Exhibit 10.1
STILLWATER MINING COMPANY
2005 NON-EMPLOYEE DIRECTORS' DEFERRAL PLAN
1. PURPOSE OF THE PLAN.
The purpose of this 2005 Non-Employee Directors' Deferral Plan (the
"Plan") of Stillwater Mining Company (the "Company") is to provide an additional
compensation feature for non-employee directors to help attract and retain them
in service to the Company and to provide a convenient means for directors to
increase their proprietary interest in the Company. The Plan provides an
opportunity for non-employee directors to elect to defer cash compensation in
the form of Deferred Shares or Deferred Cash, and to defer settlement of
Restricted Stock Units.
2. DEFINITIONS.
The following capitalized terms used in the Plan have the meanings set
forth in this Section (other terms are defined in Section 1 and elsewhere in
this Plan):
(a) Account: The account established and maintained by the Company for
a Participant to track deferrals and earnings under the Plan. An Account may
include one or more subaccounts, including a Deferred Share Account and a
Deferred Cash Account. The Account and subaccounts, and Deferred Shares and
Deferred Cash credited thereto, will be maintained solely as bookkeeping entries
by the Company to evidence unfunded obligations of the Company.
(b) Board: The Board of Directors of the Company.
(c) Change in Control: A change in ownership or effective control as
defined under Code Section 409A(a)(2)(v).
(d) Committee: The Corporate Governance and Nominating Committee of the
Board.
(e) Code: The U.S. Internal Revenue Code of 1986, as amended, including
regulations thereunder and successor provisions thereto.
(f) Deferred Cash: A right credited under Section 6(c) constituting a
contractual commitment of the Company to pay to the Participant, at a future
date, cash in settlement of the right, subject to the terms of the Plan.
(g) Deferred Share: A right credited under Section 6(b) constituting a
contractual commitment of the Company to deliver to the Participant, at a future
date, one Share in settlement of the right, subject to the terms of the Plan.
(h) Dividend Equivalents: An amount equal to the value of dividends
paid on an outstanding Share, which amount will be paid or credited on Deferred
Shares in accordance with Section 7(a).
(i) Fair Market Value: As of any given day, the fair market value of a
Share determined in good faith in the same manner as "fair market value" is then
determined under the Company's 2004 Equity Incentive Plan.
(j) Participant: A person who is entitled to defer compensation under
the Plan or who previously deferred compensation under the Plan which has not
been distributed.
(k) Restricted Stock Units: Awards designated as Restricted Stock Units
granted to non-employee directors under the 2004 Equity Incentive Plan or any
successor to such plan.
(l) Share: A share of Common Stock, $0.01 par value, of the Company or
any securities or rights into which such Share may be changed by reason of any
transaction or event of the type described in Section 9.
3. SHARES SUBJECT TO THE PLAN.
Shares shall be issued or delivered under this Plan as required to
settle Deferred Shares. Shares shall be reserved for this purpose at the date of
crediting of Deferred Shares hereunder. The foregoing notwithstanding, Shares
issued or delivered in settlement of Deferred Shares resulting from deferral of
Restricted Stock Units and Deferred Shares resulting from a matching grant under
Section 6(b) will be drawn from and count against the shares reserved and
available under the 2004 Equity Incentive Plan (or successor to such plan) in
accordance with the terms of such plan. If any Deferred Shares are to be
credited at a time insufficient Shares remain available under the Company's
Certificate of Incorporation and as treasury shares, Deferred Cash shall be
credited to the Participant's Account rather than Deferred Shares. In such case,
the Committee may permit the reallocation of such Deferred Cash into Deferred
Shares on a one-time basis at such time as Shares have become available. Shares
delivered in settlement of Deferred Shares may be newly issued shares or
treasury shares, as determined by the Company's General Counsel.
