Second Amended and Restated
Employment Agreement
This
Second Amended and Restated Employment Agreement (this
“Agreement”) is made this 31st day of December, 2008,
between Coeur d’Alene Mines Corporation
(“Company”) and Dennis E. Wheeler
(“Wheeler”).
WITNESSETH:
In
consideration of the mutual promises and covenants herein contained
to be kept and performed by the parties hereto, the parties agree
as follows:
1.
Employment . The Company has heretofore, and hereby does,
employ Wheeler as Chairman, President and Chief Executive Officer
of Company, and Wheeler accepts such employment, on the terms and
conditions of this Agreement.
2.
Term Of Employment . The term of Wheeler’s employment
under this Agreement commenced on June 1, 2002 and shall continue,
unless terminated pursuant to Sections 8 or 9, until the 31st
day of December, 2010 (the “Term”). The Term shall
automatically terminate upon any termination of Wheeler’s
employment pursuant to Sections 8 or 9 (such date the
“Date of Termination”).
3.
Compensation and Benefits . During the Term, Wheeler shall
be entitled to the following:
(a)
Effective January 1, 2008, a base salary of $587,633 annually (the
“Base Salary”), payable in accordance with the
Company’s standard payroll practices as in effect from time
to time, subject to review during the Term by the Compensation
Committee (the “Committee”) of the Board of Directors
of the Company (the “Board”), and any higher salary to
become the Base Salary for the purposes of this
provision;
(b)
Participation in the Company’s Annual Incentive Plan (or any
successor thereto), with a target bonus opportunity determined each
year during the Term by the Committee;
(c)
Participation in such other compensation and benefits that may be
made available by the Company in the discretion of the Board or the
Committee, presently consisting of the Company’s 2003
Long-Term Incentive Plan (or any successor thereto) and the
Company’s Defined Contribution and 401(k) Retirement Plan (or
any successor thereto), it being understood that Wheeler shall be a
participant in all compensation and benefit programs, including
welfare benefit plans, which exist for the executive staff of the
Company; and
(d)
In addition to Wheeler’s participation in any retirement plan
provided to the Company’s executive staff, Company shall
provide Wheeler with a supplemental retirement plan designed to
afford reimbursement for tax-qualified retirement benefits lost due
to ERISA limitations.
(e)
Reimbursement each year from the Company for an annual physical
performed by Dr. Howard Maron of Seattle, Washington or such other
physician as Wheeler may choose in his sole discretion, such
reimbursements to be paid no later than December 31 of the year
following the year in which the expense is incurred.
4.
Duties . During the Term Wheeler shall be employed as the
Chief Executive Officer of the Company. Wheeler’s powers,
duties, rights and responsibilities shall be those described in the
by-laws of the Company for the President and Chief Executive
Officer and/or as determined by the Board. During the Term, at the
Board’s request, Wheeler shall also serve the Company and/or
its subsidiaries in other offices and capacities in addition to the
foregoing, without payment of any additional
remuneration.
Wheeler’s
services shall be rendered, primarily, in the Company’s
offices in Coeur d’Alene, and he shall not be required,
without his consent, to move his residence, or to move the
executive offices, outside of the City of Coeur d’
Alene.
Wheeler
shall devote his best efforts and substantially all of his time
during normal business hours to advance the interests of the
Company. He shall not engage in business activity in competition
with the Company. He may, however, with prior consent of the Board,
serve on the board of directors of other companies which are not in
competition with the Company.
5.
Expenses . Wheeler shall be entitled, at the end of each
month during the Term, to reimbursement for his entertainment,
travel, food, lodging, telephone and miscellaneous expenses
incurred in connection with the performance of his duties, in each
case, in accordance with and subject to the Company’s expense
reimbursement policy as in effect from time to time.
6.
Vacations . Wheeler shall be entitled to four weeks of
vacation during each calendar year of the Term, during which the
compensation provided for herein shall be paid in full in
accordance with the Company’s vacation policy as applicable
to the Company’s executive staff. The vacation time shall be
scheduled at the mutual convenience of the Company and
Wheeler.
7.
Disability . In the event Wheeler is unable to perform his
services by reason of disability for a period of more than 90
continuous days, the salary, bonuses and incentive compensation
which would otherwise be paid to him during the continued period or
incapacity will be reduced by 50%. Upon return to full service such
compensation will be restored. For the purpose of this Agreement,
“disability” means the inability or incapacity due to
physical or mental illness or injury to perform Wheeler’s
duties.
