UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): July 30, 2014
Coeur Mining, Inc.
(Exact name of registrant as specified in its charter)
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Delaware (State or other jurisdiction of incorporation or organization) | 1-8641 (Commission File Number) | 82-0109423 (IRS Employer Identification No.) |
104 S. Michigan Avenue
Suite 900
Chicago, Illinois 60603
(Address of Principal Executive Offices)
(312) 489-5800
(Registrant's telephone number, including area code)
N/A
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instructions A.2 below):
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Supplemental Incentive Opportunity
On July 30, 2014, the Board of Directors (the “Board”) of Coeur Mining, Inc. (the “Company”), on the recommendation of the Compensation Committee of the Board (the “Committee”), approved and granted to Mitchell J. Krebs, the Company’s President and Chief Executive Officer, a supplemental incentive compensation opportunity pursuant to a supplemental incentive agreement (the “Supplemental Incentive Agreement”). The Supplemental Incentive Agreement provides Mr. Krebs the opportunity to earn up to $3.75 million in supplemental incentive compensation primarily for achievement of three multi-year strategic performance components through December 31, 2016. The Board and Committee awarded Mr. Krebs the incentive opportunity for retention purposes and to drive performance against critical long-term strategic objectives.
Under the first component (“Component 1”), Mr. Krebs has the opportunity to earn up to $1.0 million, payable in cash, based on the level of reduction of the Company’s all-in sustaining costs per silver equivalent ounce (as currently defined by the World Gold Council) from December 31, 2013 to December 31, 2015, with 2013 all-in sustaining costs per silver equivalent ounce adjusted downward to assume a more normal level of general and administrative expenses than actual 2013 expenses. For a full payout, all-in sustaining costs per silver equivalent ounce must be reduced by 5.0% or more. A minimum reduction of 2.5% is required for any payout, and reductions from 2.5% to 5.0% would result in a payout between 50% and 99.9%, interpolated.
The second component (“Component 2”) requires the achievement of objectives related to the Company’s planned expansion of its Rochester mine in Nevada by December 31, 2016; specifically, physical site preparation for construction of significant new leach pad capacity. Under Component 2, Mr. Krebs may earn up to $2.0 million payable in either cash or Company stock in the Committee’s discretion, if, by December 31, 2016, (i) all required permits for the construction of the additional leach pad capacity have been obtained, (ii) the Board has approved a formal project plan and related capital expenditures and (iii) physical site preparation for construction has commenced. Mr. Krebs may earn up to $1.0 million if all required permits have been obtained by December 31, 2016, but physical site preparation has not commenced for any reason.
The third component (“Component 3”) is payable if and to the extent Mr. Krebs is entitled to a payment pursuant to Component 1 and/or Component 2. Under Component 3, Mr. Krebs may earn up to $750,000, payable in either cash or Company stock in the Committee’s discretion, based on the Company’s total shareholder return performance relative to the peer group used for Mr. Krebs’s 2014-2016 performance share award opportunity (“Relative TSR”), calculated from the beginning of the 2014-2016 performance share performance period through December 31, 2015 for Component 1 and through December 31, 2016, for Component 2, as follows:
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Relative TSR Performance | Component 1 and/or 2 Payout Multiplier |
75th percentile or above | 125.0% |
50th percentile up to 75th percentile | 112.5% up to 125.0%, interpolated |
Below 50th percentile | No multiplier |
Mr. Krebs’s vesting in the payouts under the components described above generally is subject to his continued employment with the Company through December 31, 2015 and December 31, 2016, as applicable. Vesting will accelerate if his employment terminates before the applicable date due to (i) his death or disability, (ii) the Company terminating Mr. Krebs’s employment for any reason other than cause or Mr. Krebs terminating his employment for good reason, or (iii) the Company terminating Mr. Krebs’s employment for any reason other than cause or Mr. Krebs terminating his employment for good reason within two years following a change in control (as determined by the Compensation Committee in its discretion). “Disability”, “cause” and “good reason” are as defined in Mr. Krebs’s employment agreement with the Company.
The amount that can be earned under the Supplemental Incentive Agreement is intended to be awarded as a “Cash-Based Award” pursuant to the Company’s Amended and Restated 2003 Long-Term Incentive Plan. Of this amount, $1.2 million is intended to qualify as performance-based compensation under Section 162(m) of the Internal Revenue Code and is only eligible to be earned if a specified fiscal year 2015 Section 162(m) goal is satisfied, while the balance, $ 2.55 million, is not intended to qualify as performance-based compensation under Section 162(m) of the Internal Revenue Code.
A copy of the Supplemental Incentive Agreement is attached as Exhibit 10.1 to this Report.
Amended and Restated Employment Agreement
On July 30, 2014, the Company and Mr. Krebs entered into an amended and restated employment agreement (the “Amended Employment Agreement”). The Amended Employment Agreement reflects Mr. Krebs’s 2014 annual base salary of $650,000, which may be increased at the discretion of the Committee and the Board. In addition, as discussed in the Company’s most recent proxy statement, Mr. Krebs has the opportunity to earn an annual incentive bonus targeted to be 100% of Mr. Krebs’s then-current base salary and an annual long-term incentive award under the Company’s Amended and Restated 2003 Long-Term Incentive Plan with a target value of 300% of his then-current base salary. Such awards and any related payouts will be earned according to the performance criteria and vesting terms set forth therein and otherwise at the discretion of the Committee and the Board. The Amended Employment Agreement was entered into in order to make the severance provisions applicable to Mr. Krebs consistent with the Company’s executive severance policy and to provide that Mr. Krebs is entitled to severance upon any termination without Cause (as defined in the Amended Employment Agreement), remove outdated provisions and reflect the change to Illinois governing law.
A copy of the Amended Employment Agreement is attached as Exhibit 10.2 to this Report.
Item 9.01. Financial Statements and Exhibits.