4. ADMINISTRATION.
The Plan and its administration shall be subject to oversight by the
Committee. The day-to-day administration of the Plan shall be the responsibility
of an administrative committee (the "Administrator") which, unless otherwise
determined by the Committee, shall consist of the Chief Financial Officer and
the Vice President, Human Relations, and General Counsel. Subject to the
oversight by the Committee, the Administrator is authorized to interpret the
Plan, to establish, amend and rescind any rules and regulations relating to the
Plan, and to make any other determinations that it deems necessary or desirable
for the administration of the Plan, except that determinations that would result
in significant additional cost to the Plan or significant additional benefits to
Participants must be approved by the Committee. Except as provided in this
Section 4, any decision of the Committee or Administrator in the interpretation
and administration of the Plan shall be final, conclusive and binding on the
Company, on Participants and their beneficiaries or successors, and on all other
parties.
5. ELIGIBILITY.
A non-employee director who is eligible to receive fees for service on
the Board shall be eligible to participate under this Plan.
6. DEFERRAL OF CASH FEES AND RESTRICTED STOCK UNITS.
An eligible director may elect to defer cash compensation otherwise
payable for service to the Company in his or her capacity as a director and,
upon such deferral, to have Deferred Shares or Deferred Cash credited to his or
her Account. Cash fees for this purpose include retainer fees and similar
payments, any meeting fees for service as a member of the Board or a Board
committee, fees for service in a leadership capacity with respect to the Board
or a Board committee, and any other fees for such service (but not
reimbursements for expenses). An eligible non-employee director may elect to
receive Deferred Shares upon settlement of Restricted Stock Units and, upon such
deferral, to have Deferred Shares credited to his or her Account. Deferrals
under this Section 6 will be subject to the following terms and conditions and
to such other terms and conditions, not inconsistent herewith, as the Board or
Committee shall determine:
(a) Elections. Each director who elects to defer fees payable in a
given calendar year or to defer Restricted Stock Units that may be granted in a
given calendar year must file an irrevocable written election with the Company
no later than the December 31 of the preceding year; provided, however, that (i)
for deferrals in 2005, an election may be filed not later than 30 days after the
effective date of the Plan, which election shall apply only to fees for services
performed or Restricted Stock Units granted after the
date of filing of the election, and (ii) any newly elected or appointed director
may file an election for any year not later than 30 days after the date such
person first became a director, which election shall apply only to fees for
services performed or Restricted Stock Units granted after the date of filing of
the election. An election under this Section 6(a) must specify the following:
(i) With respect to fees, a percentage, not to exceed 100% of the
Participant's fees, or a stated dollar amount of fees to be
deferred under the Plan in a specified year.
(ii) With respect to Restricted Stock Units, a percentage, not to
exceed 100%, or a fixed number of Restricted Stock Units to be
deferred under the Plan in a specified year.
(iii) The date upon which the Participant's Account (or portion
thereof) resulting from the deferrals in the specified year
will be settled, and whether such settlement will be in a lump
sum or installments (up to ten).
The Company also will provide a means for the Participant to elect the notional
investments for deferrals into Deferred Cash. The Company may specify terms and
limitations on elections intended to ensure compliance with applicable laws and
regulations, including terms that will ensure that deferrals will not result in
constructive receipt of income or tax penalties under Code Section 409A. In the
event that directors' fees or grant of Restricted Stock Units increases during
any year, a Participant's election as to a percentage to be deferred in that
year will apply also to the amount of such increase.
(b) Deferral of Fees in the Form of Deferred Shares. If a
Participant elects to defer fees and receive Deferred Shares, the Company will
credit to the Participant's Account a number of Deferred Shares determined by
dividing the amount of cash fees deferred during the preceding calendar quarter
by the Fair Market Value of a Share on the last day that the stock traded before
the end of the calendar quarter; provided, however, that the Administrator may
vary the timing of the conversion of deferred amounts into Deferred Shares to
minimize administrative burdens under the Plan so long as amounts deferred are
converted into Deferred Shares no later than 120 days after the date of deferral
of such amounts. Upon receiving Deferred Shares, a Participant will be credited
additional "matching" Deferred Shares in the amount of 20% of the Deferred
Shares determined under the preceding sentence. The Administrator may determine
an appropriate method of accounting for a fractional share that may result upon
each such conversion (for example, through crediting fractional shares to the
Account, rounding up to whole shares, or carrying forward unused deferral
amounts to a subsequent conversion date).