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8.
Employment Terminations . The Term and Wheeler’s
employment hereunder may be terminated by either party at any time
and for any or no reason; provided that, except as set forth in
this Section 8, each party will be required to give the other at
least six months advance written notice of any termination of
employment. Notwithstanding the foregoing, the Company may, in its
sole discretion, waive the six-month notice period accelerate
Wheeler’s Date of Termination; however, Wheeler shall be
entitled to receive all elements of compensation described in
Section 3 for the full six-month notice period, subject to the
eligibility and participation requirements of any qualified
retirement plan, but in no event shall such acceleration be deemed
a termination without Cause. Notwithstanding any other provision of
this Agreement, the provisions of this Section 8 shall exclusively
govern Wheeler’s rights upon termination of employment with
the Company.
(a)
Retirement . The Term and Wheeler’s employment
hereunder shall terminate automatically upon Wheeler’s
termination of employment due to Retirement. For the purposes of
this Agreement, “Retirement” means any termination of
Wheeler’s employment other than for Cause, by reason of death
or Disability, or a termination by the Company without Cause or by
Wheeler’s resignation for Good Reason. In the event
Wheeler’s employment is terminated by reason of Retirement,
the Company’s obligations under this Agreement shall
immediately expire. Notwithstanding the foregoing, the Company
shall be obligated to pay to Wheeler the following:
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(i)
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Base Salary
through the Date of Termination;
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(ii)
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Notwithstanding
anything in any bonus plan document to the contrary, an amount
equal to 65% of Wheeler’s Base Salary for the fiscal year in
which the Date of Termination occurs multiplied by a fraction, the
numerator of which is the number of completed days in the
then-existing fiscal year through the Date of Termination, and the
denominator of which is three hundred sixty-five, payable in lump
sum within 60 days following the Date of Termination;
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(iii)
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Accrued but
unused vacation pay through the Date of Termination; and
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(iv)
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All other
rights and benefits Wheeler is vested in, pursuant to other plans
and programs of the Company (including, but not limited to, the
Company’s 2003 Long-Term Incentive Plan and/or any successor
thereto).
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(b)
Death . The Term and Wheeler’s employment hereunder
shall terminate automatically upon Wheeler’s death during the
Term. In the event Wheeler’s employment is terminated by
reason of Wheeler’s death, the Company’s obligations
under this Agreement shall immediately expire. Notwithstanding the
foregoing, the Company shall be obligated to pay to Wheeler’s
estate (or other designated beneficiary) the following:
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(i)
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Base Salary
through the Date of Termination;
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(ii)
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Notwithstanding
anything in any bonus plan document to the contrary, an amount
equal to the target annual bonus Wheeler would otherwise have been
entitled to with respect to the fiscal year in which the Date of
Termination occurs multiplied by a fraction, the numerator of which
is the number of completed days in the then-existing fiscal year
through the Date of Termination, and the denominator of which is
three hundred sixty-five, payable in lump sum within 60 days
following the Date of Termination;
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(iii)
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Accrued but
unused vacation pay through the Date of Termination;
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(iv)
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All other
rights and benefits Wheeler is vested in, pursuant to other plans
and programs of the Company (including, but not limited to, the
Company’s 2003 Long-Term Incentive Plan and/or any successor
thereto).
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(c)
Disability . The Term and Wheeler’s employment
hereunder may be terminated by the Company if Wheeler becomes
physically or mentally incapacitated and is therefore unable to
perform Wheeler’s duties for a period of one hundred eighty
total calendar days during any period of twelve consecutive months
(or in the event of the Board’s reasonable expectation that
Wheeler’s Disability will exist for more than a period of one
hundred eighty calendar days) (such incapacity is hereinafter
referred to as “Disability”).
Such
Disability to be determined by the Board upon receipt of and in
reliance on competent medical advice from one or more individuals,
selected by the Board, who are qualified to give such professional
medical advice.
If
Wheeler and the Company shall not be in agreement as to whether
Wheeler has suffered a Disability for the purpose of this
Agreement, the matter shall be referred to a panel of three (3)
medical doctors, one of which shall be selected by Wheeler, one of
which shall be selected by the Company, and one of which shall be
selected by the two doctors as so selected, and the decision of a
majority of the panel with respect to the question of whether
Wheeler has suffered a Disability shall be binding upon Wheeler and
the Company. The expenses of any such referral shall be borne by
the Company. Wheeler will cooperate with reasonable requests for
submission to medical examinations made by the Board pursuant to
this Section 8(c).