(d) List of Exhibits
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Exhibit No. | Description |
Exhibit 10.1 | Supplemental Incentive Agreement dated July 30, 2014 between the Company and Mitchell J. Krebs
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Exhibit 10.2 | Amended and Restated Employment Agreement dated July 30, 2014 between the Company and Mitchell J. Krebs |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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| COEUR MINING, INC. |
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Date: August 1, 2014 | By: /s/ Casey M. Nault |
| Name: Casey M. Nault Title: Vice President, General Counsel, and Secretary |
Exhibit Index
Exhibit No. Description
Exhibit 10.1 Supplemental Incentive Agreement dated July 30, 2014 between the Company and Mitchell J. Krebs
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Exhibit 10.2 | Amended and Restated Employment Agreement dated July 30, 2014 between the Company and Mitchell J. Krebs |
Exhibit 10.1
July 30, 2014
Mr. Mitchell J. Krebs
President and Chief Executive Officer
Coeur Mining, Inc.
104 S. Michigan Avenue, Suite 900
Chicago, Illinois 60603
Re: Supplemental Incentive Agreement
Dear Mr. Krebs:
This Supplemental Incentive Agreement (the “Agreement”) sets forth the terms of a supplemental incentive (the “Incentive”) to be provided to you by Coeur Mining, Inc. (the “Company”), on the terms and subject to the conditions set forth below. The Incentive is intended to provide a variable pay opportunity to you in addition to the compensation you may earn under the Company’s regular executive compensation plans and programs and to reward you for the achievement of certain significant goals through December 31, 2016. To the extent applicable, the Incentive shall constitute a “Cash-Based Award” under the Company’s Amended and Restated 2003 Long-Term Incentive Plan (the “LTIP”).
Maximum Payments
The maximum amount eligible to become earned and payable in respect of the Incentive is a total of $3,750,000. Of this maximum amount, $1,200,000 is intended to qualify as performance-based compensation under Section 162(m) of the Internal Revenue Code of 1986, as amended to date and is only eligible to be earned and payable in respect of the Incentive if the Company achieves positive earnings before interest, tax, depreciation and amortization, determined in accordance with GAAP, for fiscal year 2015 (the “162(m) Goal”). For the avoidance of doubt, if the 162(m) Goal is not satisfied, the maximum amount eligible to be earned and payable in respect of the Incentive shall be $2,550,000. Subject to the foregoing limits, the Compensation Committee of the Board of Directors of the Company (the “Compensation Committee”) shall determine the amount that is earned and payable in respect of the Incentive (which may be less, but not more than the foregoing limits permit) in accordance with the description of Components 1, 2 and 3 below and the other terms and conditions set forth in this Agreement.
The Incentive has three components, as follows:
Component 1
Component 1 of the Incentive has the following terms and is subject to the following conditions and those in “Maximum Payments” above and “General Provisions” below:
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1. | Vesting: Component 1 will vest on December 31, 2015, subject to (a) the achievement of the Component 1 Performance Goal to the extent set forth in paragraph 1.3 below and (b) except in the |
Mr. Mitchell J. Krebs Page 2
July 30, 2014
case of your death or Disability, your continuous employment by the Company or an affiliate thereof (as determined by the Company) through the date on which Component 1 is paid, as specified in
paragraph 1.2 below. For purposes of this Supplemental Incentive Agreement, the term “Disability” has the meaning given in Section 6(f) of the Amended and Restated Employment Agreement dated July 30, 2014 between you and the Company (the “Employment Agreement”). Notwithstanding anything to the contrary in this Agreement, in the event of a termination of your employment by the Company for any reason other than for Cause (as defined in the Employment Agreement) or by you for Good Reason (as defined in the Employment Agreement) prior to December 31, 2015, or within two years following a Change in Control (as defined in the Employment Agreement) of the Company that occurs prior to December 31, 2015, to the extent unvested, Component 1 will vest based upon actual performance through the date of termination or, if applicable, the Change in Control as determined by the Compensation Committee in its discretion and will become payable to you, subject to applicable federal and state securities laws.
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2. | Value and Payment: The Maximum Value of Component 1 will be $1,000,000, payable in cash. Subject to paragraph 1.1 above, to the extent that the Component 1 Performance Goal is achieved, as set forth in paragraph 1.3 below, Component 1 will be paid to you within 10 business days following certification by the Compensation Committee as to the achievement of the Component 1 Performance Goal, such payment to occur no later than March 15, 2016. |
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3. | Performance Goal and Achievement: The Component 1 Performance Goal is a reduction of 5% in the Company’s all-in sustaining costs per silver equivalent ounce sold (“AISC”) for the year ending December 31, 2015 as compared to the year ended December 31, 2013. The following table sets forth the extent to which Component 1 will be paid upon specified levels of achievement of the Component 1 Performance Goal: |
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| Reduction in AISC 2015 vs. 2013 |
| Less Than 2.5% | From 2.5% to Less Than 5.0% | 5.0% or More |
Amount to be Paid (as a % of Maximum Value) | 0% | 50% to 99.9%, interpolated | 100% |
For purposes of this Agreement, (i) AISC shall be calculated in the manner currently specified by the World Gold Council, as set forth in Attachment A, and (ii) AISC for the year ended December 31, 2013 will be adjusted to assume General and Administrative expenses of $44.6 million rather than the actual $55.3 million incurred.
