Exhibit 10(hh)
EXECUTIVE SEVERANCE AGREEMENT
THIS AGREEMENT, dated as of ____________, is made and entered into
between Coeur d' Xxxxx Xxxxx Corporation (the "Company") and ____(the
"Executive") and is made in light of the following circumstances:
A. The Company recognizes the valuable services that the Executive has
rendered and desires to be assured that the Executive will continue his or her
active participation in the management and business of the Company; and
B. The Company considers the establishment and maintenance of a sound and
vital management to be essential to protecting and enhancing the best interests
of the Company and its shareholders, and the Company recognizes the existence
and continued likely existence of possible change in control of the Company, as
defined below, causing uncertainty among management and resulting in the
possible departure or distraction of members of management to the detriment of
the Company and its shareholders; and
C. The Executive is willing to continue to serve the Company, but desires
assurance that in the event of any such change in control of the Company, he
will be protected against the financial impact of an unexpected termination.
NOW, THEREFORE, the Company agrees that the severance benefits described
below will be provided, subject to the terms and conditions set forth below, to
the Executive in the event the employment of the Executive with the Company or
its subsidiaries is terminated subsequent to a change in control of the Company,
as defined below, under the circumstances described below:
1. Company's Right to Terminate. During the Term of Agreement, as defined below,
the Executive agrees, so long as he continues to be employed as an officer of
the Company or any of its subsidiaries, to continue to perform his regular
duties as such officer of the Company or such other officer position to which
the Executive may be assigned. Not withstanding the foregoing, the Company may
terminate the employment of the Executive at any time, subject to providing the
benefits hereinafter specified in accordance with the terms hereto and subject
to all terms and conditions of any other written agreement with the Company.
2. Effective Date. The "Effective Date" shall be the date of this Agreement as
above set forth.
3. Term of Agreement. This Agreement shall have a termination of _______________
and shall continue from year to year thereafter until terminated at the end of
any year by written notice from the Company to you, unless a change in control
of the Company, as defined below, shall have occurred prior to that date, in
which event it shall continue in effect during the two (2) year period
immediately following such change in control as provided herein.
4. Change of Control. No benefits shall be payable hereunder unless there shall
have occurred a change in control of the company, as defined below, and the
employment of the Executive by the company shall have been thereafter terminated
in the manner described in section 5 thereof. For purpose of this Agreement, a
change in control of the Company ("Change in Control") shall mean and be
determined to have occurred if (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 Effective 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.
5. Termination Following Change in Control. If a Change in Control shall have
occurred, the Executive shall be entitled to the benefits provided in Section 6
hereof upon the subsequent involuntary termination, whether actual or
constructive, as defined below, of the employment of the Executive within the
two (2) year period immediately following such Change in Control, for any reason
other than termination for cause, disability, death, normal retirement or early
retirement. For the purposes of this section:
(a) "Constructive Involuntary Termination" shall mean voluntary termination
of employment by the Executive as a result of a significant change in the
duties, responsibilities, reporting relationship, job description,
compensation, perquisites, office or location of employment of Executive
without the written consent of the Executive.
(b) "Cause" shall mean termination of employment on account of (i) fraud,
misrepresentation, theft or embezzlement, (ii) intentional violation of
laws involving moral turpitude or which is materially injurious to the
Company, (iii)
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willful and continued failure by the Executive substantially to perform his
or her duties with the Company or its subsidiaries (other than failure
resulting from the Executive's incapacity due to physical or mental
illness), after a demand for substantial performance is delivered to the
Executive by the President or the Chairman of the Board of the Company,
which demand specifically identifies the manner in which the Executive has
not substantially performed his or her duties.
(c) "Disability" shall mean inability or incapacity, due to physical or
mental illness, of the Executive to perform his or her duties with the
company for a period of three continuous months.
(d) Any termination of the employment of the Executive by the Company shall
be communicated by a written notice of termination addressed to the
Executive and any termination of the employment of the Executive by the
Executive, except by death, shall be communicated by a written notice of
termination addressed to the President or Chairman of the Board of the
Company. The notice of termination shall specify the date of termination
("Date of Termination") and the characterization of the termination.
6. Benefits Upon Termination. If the Executive's employment by the company shall
be terminated as provided in Section 5 hereof, other than for cause, disability
or death, the Executive shall be entitled to the benefits provided below:
(a) Base Salary and Bonuses. The Company shall continue to compensate the
Executive at his or her full annual base salary at the rate in effect
immediately prior to the termination of the employment of the Executive,
and to pay short-term and long-term bonuses at target levels pursuant to
the Company's 1989 Annual Incentive Plan and 1989 Long-Term Performance
Plan, for the period of two (2) years following actual involuntary
termination or Constructive Involuntary Termination, if such termination
occurs during the period in which this Agreement is in effect (the "Salary
Continuance Period"). Benefits paid in accordance with this Subsection 6(a)
shall not be reduced in the event the Executive is employed elsewhere
during this time period, or by reason of death or disability.