(c) Deferral of Fees in the Form of Deferred Cash. If a
Participant elects to defer fees and receive Deferred Cash, the Company will
credit to the Participant's Account an amount of Deferred Cash equal to the
amount of cash fees deferred. Such crediting shall be as of the date the
compensation would otherwise have been payable to the Participant but for his or
her election to defer.
(d) Vesting. The interest of each Participant in Deferred Shares
and Deferred Cash credited to his or her Account shall be at all times fully
vested and non-forfeitable, except that any Restricted Stock Units which have
not settled will result in forfeiture, unless otherwise provided under the terms
of the Restricted Stock Units.
(e) Other Terms of Deferrals. Subject to other provisions of the
Plan, the Committee may specify all other terms relating to Deferred Shares,
Deferred Cash and the Participant's Account.
7. Terms and Conditions of Deferrals and Settlements.
(a) Payment or Crediting of Dividend Equivalents. Whenever
dividends are paid or distributions made with respect to Shares, a Participant
to whom Deferred Shares are then credited hereunder shall be entitled to
Dividend Equivalents in an amount equal to the cash amount of the dividend paid
or fair value of property other than Shares distributed on a single Share
multiplied by the number of Deferred Shares (including any fractional Deferred
Share) credited to his or her Account as of the record date for such dividend or
distribution. Dividend Equivalents will be credited as a cash amount to the
account maintained for the Participant and converted into additional Deferred
Shares at the conversion
date under Section 6(a) that coincides with or next follows the dividend payment
date. In the alternative, the Company may elect to credit Dividend Equivalents
as Deferred Cash (i.e., not deem them reinvested in additional Deferred Shares)
or vary the timing of any conversion of Dividend Equivalents into additional
Deferred Shares in order minimize the administrative burden of reporting
directors' transactions on Form 4 under Section 16 of the U.S. Securities
Exchange Act of 1934 or otherwise to promote the purposes and administrative
efficiency of the Plan. In the case of a dividend of Shares, an equal number of
Deferred Shares will be credited to the Participant's Account at the dividend
payment date on each Deferred Share credited to such Account at the record date.
Any Deferred Shares or Deferred Cash resulting under this Section 7(a) shall be
subject to the same terms and date of settlement in all cases as the Deferred
Shares to which the Dividend Equivalents related. In the case of Deferred Shares
relating to Restricted Stock Units, the method and terms of crediting Dividend
Equivalents may be modified to conform to the method and terms of such crediting
under the Plan or award agreement governing the Restricted Stock Units.
(b) Notional Investments of Deferred Cash. Amounts of hypothetical
income and appreciation and depreciation in value of Deferred Cash will be
credited and debited to, or otherwise reflected in, the Participant's Account
from time to time.
(i) Subject to the provisions of Section 6 and 7, Deferred Cash
shall be deemed to be invested, at the Participant's
direction, in one or more notional investment vehicles (i.e.,
hypothetical investments) from a list of permitted notional
investments specified from time to time by the Administrator.
Subject to any rules and restrictions as the Administrator may
specify, a Participant may reallocate Deferred Cash out of one
notional investment vehicle and into another. Amounts
allocated out of one notional investment and into another
shall be based on the fair market value of such notional
investment at the reallocation date (or as near as practicable
to the reallocation date).
(ii) The Administrator may change or discontinue any notional
investment vehicle available under the Plan in its discretion;
provided, however, that each affected Participant shall be
given the opportunity to reallocate his or her Deferred Cash
previously deemed invested in a discontinued notional
investment among the other notional investment vehicles.
(c) No Reallocation of Deferred Shares. Amounts credited as
Deferred Shares to a Participant's Account may not be reallocated or deemed
reinvested in any other notional investment vehicle, but shall remain as
Deferred Shares until such time as the Account is distributed in accordance with
Section 7(e).