Component 2
Component 2 of the Incentive has the following terms and is subject to the following conditions and those in “Maximum Payments” above and “General Provisions” below:
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1. | Vesting: Component 2 will vest on December 31, 2016, subject to (a) the achievement of the Component 2 Performance Goal to the extent set forth in paragraph 2.3 below and (b) except in the case of your death or Disability, your continuous employment by the Company or an affiliate thereof (as determined by the Company) through the date on which Component 2 is paid, as specified in paragraph 2.2 below. Notwithstanding anything to the contrary in this Agreement, in the event of a termination of your employment by the Company for any reason other than for Cause (as defined in |
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the Employment Agreement) or by you for Good Reason (as defined in the Employment Agreement) that occurs prior to December 31, 2016, or within two years following a Change in Control (as defined in the Employment Agreement) of the Company prior to December 31, 2016, to the extent unvested, Component 2 will vest based upon actual performance through the date of termination or, if applicable, the Change in Control as determined by the Compensation Committee in its discretion and will become payable to you, subject to applicable federal and state securities laws.
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2. | Value and Payment: The Maximum Value of Component 2 will be $2,000,000, and the Threshold Value of Component 2 will be $1,000,000, in each case payable in cash or in shares of the Company’s Common Stock, at the sole discretion of the Compensation Committee. Subject to paragraph 2.1, to the extent that the Performance Goal is achieved, as set forth in paragraph 2.3 below, Component 2 will be paid or delivered to you within 10 business days following certification by the Compensation Committee as to the achievement of the Performance Goal, such payment to occur no later than March 15, 2017. In the event that the Compensation Committee determines to pay Component 2 in whole or in part in shares of the Company’s Common Stock, such shares will be valued at the average of the closing prices of such Common Stock for the last 30 trading days of 2016, as reported by the New York Stock Exchange (the “NYSE”), or if no longer listed on the NYSE, on such other primary exchange or quotation system as the Company’s Common Stock may then be listed or quoted. |
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3. | Performance Goal and Achievement: The Component 2 Performance Goal is the commencement of physical site preparation for construction of significant new leach pad capacity at the Company’s Rochester mine. The following sets forth the extent to which Component 2 will be paid upon specified levels of achievement of the Component 2 Performance Goal: |
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a. | The Maximum Award Value of Component 2, or $2,000,000, will be earned if and only if, by December 31, 2016, (i) all required local, state, and federal permits for the commencement of construction of such new leach pad capacity have been obtained; (ii) a formal project description/plan and capital budget has been developed and approved by the Board of Directors of the Company; and (iii) physical site preparation has commenced. |
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b. | The Threshold Award Value of Component 2, or $1,000,000, will be earned if and only if, by December 31, 2016, all required local, state, and federal permits for the commencement of construction of such new leach pad capacity are obtained, but physical site preparation has not commenced for any reason, including but not limited to poor weather or poor project economics based on low metal prices. |
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c. | Except as set forth in subparagraphs a and b above, Component 2 will not be earned. |
Component 3
Component 3 of the Incentive has the following terms and is subject to the following conditions and those in “Maximum Payments” above and “General Provisions” below:
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1. | Vesting: Component 3 will act as a modifier to Components 1 and 2, respectively, and will vest if and to the extent that Components 1 and 2 vest, respectively. For the avoidance of doubt, there will be no Component 3 payout unless (i) a payout is earned under Component 1 and/or Component 2, as applicable, and (ii) the applicable performance goal described in Section 3.3 below is achieved. |
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2. | Value and Payment: The Maximum Value of Component 3 will be $750,000, and the Threshold Value of Component 3 will be $125,000, in each case payable in cash or in shares of the Company’s Common Stock, at the sole discretion of the Compensation Committee. Subject to paragraph 3.1, to the extent that the Performance Goal is achieved, as set forth in paragraph 3.3 below, Component 3 will be paid or delivered to you concurrently with the delivery of payment for Component 1 and/or Component 2, respectively. In the event that the Compensation Committee determines to pay Component 3 in whole or in part in shares of the Company’s Common Stock, such shares will be valued at the average of the closing prices of such Common Stock for the last 30 trading days of 2015 or 2016, respectively for Component 1 and Component 2, as reported by the New York Stock Exchange (the “NYSE”), or if no longer listed on the NYSE, on such other primary exchange or quotation system as the Company’s Common Stock may then be listed or quoted. |
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3. | Performance Goal and Achievement: The Component 3 performance goal is the Company’s total shareholder return (“TSR”) performance relative to the peer group used for the 2014-2016 performance share grant to you under the LTIP, calculated from the beginning of the 2014-2016 performance share performance period through December 31, 2015, for Component 1, and through December 31, 2016, for Component 2. Notwithstanding the foregoing, to the extent that a payment is earned under Component 1 or Component 2 prior to December 31, 2015 or December 31, 2016, as applicable, as a result of a termination of your employment by the Company (as set forth above), the amount eligible to be earned under Component 3 will be calculated based on the Company’s TSR performance relative to the peer group used for the 2014-2016 performance shares grant to you under the LTIP, from the beginning of the 2014-2016 performance share performance period through the date of termination or, if applicable, the date of a Change in Control. |
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a. | The Threshold and Maximum performance will be earned under Component 3, with respect to each of Components 1 and 2, as follows: |
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Relative TSR Performance | Component 1 and/or 2 Payout Multiplier |
75th percentile or above | 125.0% |
50th percentile up to 75th percentile | 112.5% up to 125.0%, interpolated |
Below 50th percentile | No multiplier |
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b. | Relative TSR for purposes of Component 3 will be calculated according to the same methodology as for the 2014-2016 performance share grant to you under the LTIP. |
General Provisions
Neither Component 1, Component 2 nor Component 3 of the Incentive shall (a) be subject to the provisions of Section 6 (“Termination of Employment”) of the Employment Agreement, or (b) be eligible for a matching contribution by the Company under its Employee Savings Plan, Retirement Plan, or any other plan or program.
This Agreement, the Employment Agreement (with respect to the definitions of certain terms) and the LTIP set forth the entire agreement and understanding of the parties as to its subject matter and may not be amended, nor may any provision be waived, except by the execution of a written instrument executed by the parties hereto.
