Employment Agreement
This
Amended Agreement is made this 17th day of September, 2002, 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 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 employment shall be from
June 1, 2002 through the 31st day of May, 2005, unless sooner
terminated as herein provided. It is further agreed that the term
of this Agreement shall be automatically extended on each day of
each year for an additional one year period, to the end that
Wheeler shall always have an employment term of three years, unless
employment is sooner terminated for cause, as provided below, or
unless before June 1 of any year the Company gives Wheeler written
notice that this Agreement will terminate at the end of any three
year period.
3.
Compensation . The Company shall pay to Wheeler during the
duration of the contract term as follows:
(a)
A minimum base salary of $500,000 annually, payable in equal
monthly installments, which will be reviewed annually during any
contract year, and any higher salary to become the minimum base
salary for the purposes of this provision; and
(b)
Such other compensation and benefits that may be made available by
the Company in the discretion of the Board of Directors or its
Compensation Committee, 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 or its Committee. It is
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 that long-term and
short-term incentive plans will be established by the Company as a
part of compensation for Wheeler under this Agreement. It is agreed
that the terms of the short-term and long-term incentive plans will
be communicated to Wheeler by the Company on or before July 1 of
each year that this Agreement remains in effect.
(c)
In addition to Wheeler’s participation in any retirement plan
provided to the Company 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.
4.
Duties . During the term of this Agreement Wheeler shall be
employed as the President and Chief Executive Officer of the
Company. His powers, duties, rights and responsibilities shall be
those described in the by-laws of the Company for the President.
More specifically, and in addition, Wheeler shall act as the chief
administrative officer of the Company, as well as the chief
executive officer of the Company. He shall supervise all executive
officers on the Company staff. Wheeler shall be responsible for
causing to be submitted annual and other Budgets to the Board of
Directors for approval, and shall supervise, at the executive
level, all matters and things which comprise the Budget. He shall
be responsible for, at the executive level, all operations,
business and investments of the Company, including the
Company’s investments in its subsidiaries.
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, 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 of this Agreement, to reimbursement for his
entertainment, travel, food, lodging, telephone and miscellaneous
expenses incurred in connection with the performance of his duties.
Wheeler shall provide the Company with an itemized list of
expenses, vouched for by him.
6.
Vacations . Wheeler shall be entitled to three weeks
vacation during each year of this Agreement, during which the
compensation provided for herein shall be paid in full. The
vacation time may be divided into whatever periods Wheeler might
choose, in his discretion.
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
inability or incapacity due to physical or mental illness or injury
to perform his duties.
8.
Employment Terminations .
(a)
Termination Due to Retirement or Death . In the event
Wheeler’s employment is terminated while this Agreement is in
force by reason of Retirement or death, the Company’s
obligations under this Agreement shall immediately expire.
Notwithstanding the foregoing, the Company shall be obligated to
pay to Wheeler or his estate the following:
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(i)
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Base Salary
through the Effective Date of Termination (defined as the date on
which a termination of Wheeler’s employment
occurs);
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(ii)
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An amount equal
to Wheeler’s unpaid targeted Annual Bonus award, established
for the fiscal year in which the Effective 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 Effective Date of Termination, and the denominator of which is
three hundred sixty-five (365);
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(iii)
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Accrued but
unused vacation pay through the Effective 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.
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(b)
Termination Due to Disability . In the event that Wheeler
becomes Disabled during the term of this Agreement and is,
therefore, unable to perform his duties herein for more than one
hundred eighty (180) total calendar days during any period of
twelve (12) 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
(180) calendar days, the Company shall have the right to terminate
Wheeler’s active employment as provided in this Agreement.
However, the Board shall deliver written notice to Wheeler of the
Company’s intent to terminate for Disability at least thirty
(30) calendar days prior to the effective date of such
termination.
Such
Disability to be determined by the Board of Directors of the
Company upon receipt of and in reliance on competent medical advice
from one (1) 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 (2) 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(b).
It
is expressly understood that the Disability of Wheeler for a period
of one hundred eighty (180) calendar days or less in the aggregate
during any period of twelve (12) 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 the thirty (30) 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. Upon the Effective Date of Termination, 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 Effective Date of Termination;
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(ii)
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An amount equal
to Wheeler’s unpaid targeted Annual Bonus award, established
for the fiscal year in which the Effective 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 Effective Date of Termination, and the denominator of which is
three hundred sixty-five (365);
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(iii)
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Accrued but
unused vacation pay through the Effective 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.
