Employment Agreement
This
Agreement is made effective on the 1st day of July, 2005, between
Coeur d’Alene Mines Corporation (“Company”), and
Gary Banbury (“Employee”).
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 agrees to, and hereby does, employ
Employee as Sr. Vice President Chief Administrative Officer and
Employee accepts such employment, on the terms and conditions of
this Agreement.
2.
Term Of Employment . The initial term of this Agreement
shall be from July 1, 2005 through June 30, 2007, unless sooner
terminated as herein provided. It is further agreed that this
Agreement may be considered for a one year extension during the
month of June, 2006, to the end that the parties may be once again
bound to a two year duration of this Agreement. It is understood,
however, that termination can occur in accordance with the
provisions of paragraph 7 below, notwithstanding anything to the
contrary in this paragraph 2.
3.
Compensation . The Company shall pay to Employee during the
duration of the term of this Agreement as follows:
(a)
A base salary of $185,000 annually, payable in equal monthly
installments, which may be reviewed annually during any Agreement
year, but which may not be decreased, and any higher salary to
become the base salary for the purposes of this provision, it being
understood, however, that failure to increase the salary shall not
be grounds for termination of this Agreement;
(b)
Such other compensation and benefits that may be made available by
the Company in the discretion of the Board of Directors, consisting
of bonuses, short-term and long-term incentive plans, pension plan,
retirement plan, profit sharing plan, stock purchase plan and any
other kind or type of incentive programs approved by the Board. It
is understood that Employee shall be a participant in all
compensation and benefit programs, both pension and welfare benefit
plans, which exist for the executive staff of the
Company;
(c)
Employee shall be entitled to earn an annual incentive bonus during
each calendar year of this Agreement payable in cash pursuant to
the Company’s Annual Incentive Plan (AIP) equal to no less
than 40% of Employee’s then current annual salary, which, at
the date of this Agreement, is the potential sum of $74,000 and a
maximum of $148,000. In addition, Employee shall be entitled to
earn a long-term incentive bonus, payable in cash and/or stock,
stock options or other compensation under the Company’s Long
Term Incentive Plan (LTIP) with a target level of 50% or a
potential $92,500. Such bonuses are at the discretion of the board
of directors; and
(d)
Employee will be eligible for a cash vehicle allowance to be paid
by the Company monthly commencing with the month of July
2005.
4.
Duties . Employee, during the term of this Agreement, shall
perform the duties usually and customarily associated with the
office specified in paragraph (1) above and as assigned to Employee
from time-to-time by the Chief Executive Officer of the Company. As
a part of Employee’s duties it is agreed that Employee will
become familiar with and comply with Employee’s duties under
the Sarbanes-Oxley laws and under the Company’s corporate
governance policies, and Employee will promptly execute the
necessary public filings and certify the contents of such documents
on the date of their filing.
Employee
shall devote Employee’s best efforts and substantially all of
Employee’s time during business hours to advance the
interests of the Company. Employee shall not engage in business
activity in competition with the Company.
5.
Vacation . Employee shall be entitled to four (4) weeks of
vacation during each contract year of this Agreement commencing
with the year 2005-2006, during which the compensation provided in
this Agreement shall be paid in full.
6.
Disability . In the event Employee becomes disabled
(inability or incapacity due to physical or mental illness or
injury to perform Employee’s duties) during the term of this
Agreement, which renders Employee unable to perform
Employee’s duties, Employee shall be entitled to participate
in the Company’s disability payment plan in effect at the
time of the disability.
7.
Termination Of Employment . This Agreement shall be
terminated as follows:
(a)
In accordance with paragraph 2 above upon the expiration of the
term of this Agreement or any extension thereof;
(b)
Upon the death of Employee;
(c)
By mutual agreement of the parties;
(d)
Upon disability of Employee, when such disability renders Employee
unable to perform Employee’s duties for more than 90
continuous days;
(e)
By the Company without giving any reason for termination, but with
the understanding that the compensation provided herein, except for
participation in the 401K & Defined Contribution Plan; and the
life insurance, accidental death and dismemberment and disability
insurance benefits (the “Excluded Benefits”), but
including the base compensation, vehicle allowance, target annual
incentive bonus and the long term incentive bonus if Employee is so
entitled (it being understood, however, as to the incentive plans
the Plan documents control the Employee’s rights)
(“Included Benefits”), shall be paid or provided in
full to Employee in accordance with this Agreement, for the period
of the remaining duration of this Agreement. It is agreed that the
Company may set-off against the compensation and Included Benefits
due to Employee under this subparagraph any items of like
compensation which Employee receives from other employment after
the date of termination, there being no affirmative obligation for
Employee to obtain other employment following
termination;
(f)
By the Company “ For Cause ”. For purposes of
this Agreement, any of the following constitutes For Cause
termination:
|
|
(i)
|
failure to
perform Employee’s duties, as defined below, after having
received from the Company written documentation that
Employee’s duties are not being performed, which written
documentation shall specify how performance is deficient, and
Employee then fails to resume satisfactory performance promptly
after receipt of such documentation and failure of performance is
not satisfactorily rectified, or
|
|
|
(ii)
|
a serious and
substantial failure to perform Employee’s duties, which
failure is so obvious and so harmful to Company that written
documentation and an opportunity to rectify conduct need not be
afforded by Company to Employee, or
|
|
|
(iii)
|
a conviction
of, or plea of nolo contendere to, a felony, or engagement
in illegal conduct which may not constitute a felony but which is
injurious to the Company, in either such case Company need not
allow Employee to rectify nonperformance, or
|
|
|
(iv)
|
a material
breach of Employee’s obligations under the
“Confidentiality Agreement’ as described in section 8
herein.