The LTIP provides a complete description of the terms and conditions governing Cash-Based Awards. If there is any inconsistency between the terms of this Agreement and the terms of the LTIP, the Agreement’s terms
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shall completely supersede unless expressly prohibited by the LTIP. All capitalized terms shall have the meanings ascribed to them in the LTIP, unless specifically set forth otherwise herein.
You hereby acknowledge and agree that you and the Incentive evidenced by this Agreement are subject to the Company’s Clawback Policy as amended from time to time. To the extent you are subject to the Policy, the terms and conditions of the Policy are hereby incorporated by reference into this Agreement.
This Agreement shall not confer upon you any right to continuation of employment by the Company, nor shall this Agreement interfere in any way with the Company’s right to terminate your employment at any time.
This Agreement and your rights hereunder are subject to all the terms and conditions of the LTIP, as the same may be amended from time to time, as well as to such rules and regulations as the Compensation Committee may adopt for administration of the LTIP. It is expressly understood that the Compensation Committee is authorized to administer, construe, and make all determinations necessary or appropriate to the administration of the LTIP and this Agreement, all of which shall be binding upon you.
You hereby agree to take all steps necessary to comply with all applicable provisions of federal and state securities laws in exercising your rights under this Agreement.
This Agreement shall be subject to all applicable laws, rules, and regulations, and to such approvals by any governmental agencies or national securities exchanges as may be required.
All obligations of the Company under the LTIP and this Agreement, with respect to the Incentive, shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business and/or assets of the Company.
To the extent not preempted by federal law, this Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware.
*****
Please sign as indicated below to confirm your acceptance of and agreement with the foregoing.
Very truly yours,
Coeur Mining, Inc.
By: /s/ John H. Robinson__
John H. Robinson
Chair, Compensation Committee of the
Board of Directors
Accepted and Agreed:
/s/ Mitchell J. Krebs
Mitchell J. Krebs
Exhibit 10.2
Amended and Restated Employment Agreement
This Amended and Restated Employment Agreement (this “Agreement”) between Coeur Mining, Inc. (“Company”), and Mitchell J. Krebs (“Employee”) is entered into and effective on the 30th day of July, 2014 and amends and restates the Employment Agreement dated the 12th day of September, 2011 and effective as of the 12th day of July, 2011.
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 President and Chief Executive Officer of Company, and Employee accepts such employment, on the terms and conditions of this Agreement. Employee is currently a member of the Board of Directors of the Company (the “Board”).
2.Term Of Employment. The initial term of Employee’s employment pursuant to this Agreement commenced on July 12, 2011 and ended on June 30, 2013 (the “Term”). Following the expiration of the initial Term, the Term automatically renewed, and will continue to automatically renew, for successive terms of one year each unless either Employee or the Company notify the other in writing of intent not to renew, no less than ninety (90) days prior to the expiration of the initial or subsequent Term. Notwithstanding anything to the contrary contained herein, the Term and Employee’s employment with the Company may be sooner terminated in accordance with the provisions of Section 6 below.
3.Compensation. The Company shall pay to Employee during the duration of the Term as follows:
(a)A base salary of $650,000 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 (the “Base Salary”);
(b)Employee shall be entitled to participate in the Company’s Annual Incentive Plan (or any successor thereto), with a target bonus opportunity thereunder during each calendar year of 100% of Employee’s Base Salary (the “Target Annual Bonus”), and a maximum bonus opportunity of 200% of the Target Annual Bonus;
(c)Employee shall be entitled to participate in the Company’s Amended and Restated 2003 Long-Term Incentive Plan (or any successor thereto), with a target award opportunity thereunder during each calendar year of 300% of Employee’s Base Salary at the beginning of such calendar year (the “Target LTIP Award”); and
(d)Such other compensation and benefits that may be made available by the Company in the discretion of the Board, including, without limitation, retirement plan, profit sharing plan, stock purchase plan and any other kind or type of incentive programs approved by the Board; it being understood that Employee shall be a participant in all compensation and benefit programs, both retirement and welfare benefit plans, which exist for the executive staff of the Company.
4.Duties. Employee, during the Term, shall perform the duties usually and customarily associated with the office specified in Section 1 above and as assigned to Employee from time-to-time by the Board. 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, with the assistance of the Company’s counsel and accountants, 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. During the Term and any applicable Restricted Period (as defined in Section 7), Employee shall not engage in business activity in competition with the Company.
5.Vacation. Employee shall be entitled to four (4) weeks of paid vacation during each contract year of this Agreement in accordance with the Company’s vacation policy as in effect from time to time.
6.Termination Of Employment. The Term and Employee’s employment with the Company may be terminated by either party at any time and for any or no reason; provided, however, that the Company and Employee will be required to give written notice of any termination of Employee’s employment as set forth in this Section 6. Notwithstanding any other provision of this Agreement, the provisions of this Section 6 shall exclusively govern Employee’s rights to compensation and benefits upon termination of employment with the Company and its affiliates.
(a)Notice of Termination. Any termination of Employee’s employment by the Company or by Employee under this Section 6 (other than as a result of Employee’s death) shall be communicated by a written notice to the other party specifying a date of termination (the “Date of Termination”) which, if submitted by Employee, shall be at least thirty (30) days and no more than forty-five (45) days following the date of such notice; provided, however, that in the case of a termination by Employee for Good Reason, Employee may provide immediate written notice of termination once the applicable cure period (as contemplated by the definition of Good Reason) has lapsed if the Company has not reasonably cured the circumstances that gave rise to the basis for the Good Reason termination. Notwithstanding anything herein to the contrary, during the period beginning on the date of the notice of termination and ending on the Date of Termination, the Company may, in its sole discretion, place Employee on paid leave of absence during which he shall continue to be deemed to be an employee of the Company for all purposes under this Agreement, but only be involved in Company matters to the extent requested by the Company.