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(c)
Voluntary Termination by Wheeler . Wheeler may terminate
this Agreement at any time by giving the Board of Directors of the
Company written notice of his intent to terminate, delivered at
least sixty (60) calendar days prior to the Effective Date of
Termination. The termination automatically shall become effective
upon the expiration of the sixty (60) day notice period.
Notwithstanding the foregoing, the Company may waive the sixty (60)
day notice period; however, Wheeler shall be entitled to receive
all elements of compensation described in Section 3 for the sixty
(60) day notice period, subject to the eligibility and
participation requirements of any qualified retirement
plan.
Upon
the Effective Date of Termination, following the expiration of the
sixty (60) day notice period, the Company shall pay Wheeler his
full Base Salary and accrued but unused vacation pay, at the rate
then in effect, through the Effective Date of Termination, plus all
other benefits to which Wheeler has a vested right at that time
(for this purpose, Wheeler shall not be paid any Annual Bonus with
respect to the fiscal year in which voluntary termination under
this Section occurs).
(d)
Involuntary Termination by the Company without Cause . At
all times during the term of this Agreement, the Board may
terminate Wheeler’s employment for reasons other than death,
Disability, Retirement, or for Cause, by providing to Wheeler a
Notice of Termination, at least sixty (60) calendar days prior to
the Effective Date of Termination. Such Notice of Termination shall
be irrevocable absent express, mutual consent of the
parties.
Upon
the Effective Date of Termination (not a Qualifying Termination),
following the expiration of the sixty (60) day notice period, the
Company shall ay and provide to Wheeler:
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(i)
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An amount equal
to three (3) times Wheeler’s annual Base salary established
for the fiscal year in which the Effective Date of Termination
occurs;
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(ii)
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An amount equal
to three (3) times Wheeler’s targeted Annual Bonus
established for the fiscal year in which the Effective Date of
Termination occurs;
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(iii)
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A continuation
of the welfare benefits of health care, life and accidental death
and dismemberment, and disability insurance coverage for three (3)
full years after the Effective Date of Termination. These benefits
shall be provided to wheeler at the same coverage level as in
effect as of the Effective Date of Termination, and at the same
premium cost to Wheeler which was paid by Wheeler at the time such
benefits were provided. However, in the event the premium cost
and/or level of coverage shall change for all employees of the
Company, or for management employees with respect to supplemental
benefits, the cost and/or coverage level, likewise, shall change
for Wheeler in a corresponding manner. The continuation of these
welfare benefits shall be discontinued prior to the end of the
three (3) year period in the event Wheeler has available
substantially similar benefits at a comparable cost to Wheeler from
a subsequent employer, as determined by the Compensation Committee
(or, in the event the Compensation Committee ceases to exist, the
Board);
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(iv)
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An amount equal
to Wheeler unpaid targeted Annual Bonus award established for the
fiscal year in which Wheeler Effective 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
Effective Date of Termination, and the denominator of which is
three hundred sixty-five (365) ;
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(v)
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An amount equal
to Wheeler’s unpaid Base Salary and accrued but unused
vacation pay through the Effective Date of Termination;
and
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(vi)
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All other
benefits to which Wheeler has a vested right at the time, according
to the provisions of the governing plan or program.
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In
the event that a Change in Control occurs within six (6) months
after the Effective Date of Termination, with such termination a
result of the Board terminating Wheeler’s employment without
Cause, Wheeler shall be entitled to the CIC Severance Benefits as
provided in Section 8 in lieu of the Severance Benefits outlined in
this Section 8 (d) .
(e)
Termination for Cause . Nothing in this Agreement shall be
construed to prevent the Board from terminating Wheeler’s
employment under this Agreement for Cause.
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 the Board), finding that
in the good faith opinion of the Board, Wheeler is guilty of the
conduct defined as Cause below.
In
the event this Agreement is terminated by the Board for Cause, the
Company shall pay Wheeler his Base Salary and accrued vacation pay
through the Effective Date of Termination, and Wheeler shall
immediately thereafter forfeit all rights and benefits (other than
vested benefits) he would otherwise have been entitled to receive
under this Agreement.
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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.
(f)
Termination for Good Reason . Wheeler shall have sixty
(60)