(b) Medical and Dental Benefits; Long-term Disability Benefits. The Company
shall maintain in full force and effect from the Date of Termination
through the end of the Salary Continuance Period, all medical and dental
benefits and all long term disability benefits in which the Executive was
entitled to participate immediately prior to the Date of Termination, to
the same extent as if the Executive had continued to be an employee of the
Company during the Salary Continuance Period, provided that such continued
participation is feasible
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under the general terms and provisions of such plans and programs. To the
extent such continued participation is not feasible, the Company shall
arrange to provide the Executive with substantially the same benefits as
those to which he or she would have been entitled to receive under such
plans and programs. All such medical and dental benefits shall be subject
to the group health plan continuation coverage requirements as provided in
Section 162(d) of the Internal revenue Code of 1986, as amended (The
"Code"). All such medical and dental benefits shall be discontinued upon
employment by the Executive with another company and the commencement of
coverage of the Executive pursuant to a long-term disability plan of such
new employer.
(c) Stock Options. In the event of a Change in Control, all outstanding
stock options, stock appreciation rights, restricted stock, performance
plan awards and performance shares granted by the Company to the Executive
under the Company's 1989 Long-Term Performance Plan shall become
immediately exercisable in full and otherwise vest 100% in accordance with
the subject to the provisions under Section 13 of such Long-Term
Performance Plan.
(d) Retirement Benefits.
(1) Defined Contribution Plans. The Company shall not use the
provisions of any defined contribution plan to deny a lump sum option
to the Executive unless this occurs under uniform treatment applicable
to all plan participants.
(2) Defined Benefit Plan. The Executive shall be entitled to continued
credit for years of service under the defined benefit plan of the
Company from the date of Termination through the Salary Continuance
Period, and any compensation paid to the Executive pursuant to
subsection 6(a) above shall be treated as salary compensation for
purposes of such plan. to the extent that such augmentation of the
defined benefit plan is not possible under such plan, the Company
shall pay the Executive an amount equal to the present value of such
augmentation, or arrange to provide the Executive with substantially
the same benefit.
(e) Certain Executive Reimbursement. The Company shall pay the Executive an
amount necessary to reimburse the Executive for all legal fees and expenses
incurred by the Executive as a result of the Change in Control of the
company and such termination of employment, including any fees and expenses
incurred in contesting or disputing any such termination or in seeking to
obtain or enforce any right or benefit provided by this Agreement;
provided, however, that
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the Company shall be obliged only to pay amounts necessary to reimburse the
Executive for legal fees and expense incurred by the Executive with respect
to any claim or claims made by him as to which he shall substantially
prevail in litigation relating thereto against the Company.
The payment provided for in subsection 6(a) hereof shall be subject to
applicable payroll or other tax required to be withheld by the Company. Payments
to the Executive hereunder shall be considered severance pay in consideration of
past service and his or her continued service after the date of this Agreement.
The payment provided for in subsection 6(d)(1) hereof shall be made to the
Executive within five (5) business days after he Date of Termination. The
Executive shall not be required to mitigate the amount of any payment provided
for in this Section 6 by seeking other employment or otherwise, and expect as
provided in subsection 6(b) above, the amount of any payment provided for in
this Section 6 shall not be reduced by any compensation earned by the Executive
as a result of employment by another employer after the Date of Termination, or
otherwise.
7. Limitation on Payments. If the severance payments provided for under this
Agreement, either alone or together with other payments which the Executive
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 be made in good
faith by the Executive and such determination shall be binding on the Company.
8. Successor; Binding Agreement
(a) The Company will require any successor (whether direct or indirect) by
purchase, merger, consolidation or otherwise, to all or substantially all of the
business or assets of the Company by agreement in form and substance
satisfactory to the Executive, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place.
(b) This Agreement shall insure to the benefit of and be enforceable by the
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees of the Executive. If the Executive should
die while any amount would be payable to the Executive hereunder if the
Executive had continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the
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terms of this Agreement to the devisee, legatee or other designee or, if there
be no such designee, to the estate of the Executive.
9. Notices. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by certified or
registered mail, return receipt requested, postage prepaid, addressed:
if to the Company: Secretary
Coeur d' Xxxxx Xxxxx Corporation
000 Xxxxx Xxxxxx
Xxxxx x' Xxxxx, XX 00000
if to the Executive:
or to such other address as either party may have furnished to the other in
writing in accordance herewith except the notice of change of address shall be
effective only upon receipt.
10. Miscellaneous. No provisions of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
signed by the Executive and on behalf of the Company by the President, the
chairman of the Board or such other officer as may be specifically designated by
the Board. No waiver by either party there of, or compliance with, any condition
or provision of this Agreement to be performed by such other party shall be
deemed a waiver of similar or dissimilar provisions or conditions at the time or
at any prior to subsequent time. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not expressly set forth in this Agreement.
This Agreement shall not supersede or in any way limit the rights, duties or
obligations the Executive may have under any other written agreement with the
Company. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Idaho.
11. Severability. The invalidity or unenforceability of any provisions of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
12. Arbitration. Any dispute or controversy arising under or in connection with
this Agreement shall be settled exclusively by arbitration in Coeur d' Alene,
Idaho in
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accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first-above written.
THE COMPANY COEUR D' XXXXX XXXXX CORPORATION
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Xxxxxx X. Xxxxxxx
Chairman, CEO & President
THE EXECUTIVE ________________________________
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