(b)Accrued Rights. Upon a termination of Employee’s employment for any reason, Employee (or Employee’s estate) shall be entitled to receive the sum of (i) Employee’s Base Salary through the Date of Termination not theretofore paid; (ii) any expenses owed to Employee under the Company’s expense reimbursement policy; (iii) any accrued vacation pay owed to Employee under the Company’s policy for paying accrued vacation pay as in effect from time to time; and (iv) any amount arising from Employee’s participation in, or benefits under, any employee benefit plans, programs or arrangements (including, without limitation, the Company’s Amended and Restated 2003 Long-Term Incentive Plan, Annual Incentive Plan, and/or any successors thereto), which amounts shall be payable in accordance with the terms and conditions of such employee benefit plans, programs or arrangements (clauses (i)-(iv) collectively shall be the “Accrued Rights”), which (except for amounts under clause (iv) which shall be paid pursuant to the applicable plan, program or arrangement) shall be paid to Employee promptly, but in all events within thirty (30) days following the Date of Termination.
(c)Termination by the Company without Cause or by Employee for Good Reason Apart From a Change in Control. If Employee’s employment is terminated during the Term by the Company without Cause (including by reason of the expiration of the Term due to Company’s notice of non-renewal, but not
including by reason of Employee’s death, Disability, termination due to expiration of the Term due to Employee’s notice of non-renewal, a termination by Employee without Good Reason, or a termination by the Company for Cause) or by Employee for Good Reason, in either case, more than ninety (90) days prior to or more than two (2) years following a Change in Control, then, in addition to the Accrued Rights, Employee (or, if applicable, Employee’s estate) shall be entitled to the following benefits (subject to Section 6(g)):
(i)Severance pay consisting of an amount equal to the sum of the Base Salary, Target Annual Bonus and Target LTIP Award for the full year in which the Date of Termination occurs; which amount shall be payable to Employee in twelve (12) equal monthly installments commencing on the date that is thirty (30) days following the Date of Termination; and
(ii)To the extent permitted under applicable law, continuation of the health care benefits for Employee and his dependents until the earlier of (1) the date Employee becomes eligible for comparable coverage (at a comparable cost) or (2) the first anniversary of the Date of Termination, which benefits shall be provided at the same coverage level as in effect as of the Date of Termination, and at the same premium cost to Employee that was paid by Employee as of the Date of Termination (subject to the terms and conditions of such benefit plans as in effect from time to time).
For purposes of this Agreement, the term “Cause” means: (A) that Employee has failed to perform Employee’s duties 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; (B) 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; and (C) conviction of 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. For purposes of this Agreement, failure to perform duties includes, but is not limited to, misfeasance or nonfeasance of duty which was intended to, or does, injure the Company’s reputation or its business or relationships, including normal working relationships between employees; willful and continued failure of Employee to substantially perform his duties under this Agreement (except by reason of physical or mental disability); dishonesty in the performance of Employee’s duties and material breach by Employee of the covenants contained in Section 4 above.
For purposes of this Agreement, the term “Good Reason” means (A) for purposes of a termination of employment that occurs more than ninety (90) days prior to or more than two (2) years following a Change in Control, a termination of employment within sixty (60) days following: (i) a material reduction in Employee’s responsibilities, authorities or duties as compared to those in existence on the effective date of this Agreement, which is evidence of the duties contemplated by Section 4; or (ii) material 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) is not cured within thirty (30) days from receipt by the Company of written notice from Employee which specifies the details of the failure, and (B) for purposes of a termination of employment that occurs within the period that begins ninety (90) days prior to and ends two (2) years following a Change in Control, a termination of employment within sixty (60) days following: (i) a material reduction in the Base Salary or annual incentive opportunity described in Section 3(b), except for across-the-board reductions generally applicable to all executive officers of the Company; (ii) a material reduction in Employee’s responsibilities, authorities or duties as compared to those in existence on the effective date of this Agreement, which is evidence of the duties contemplated by Section 4; (iii) the Company’s requiring Employee to be based at a location which is more than fifty (50) miles from Employee’s principal place of employment immediately prior to the change; or (iv) material 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), (ii), (iii) or (iv) is not cured within thirty (30) days from receipt by the Company of written notice from Employee which specifies the details of the failure.
For the avoidance of doubt, following Employee’s termination of employment by the Company without Cause (including by reason of expiration of the Term due to Company’s notice of non-renewal but not including by reason of Employee’s death, Disability, termination due to expiration of the Term due to Employee’s notice of non-renewal, a termination by Employee without Good Reason, or a termination by the Company for Cause) or by Employee for Good Reason, in either case, more than ninety (90) days prior to or more than two (2) years following a Change in Control, Employee shall have no further rights to any compensation or any other benefits under this Agreement, except as set forth in this Section 6(c).
(d)Termination by the Company without Cause or by Employee for Good Reason in Connection with a Change in Control. If Employee’s employment is terminated during the Term by the Company without Cause (including by reason of the expiration of the Term due to Company’s notice of non-renewal, but not including by reason of Employee’s death, Disability, termination due to expiration of the Term due to Employee’s notice of non-renewal, a termination by Employee without Good Reason, or a termination by the Company for Cause) or by Employee for Good Reason, in either case, within the period that begins ninety (90) days prior to and ends two (2) years following a Change in Control, then, in addition to the Accrued Rights, Employee (or, if applicable, Employee’s estate) shall be entitled to the following benefits (subject to Sections 6(g) and 6(h)):
(i)A lump sum severance payment in an amount equal to two (2) times the sum of the Base Salary, Target Annual Bonus and Target LTIP Award for the year in which the Date of Termination occurs; which amount shall be payable to Employee within sixty (60) days following the Date of Termination; and
(ii)To the extent permitted under applicable law, continuation of the health care benefits for Employee and his dependents until the earlier of (1) the date Employee becomes eligible for comparable coverage (at a comparable cost) or (2) the second anniversary of the Date of Termination, which benefits shall be provided at the same coverage level as in effect as of the Date of Termination, and at the same premium cost to Employee that was paid by Employee as of the Date of Termination (subject to the terms and conditions of such benefit plans as in effect from time to time).