(d) Redeferral. A Participant will be permitted to elect to
further defer the settlement of the balance of his or her Account to the extent
permitted and in accordance with the requirements of Code Section 409A(a)(4)(C),
including the requirement that (i) a redeferral election may not take effect
until at least 12 months after such election is filed with the Company, (ii) an
election to further defer a distribution (other than a distribution upon death,
disability or an unforeseeable emergency) must result in the first distribution
subject to the election being made at least five years after the previously
elected date of distribution, and (iii) any redeferral election affecting a
distribution at a fixed date must be filed with the Company at least 12 months
before the first scheduled payment under the previous fixed date distribution
election.
(e) Form of Distributions. The Company will distribute a
Participant's Account, and discharge all of its obligations to pay deferred
compensation under the Plan with respect to such Account, as follows:
(i) With respect to a Deferred Cash balance, payment of cash;
provided, however, that if the Company owns liquid assets that
match a Participant's notional investment in the Account at
the time of distribution, the Administrator may authorize the
distribution of those assets so long as such distribution
represents a payment of value to the Participant comparable to
cash and does not otherwise result in adverse tax or other
consequences to the Participant;
(ii) with respect to Deferred Shares, by delivery of Shares for
each Deferred Share then being distributed.
(f) Timing of Distributions. Except to the extent distribution
alternatives may be limited under applicable law or upon a determination by the
Administrator, distributions of a Participant's Account will be made in a single
lump sum or in annual installments the latest of which is not more than ten
years after Participation's termination of service as a director at, or
commencing at, either (i) a fixed date elected by the Participant, (ii) a date
fixed in relation to the termination of the Participant's service as a director
of the Company, (iii) at a date fixed in relation to a Change in Control, (iv)
upon the Participant's death, or (v) in connection with an unforeseeable
emergency under Section 7(g). If installments have been elected but the
Participant's Account balance is less than $10,000 in value at the date of the
first installment, the Account will instead be paid as a single lump sum.
(g) Unforeseeable Emergency. In the event a Participant has an
unforeseeable emergency, as defined under Code Section 409A, the Participant
will be permitted to receive an unscheduled distribution of his Account, to the
extent permitted under Section 409A.
8. COMPLIANCE WITH CODE SECTION 409A.
Other provisions of this Plan notwithstanding, deferrals under this
Plan shall comply with the requirements under Code Section 409A and, in
accordance with U.S. federal income tax laws and Treasury Regulations (including
proposed regulations) as presently in effect or hereafter implemented, (i) if
the timing of any distribution under this Plan would result in a Participant's
constructive receipt of income or tax penalties prior to such distribution, the
distribution will be the earliest date after the specified payment date that
distribution can be effected without resulting in such constructive receipt;
(ii) the Company shall have no authority to accelerate any payment hereunder
except as permitted under Section 409A and regulations thereunder; and (iii) any
rights of the Participant or retained authority of the Company with respect to
deferrals hereunder shall be automatically modified and limited to the extent
necessary so that the Participant will not be deemed to be in constructive
receipt of income relating to the deferrals prior to the payment and so that the
Participant shall not be subject to any penalty under Section 409A.
9. ADJUSTMENTS.
The Board or Committee shall adjust the number of Deferred Shares
credited to each Participant and the kind of Shares deliverable in settlement
thereof as determined in good faith in its sole discretion in order to prevent
dilution or enlargement of the rights of Participants that otherwise would
result from any stock dividend, extraordinary dividend of cash or other
property, stock split, reverse stock split, combination of shares,
recapitalization or other change in the capital structure of the Company,
merger, consolidation, spin-off, reorganization, partial or complete
liquidation, issuance of rights or warrants to purchase securities or any other
corporate transaction or event having an effect similar to any of the foregoing
(in each case taking into account any Dividend Equivalents credited to a
Participant in connection with such transaction). The Board or Committee retains
discretion under the Plan to provide for alternative treatment of fractional
Deferred Shares, in order to promote efficient administration of the Plan.
