);
(4)
a material reduction in the aggregate benefits for which Employee is eligible
under the Company’s benefit plans (other than an across-the-board reduction in
the aggregate benefits for all other similarly situated employees);
(5)
any other failure by the Company to perform any material obligation under,
or
breach by the Company of any material provision of, the terms of Employee’s
employment that is not cured within 10 business days of receipt of written
notice from Employee;
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(6)
upon relocation of Employee outside of the State of Montana;
(7)
any failure to secure the agreement of any successor corporation or other entity
to the Company to fully assume the Company's obligations under any written
employment agreement between Employee and the Company; or
(8)
the Company and its successor(s) shall discontinue the business of the
Company.
“Target
Bonus” shall have the
meaning ascribed to it in Employee’s employment agreement or as otherwise
determined by the Board.
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