For purposes of this Agreement, the term “Change in Control” shall mean and be determined to have occurred in the following instances:
(A)any organization, group or person (“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”) is or becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 35% or more of the combined voting power of the then outstanding securities of the Company; or
(B)during any two-year period, a majority of the members of the Board serving at the date of this Agreement is replaced by directors who are not nominated and approved by the Board; or
(C)a majority of the members of the Board is represented by, appointed by or affiliated with any Person whom the Board has determined is seeking to effect a Change in Control of the Company; or
(D)the Company shall be combined with or acquired by another company and the Board shall have determined, either before such event or thereafter, by resolution, that a Change in Control will or has occurred.
For the avoidance of doubt, following Employee’s termination of employment by the Company without Cause (including by reason of the expiration of the Term due to Company’s notice of non-renewal, but not including by reason of Employee’s death, Disability, termination due to expiration of the Term due to Employee’s notice of non-renewal, a termination by Employee without Good Reason, or a termination by the Company for Cause) or by Employee for Good Reason, in either case, within the period that begins 90 days prior to and ends two (2) years following a Change in Control, Employee shall have no further rights to any compensation or any other benefits under this Agreement, except as set forth in this Section 6(d).
(e)Other Termination. If Employee’s employment is terminated during the Term by the Company for Cause or upon Employee’s resignation without Good Reason (including termination due to expiration of the Term due to Employee’s notice of non-renewal), Employee shall only be entitled to receive the Accrued Rights. Following Employee’s termination of employment by the Company for Cause or upon Employee’s resignation without Good Reason (including termination due to expiration of the Term due to Employee’s notice of non-renewal), Employee shall have no further rights to any compensation or any other benefits under this Agreement, except as set forth in this Section 6(e).
(f)Disability or Death. The Term and Employee’s employment with the Company will terminate upon Employee’s death or Disability. Upon termination of Employee’s employment hereunder by reason of his death or Disability, Employee or Employee’s estate (as the case may be) shall be entitled to receive the Accrued Rights. For purposes of this Agreement, the term “Disability” means inability or incapacity, due to physical or mental illness, of Employee to perform his duties with the Company for a period of three (3) continuous months. Following the termination of Employee’s employment by reason of Employee’s Disability or death, Employee shall have no further rights to any compensation or any other benefits under this Agreement, except as set forth in this Section 6(f).
(g)Release; Cessation of Severance Payments. Notwithstanding anything herein to the contrary, Employee hereby agrees that (i) Employee shall be entitled to the payments and benefits provided for in Sections 6(c) or 6(d) (other than the Accrued Rights) if and only if (A) Employee executes and delivers to the Company a general release of claims against the Company in a form reasonably satisfactory to the Company (the “General Release”) within twenty-one (21) days following the Date of Termination (which General Release shall be provided to Employee on or about the Date of Termination) and the General Release has become effective and irrevocable in accordance with its terms, and (B) Employee does not breach in any material respect any of the restrictive covenants in Section 7 of this Agreement at any time during the period for which such payments or benefits are to be made; and (ii) the Company’s obligation to make any of the payments or provide any of the benefits provided for in Sections 6(c) or 6(d) (other than the Accrued Rights) will terminate upon the occurrence of any breach in any material respect any of the restrictive covenants in Section 7 of this Agreement by Employee during any such period.
(h)Limitation on Payments. If the severance payments provided for under this Agreement, either alone or together with other payments which Employee would have the right to receive from the Company, would constitute a “parachute payment,” as defined in Section 280G(a) of the Code as in effect at the time of payment, such payment shall be reduced to the largest amount as will result in no portion being subject to the excise tax imposed by Section 4999 of the Code or the disallowance of a deduction by Company pursuant to Section 280G of the Code. The determination of the amount of any reduction under this section, and the plan and payment to which such reductions shall apply, shall, to the extent permitted by Section 409A,
be made in good faith by the Company and otherwise shall be made in such a manner so as to maximize the value of payments to Employee and such determination shall be binding on Employee.
7.Employee Covenants.
(a)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 A, previously executed by Employee.
(b)Resignation of Offices. Promptly following the termination of Employee’s employment with the Company for any reason other than his death, Employee shall promptly deliver to the Company reasonably satisfactory evidence of Employee’s resignation from all positions that Employee may then hold as an employee, officer or director of the Company or any affiliate.
(c)Ongoing Assistance. Following the termination of Employee’s employment with the Company and its affiliates, Employee agrees to make himself reasonably available, subject to Employee’s other personal and professional commitments and obligations, to provide information and other assistance as reasonably requested by the Company (and, at the reasonable expense of the Company), with respect to pending, threatened or potential claims and other matters related to the business of the Company about which Employee has personal knowledge as a result of Employee’s supervision or other involvement within such claims or matters performed in connection with Employee’s employment. In all events, the Company shall reimburse Employee or pay on Employee’s behalf, all direct expenses incurred (including any travel) in connection with Employee’s fulfillment of the obligations set forth in this Section 7(c).
(d)Agreement Not to Compete. Employee will not during the period of Employee’s employment by the Company and, in the event of a termination of Employee’s employment under any of the circumstances covered by Sections 6(c) or (d), for twelve (12) months thereafter (the “Restricted Period”), directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the Company or any affiliate (collectively, the “Company Group”) within any state, province or region in any country in which the Company Group conducts business, or has plans (of which Employee was aware) to conduct business, as of the Date of Termination, or undertake any planning for any business competitive with the Company Group. Specifically, but without limiting the foregoing, Employee agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company Group as conducted as of the Date of Termination or that otherwise provides services that directly or indirectly complete with services provided to clients by the Company Group, and further agrees not to work or provide services, in any capacity, whether as an employee, independent contractor or otherwise, whether with or without compensation, to any Person who is engaged in any business that is competitive with the business of the Company Group or otherwise provides services that directly or indirectly complete with services provided to clients by the Company Group. For the purposes of this Section 7(d), the business of the Company shall include active exploration and precious metals mining operations. The foregoing, however, shall not prevent Employee’s passive ownership of two percent (2%) or less of the equity securities of any publicly traded company.