10. INVESTMENT RISK OF NOTIONAL INVESTMENTS.
The amount distributable in settlement of a Participant's Account will
equal the value of the Account (or distributable portion thereof) at the time of
distribution. The value of an Account will vary over time based on the changes
in value and investment returns of the notional investments in which the Account
balance is deemed invested. The Company will not guarantee the value of the
Account, and thus the amount distributable from the Account may be less than the
amounts originally deferred. The Plan permits the Participant to freely choose
the amount and timing of the deferrals, whether cash deferrals will be deemed
invested in Deferred Shares or Deferred Cash, and the notional investments for
portions of deferrals in the form of Deferred Cash. The Company, its
subsidiaries and affiliates, and its and their directors, officers,
stockholders, employees and agents, have not and will not advise a Participant
with
respect to whether or how much to defer under the Plan, whether to defer as
Deferred Shares or Deferred Cash, and whether Deferred Cash should be deemed
invested in any particular notional investment. A Participant will bear the full
risk with respect to these decisions and with respect to any decline in the
value of Deferred Shares or notional investments relating to Deferred Cash and
any failure of these investments to appreciate at a rate deemed satisfactory by
the Participant. The Participant will be solely responsible for determining the
suitability of such notional investments. The Company recommends that each
Participant consult with his or her own investment advisors regarding investment
decisions with respect to the Account.
11. GENERAL PROVISIONS.
(a) Successors and Assigns. All obligations of the Company under
the Plan shall be binding on any successor of the Company. The Plan shall be
binding on all successors and assigns of a Participant, including without
limitation, the estate of a Participant and the executor, administrator or
trustee of such estate, or any receiver or trustee in bankruptcy or
representative of the Participant's creditors, or any designated beneficiary.
(b) Amendments and Termination. The Plan may be amended from time
to time by the Board or by the Committee thereof; provided, however, that the
Committee may not amend the Plan without Board approval if such amendment would
broaden eligibility, materially increase benefits to Participants or the cost of
the Plan to the Company, or require shareholder approval under applicable law or
stock exchange rules. The Committee may amend any agreement or otherwise take
action that would affect a Participant's Account or rights hereunder, provided
that no such amendment or action may materially adversely affect a Participant's
rights without the consent of the Participant.
(c) Nontransferability of Awards. Rights of a Participant relating
to his or her Account shall not be transferable or assignable by the Participant
otherwise than by will or the laws of descent and distribution, or in accordance
with a beneficiary designation in effect at the time of the Participant's death.
(d) Nonexclusivity of the Plan. The adoption of the Plan by the
Board shall not be construed as creating any limitations on the power of the
Board or Committee to adopt such other compensatory arrangements as it may deem
desirable.
(e) No Right to Continued Service. The Plan shall not confer upon
any Participant any right with respect to continuance as a director or otherwise
in service to the Company, nor shall it interfere in any way with any right the
Company would otherwise have to terminate a Participant's service at any time.
(f) Legal Compliance. The Company shall have no obligation to
settle any Participant's Account until all legal and contractual obligations of
the Company relating to establishment of the Plan and such settlement shall have
been complied with in full. In addition, the Company shall impose such
restrictions on Shares delivered to a Participant hereunder and any other
interest under the Plan constituting a security as it may deem advisable in
order to comply with the Securities Act of 1933, as amended, the requirements of
the New York Stock Exchange or any other stock exchange or automated quotation
system upon which the Shares are then listed or quoted, any provision of the
Company's Certificate of Incorporation or By-laws, or any other law, regulation,
or binding contract to which the Company is a party.
(g) Choice of Law. This Plan and all related agreements and
elections shall be construed in accordance with and governed by the laws of the
Montana, without regard to principles of conflict of laws, and applicable
federal law.
(h) Effectiveness of the Plan and Plan Termination. The Plan shall
become effective as of May 3, 2005. The Plan will terminate at such time as may
be determined by the Board.