|
For
purposes of this provision, Failure To Perform duties in section
(f)(i) above includes, but is not limited to; misfeasance or
nonfeasance of duty which was intended to, or does in fact, injure
the Company’s reputation or its business or relationships;
willful and continued failure of Employee to substantially perform
his duties under this Agreement (except by reason of physical or
mental disability, which is dealt with in paragraph 7(d) above);
personal dishonesty in the performance of Employee’s duties;
and/or material breach by Employee of the covenants contained in
paragraph 4 above;
(g)
Upon change in control of Company, as “ Change in
Control ” is defined in the so-called Change in Control
Agreement between Company and Employee, a copy of which is attached
hereto as Attachment A, and which will be executed by the parties
hereto when this Agreement is executed by them. In the event of
termination for this reason, Employee’s and Company’s
rights with respect to compensation and all other matters related
to employment shall be as specified in the Change in Control
agreement, and not this Agreement; and
(h)
Upon the insolvency or dissolution of the Company or the cessation
of business or operations; and
(i)
By Employee for “ Good Reason” . For purposes of
this Agreement, Good Reason is defined to mean any of the
following;
|
|
(i)
|
a material
reduction in Employee’s responsibilities, authorities or
duties compared to those in existence on the effective date of this
Agreement which is evidence of the duties contemplated by paragraph
4; or
|
|
|
(ii)
|
failure of the
Company to pay to Employee any amount otherwise vested and due
under this Agreement or under any plan or policy of the
Company,
|
|
|
which failure
in either (i) or (ii) above is not cured within five days from
receipt by the Company of written notice from Employee which
specifies the details of the failure.
|
In the event of termination of
this Agreement for any of the reasons specified above other than
item (e) regarding termination by the Company without giving any
reason, Employee shall be entitled to be paid his base salary
prorated for the calendar year to the date of termination. All
other benefits, if any, following such termination shall be paid in
accordance with the plans, policies and practices of the Company
which are in effect on the date of termination. As to termination
in accordance with item (e) above, Employee shall be paid in
accordance with that subparagraph.
8.
Confidentiality . Employee agrees to keep information
acquired in connection with Employee’s employment
confidential, in accordance with the Confidentiality Agreement
which is attached to this Agreement, marked Attachment B, to be
executed by Employee when this Agreement is executed. With respect
to confidentiality, Attachment B controls the rights, duties and
obligations of the parties, rather than this paragraph
8.
9.
Specific Performance . Employee understands that the
obligations undertaken by Employee as set forth in this Agreement
are unique, and that Company will likely have no adequate remedy at
law in the event such obligations are breached. Employee therefore
confirms that Company has the right to seek specific performance if
Company feels such remedy is essential to protect the rights of
Company. Accordingly, in addition to any other remedies which
Company might have in law or equity, it shall have the right to
have all obligations specifically performed, and to obtain
injunctive relief, preliminary or otherwise, to secure performance.
Employee agrees that the arbitration provision below will not be
used to assert dismissal of an action in court for injunctive
relief, and agrees that the availability of arbitration is not
intended by the parties to prevent Company from seeking specific
performance and injunctive relief.
10.
Arbitration . The Company and Employee will attempt to
resolve any disputes under this Agreement by negotiation. If any
matter is not thereby resolved, within 30 days after written notice
by either party to the other, any dispute or disagreement arising
out of or relating to this Agreement, or the breach of it, will be
subject to exclusive, final and binding arbitration before one
arbitrator to be conducted in Coeur d’Alene, Idaho in
accordance with the Uniform Arbitration Act of the State of Idaho
and the applicable laws of the State of Idaho governing arbitration
of disputes. The parties to this Agreement specifically acknowledge
that any such dispute under this Agreement, even though this
Agreement is between an employer and an employee, is subject to
said Act. Each party he