(e)Agreement Not to Solicit Business Contacts. Employee agrees that, during the Restricted Period, Employee will not directly or indirectly (i) solicit or encourage any client, customer, bona fide prospective client or customer, supplier, licensee, licensor, landlord or other business relation of the Company and/or any of its affiliates (each a “Business Contact”) to terminate or diminish its relationship with them; or (ii) seek to persuade any such Business Contact to conduct with anyone else the business of the Company that such Business Contact conducts or could conduct with the Company and/or any of its affiliates.
(f)Agreement Not to Solicit or Hire Employees. During the Restricted Period, Employee will not directly or indirectly solicit for employment, employ or induce or attempt to induce any employees, consultants, contractors or representatives of the Company and/or any of its affiliates to stop working for, contracting with or representing the Company and/or its affiliates. Notwithstanding the foregoing, Employee shall not be in breach or violation hereof in the event Employee shall use any form of industry wide or public media to advertise, seek or solicit employment, consulting, contract or representative services without specifically targeting the employees, consultants, contractors or representatives of the Company.
(g)Non-Disparagement. Employee shall not, during the Term or at any time thereafter, make, directly or indirectly, any public or private statements or other communications that are or could be harmful to or reflect negatively on (or that are otherwise disparaging of) the Company or any of its affiliates or their respective businesses, or any of their past, present or future officers, directors, employees, advisors, agents, policies, procedures, practices, decision-making, conduct, professionalism or compliance with standards, provided that Employee may give truthful testimony under oath if so required. The Company shall cause the Company and its executive officers and directors to not, during the Term or at any time thereafter, make, directly or indirectly, any public or private statements or other communications that are or could be harmful to or reflect negatively on (or that are otherwise disparaging of) Employee or his decision-making, conduct, professionalism or compliance with standards, provided that the Company’s and any of its subsidiaries’ respective executive officers, directors and other employees may give truthful testimony under oath if so required.
8.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. Further, Employee acknowledges that he has carefully read and considered all the terms and conditions of this Agreement, including the restraints imposed upon him pursuant to Section 7. Employee agrees that each of the restraints contained in Section 7 are necessary for the protection of the goodwill, confidential information and other legitimate interests of the Company and its affiliates; that each and every one of these restraints is reasonable in respect to subject matter, length of time and geographic area; and that these restraints, individually or in the aggregate, will not prevent him from obtaining other suitable employment during the period in which Employee is bound by such restraints. Employee further acknowledges that, were he to breach any of the covenants contained in Section 7, the damage to the Company and its affiliates would be irreparable. Employee therefore agrees that the Company, in addition to any other remedies available to it, shall be entitled to injunctive relief against any breach or threatened breach by Employee of any of said covenants, without having to post bond. The parties further agree that, in the event that any provision of Section 7 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too great a range of activities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law.
9.Arbitration. Except as set forth in Section 8, Employee and Company agree that in the event a dispute arises concerning or relating to the interpretation, application or enforcement of this Agreement, such dispute shall be submitted to binding arbitration in accordance with the employment arbitration rules of American Arbitration Association (“AAA”) by a single impartial arbitrator experienced in employment law selected as follows: if Company and Employee are unable to agree upon an impartial arbitrator within ten days of a request for arbitration, the parties shall request a panel of employment arbitrators from AAA and alternatively
strike names until a single arbitrator remains. The arbitration shall take place in Chicago, Illinois, and both Employee and Company agree to submit to the jurisdiction of the arbitrator selected in accordance with AAA’s rules and procedures. Employee and Company further agree that arbitration as provided for in this section will be the exclusive remedy for any such dispute and will be used instead of any court action, which is hereby expressly waived, except for any request by either Party hereto for temporary or preliminary injunctive relief pending arbitration in accordance with applicable law, or an administrative claim with an administrative agency. The Parties further agree that the award of the arbitrator shall be final and binding on both parties. The arbitrator shall have discretion to award monetary and other damages, or no damages, and to fashion such other relief as the arbitrator deems appropriate. Company will be responsible for paying any filing fees and costs of the arbitration proceeding itself (for example, arbitrators’ fees, conference room, transcripts), but each Party shall be responsible for its own attorneys’ fees (except as set forth in Section 10(g) below). COMPANY AND EMPLOYEE ACKNOWLEDGE AND AGREE THAT BY AGREEING TO ARBITRATE, THEY ARE WAIVING ANY RIGHT TO BRING AN ACTION AGAINST THE OTHER IN A COURT OF LAW, EITHER STATE OR FEDERAL, AND ARE WAIVING THE RIGHT TO HAVE CLAIMS AND DAMAGES, IF ANY, DETERMINED BY A JURY.
10.Other Items. The parties also agree:
(a)This Agreement shall not be amended or modified in any way unless the amendment or modification is in writing, signed by the parties. There shall be no oral modification of this Agreement.
(b)No provision of this Agreement shall be waived by conduct of the parties or in any other way.
(c)This Agreement and its validity, interpretation, construction and performance shall be governed by the laws of the State of Illinois.
(d)This Agreement constitutes the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the parties with respect to such subject matter, including, but not limited to, that certain Amended and Restated Employment Agreement, effective as of December 31, 2008, between the Company and Employee, as amended (the “Original Employment Agreement”), which Original Employment Agreement shall be of no further force or effect.