It
is expressly understood that the Disability of Wheeler for a period
of one hundred eighty calendar days or less in the aggregate during
any period of twelve consecutive months, in the absence of any
reasonable expectation that his Disability will exist for more than
such a period of time, shall not constitute a failure by him to
perform his duties hereunder and shall not be deemed a breach or
default and Wheeler shall receive full compensation for any such
period of Disability or for any other temporary illness or
incapacity during the term of this Agreement.
A
termination for Disability shall become effective upon the end of a
thirty-day notice period; provided, however, that Wheeler may not
be terminated prior to a final determination made by the panel
described above, if such panel is necessary. In the event
Wheeler’s employment is terminated by reason of his
Disability, the Company’s obligations under this Agreement
shall immediately expire. Notwithstanding the foregoing, the
Company shall be obligated to pay to Wheeler (or Wheeler’s
personal representative) the following:
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(i)
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Base Salary
through the Date of Termination;
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(ii)
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Accrued but
unused vacation pay through the Date of Termination;
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(iii)
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Provided that
Wheeler executes a release of claims against the Company in a form
reasonably satisfactory to the Company and such release becomes
effective within 60 days following the Date of Termination,
notwithstanding anything in any bonus plan document to the
contrary, an amount equal to the target annual bonus Wheeler would
otherwise have been entitled to with respect to the fiscal year in
which the Date of Termination occurs multiplied by a fraction, the
numerator of which is the number of completed days in the
then-existing fiscal year through the Date of Termination, and the
denominator of which is three hundred sixty-five, payable in lump
sum within 30 days following the Date of Termination;
and
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(iv)
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All other
rights and benefits Wheeler is vested in, pursuant to other plans
and programs of the Company (including, but not limited to, the
Company’s 2003 Long-Term Incentive Plan and/or any successor
thereto).
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(d)
By the Company For Cause . The Term and Wheeler’s
employment hereunder may be terminated by the Company at any time
for Cause (as defined below). In the event Wheeler’s
employment terminates pursuant to this Section 8(d), the
Company’s obligations under this Agreement shall immediately
expire. Notwithstanding the foregoing, the Company shall be
obligated to pay to Wheeler the following:
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(i)
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Base Salary
through the Date of Termination, payable within sixty days from the
Date of Termination;
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(ii)
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Accrued but
unused vacation pay through the Date of Termination, payable within
sixty days from the Date of Termination; and
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(iii)
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All other
rights and benefits Wheeler is vested in, pursuant to other plans
and programs of the Company (including, but not limited to, the
Company’s 2003 Long-Term Incentive Plan and/or any successor
thereto).
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For
purposes of this Agreement, “Cause” is defined as
follows:
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(i)
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Willful and
continued failure of Wheeler to substantially perform his duties
with the company (other than any such failure resulting from
Disability or occurring after issuance by Wheeler of a Notice of
Termination for Good Reason), after a written demand for
substantial performance is delivered to Wheeler that specifically
identifies the manner in which the Company believes that Wheeler
has willfully failed to substantially perform his duties, and after
Wheeler has failed to resume substantial performance of his duties
on a continuous basis within thirty (30) calendar days of receiving
such demand;
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(ii)
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Conviction of a
felony involving a crime of moral turpitude; or
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(iii)
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Willfully
engaging in illegal conduct or gross misconduct which is materially
and demonstrably injurious to the Company.
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For
purposes of determining Cause, no act or omission by Wheeler shall
be considered “willful” unless it is done or omitted in
bad faith or without reasonable belief that Wheeler’s action
or omission was in the best interests of the Company. Any act or
failure to act based upon: (1) authority given pursuant to a
resolution duly adopted by the Board; or (2) advice of counsel for
the Company, shall be conclusively presumed to be done or omitted
to be done by Wheeler in good faith and in the best interests of
the Company.
In
addition, Wheeler shall not be deemed to be terminated for Cause
unless and until there shall have been delivered to Wheeler a copy
of a resolution duly adopted by the affirmative vote of not less
than three-quarters (3/4) of the entire membership of the Board at
a meeting called and held for such purpose (after reasonable notice
is provided to Wheeler and Wheeler is given an opportunity,
together with counsel, to be heard before th