(e)Any and all notices, requests, demands and other communications provided for by this Agreement shall be in writing and shall be effective when delivered in person, consigned to a reputable national courier service or deposited in the United States mail, postage prepaid, registered or certified, and addressed to Employee at his last known address on the books of the Company or, in the case of the Company, at its principal place of business, attention of the General Counsel or to such other address as any party may specify by notice to the other actually received.
(f)Employee acknowledges that he previously received a copy of the Company’s Insider Trading Policy.
(g)In the event of any arbitration or other litigation between the parties that is based upon or arises out of this Agreement, the prevailing party shall be entitled to recover from the losing party its reasonable attorneys’ fees and costs (other than the arbitration costs described in Section 9, which will be borne by the Company whether or not it is the prevailing party).
11.Section 409A Compliance. All payments pursuant to this Agreement shall be subject to the provisions of this Section 11. This Agreement is intended to be interpreted and operated to the fullest extent possible so that the payments and benefits under this Agreement either shall be exempt from the requirements of Section 409A of the Internal Revenue Code of 1986, as amended ("Section 409A") or shall comply with the requirements of Section 409A; provided, however, that notwithstanding anything to the contrary in this Agreement in no event shall the Company be liable to the Employee for or with respect to any taxes, penalties or interest which may be imposed upon the Employee pursuant to Section 409A. For purposes of this Agreement, the date on which a “separation from service” pursuant to Section 409A (“Separation from Service”) occurs shall be treated as the termination of employment date for purposes of determining the timing of payments under this Agreement to the extent necessary to have such payments and benefits under this Agreement be exempt from the requirements of Section 409A or comply with the requirements of Section 409A. For purposes of determining whether a Separation from Service has occurred for purposes of Section 409A, a Separation from Service is deemed to include a reasonably anticipated permanent reduction in the level of services performed by the Employee to less than fifty percent (50%) of the average level of services performed by the Employee during the immediately preceding 12-month period (or period of service if less than twelve (12) months).
(a)To the extent that any payment or benefit pursuant to this Agreement constitutes a “deferral of compensation” subject to Section 409A (after taking into account to the maximum extent possible any applicable exemptions) (a “409A Payment”) treated as payable upon a Separation from Service, then, if on the date of the Employee’s Separation from Service, the Employee is a Specified Employee, then to the extent required for Employee not to incur additional taxes pursuant to Section 409A, no such 409A Payment shall be made to the Employee sooner than the earlier of (i) six (6) months after the Employee’s Separation from Service; or (ii) the date of Employee’s death. Should this Section 11 otherwise result in the delay of in-kind benefits, any such benefit shall be made available to the Employee by the Company during such delay period at Employee’s expense. Should this Section 11 result in payments or benefits to Employee at a later time than otherwise would have been made under this Agreement, on the first day any such payments or benefits may be made without incurring additional tax pursuant to Section 409A (the “409A Payment Date”), the Company shall make such payments and provide such benefits as provided for in this Agreement, provided that any amounts that would have been payable earlier but for the application of this Section 11, as well as reimbursement of the amount Employee paid for benefits pursuant to the preceding sentence, shall be paid in lump-sum on the 409A Payment Date along with accrued interest at the Prime Rate quoted by JP Morgan Chase on the date that payments or benefits, as applicable, to Employee should have been made under this Agreement. For purposes of this Section 11, the term “Specified Employee” shall have the meaning set forth in Section 409A.
(b)For purposes of complying with Section 409A and without extending the payment timing otherwise provided in this Agreement, taxable reimbursements under this Agreement, subject to the following sentence and to the extent required to comply with Section 409A, will be made no later than the end of the calendar year following the calendar year in which the expense was incurred. To the extent required to comply with Section 409A, any taxable reimbursements and any in-kind benefits under this Agreement will be subject to the following: (a) payment of such reimbursements or in-kind benefits during one calendar year will not affect the amount of such reimbursement or in-kind benefits provided during any other calendar year (other than for medical reimbursement arrangements as excepted under Treasury Regulations §1.409A-3(i)(1)(iv)(B) solely because the arrangement provides for a limit on the amount of expenses that may be reimbursed under such arrangement over some or all of the period the arrangement remains in effect); (b) such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another form of compensation to the Employee; and (c) the right to reimbursements under this Agreement will be in effect for the lesser of the time specified in this Agreement or ten years plus the lifetime of the Employee. Any
taxable reimbursements or in-kind benefits shall be treated as not subject to Section 409A to the maximum extent provided by Section 409A.
(c)No 409A Payment payable under this Agreement shall be subject to acceleration or to any change in the specified time or method of payment, except as otherwise provided under this Agreement and consistent with Section 409A. If under this Agreement, a 409A Payment is to be paid in two or more installments, for purposes of Section 409A, each installment shall be treated as a separate payment.
(d)If the Company or Employee determines that any provision of this Agreement is or might be inconsistent with the requirements of Section 409A, the parties shall attempt in good faith to agree on such amendments to this Agreement as may be necessary or appropriate to avoid subjecting Employee to the imposition of any additional tax under Section 409A without changing the basic economic terms of this Agreement. Notwithstanding the foregoing, no provision of this Agreement shall be interpreted or construed to transfer any liability for failure to comply with Section 409A from Employee or any other individual to the Company. This Section 11 is not intended to impose any restrictions on payments or benefits to Employee other than those otherwise set forth in this Agreement or required for Employee not to incur additional tax under Section 409A and shall be interpreted and operated accordingly. The Company to the extent reasonably requested by Employee shall modify this Agreement to effectuate the intention set forth in the preceding sentence.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first written above.
Coeur Mining, Inc.
By__/s/ Robert E. Mellor___________________________
Name: Robert E. Mellor
Title: Chairman of the Board
Employee
___/s/ Mitchell J. Krebs____________________________
Mitchell J. Krebs
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