Exhibit 10.2
EMPLOYMENT AGREEMENT
AGREEMENT by and between Hecla Mining Company, a Delaware corporation (the
"Company") and XXXXXXXX X. XXXXX, XX. (the "Executive"), dated as of the 6th day
of November 2001.
The Board of Directors of the Company (the "Board"), has determined that it
is in the best interests of the Company and its shareholders to assure that the
Company will have the continued dedication of the Executive, notwithstanding the
possibility, threat or occurrence of a Change of Control (as defined below) of
the Company. The Board believes it is imperative to diminish the inevitable
distraction of the Executive by virtue of the personal uncertainties and risks
created by a pending or threatened Change of Control and to encourage the
Executive's full attention and dedication to the Company, and to the Company
currently and in the event of any threatened or pending Change of Control, and
to provide the Executive with compensation and benefits arrangements upon a
Change of Control which ensure that the compensation and benefits expectations
of the Executive will be satisfied and which are competitive with those of other
corporations. Therefore, in order to accomplish these objectives, the Board has
caused the company to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions.
(a) The "Effective Date" shall be the first date during the "Change of
Control Period" (as defined in Section 1(b)) on which a Change of Control
occurs. Anything in this Agreement to the contrary notwithstanding, if the
Executive's employment with the Company is terminated or the Executive ceases to
be an officer of the Company prior to the date on which a Change of Control
occurs, and it is reasonably demonstrated that such termination of employment
(1) was at the request of a third party who has taken steps reasonably
calculated to effect the Change of Control or (2) otherwise arose in connection
with or anticipation of the Change of Control, then for all purposes of this
Agreement the "Effective Date" shall mean the date immediately prior to the date
of such termination of employment.
(b) The "Change of Control Period" is the period commencing on the
date hereof and ending on June 1, 2003; provided, however, that commencing on
June 1, 2002, and on each subsequent anniversary of such date (each such
anniversary is hereinafter referred to as the "Renewal Date"), the Change of
Control Period shall be automatically extended so as to terminate three years
from such Renewal Date, unless at least 60 days prior to the Renewal Date the
Company shall give notice to the Executive that the Change of Control Period
shall not be so extended.
(c) The "Deemed Retirement Benefit" means the aggregate benefits that
would be payable to the Executive under the Hecla Mining Company Qualified
Retirement Plan and/or any successor defined benefit plan (the "Retirement
Plan") and any supplemental and/or excess retirement plans in which the
Executive participates (the "SERP"), assuming that (i) the Executive's age as of
the Date of Termination were increased by two years for purposes of calculating
the pension reduction but not for purposes of determining covered compensation
(as those terms are defined in the Retirement Plan), (ii) the Executive's
average annual earnings were calculated by assuming that the Executive had
continued to receive the compensation required by Section 4(b) of this Agreement
for two years, (iii) the Executive's years of service were increased by two
years, and (iv) the Executive's benefits under the Retirement Plan and the SERP
were fully vested.
(d) The "Actual Retirement Benefit" means the aggregate benefits that
actually are payable to the Executive under the Retirement Plan and the SERP as
of the Date of Termination, determined in accordance with the applicable terms
of the Retirement Plan and the SERP.
2. Change of Control. For the purpose of this Agreement, a "Change of
Control" shall mean:
(a) Any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) (a "Person") becomes the "beneficial owner" (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of
either (i) the then outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (ii) the combined voting power of the
then outstanding voting securities of the Company entitled to vote generally in
the election of directors (the "Outstanding Company Voting Securities");
provided, however, that for purposes of this Section 2(a), the following
acquisitions shall not constitute a Change of Control: (I) any acquisition
directly from the Company or approved by the Incumbent Directors, following
which such Person owns not more than 40% of the Outstanding Company Common Stock
or the Outstanding Company Voting Securities, (II) any acquisition by an
underwriter temporarily holding securities pursuant to an offering of such
securities, (III) any acquisition by the Company, (IV) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the Company
or any corporation controlled by the Company, or (V) any acquisition pursuant to
a transaction which complies with clauses (i), (ii) and (iii) of Section 2(c)
below; or
(b) Individuals who, as of the date hereof, constitute the Board
(the "Incumbent Directors") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at least a
majority of the Incumbent Directors then on the Board (either by a specific vote
or by approval of the proxy statement of the Company in which such person is
named as a nominee for director, without written objection to such nomination)
shall
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be considered as though such individual were an Incumbent Director, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board; or
(c) Consummation of a reorganization, merger or consolidation (or
similar corporate transaction) involving the Company or any of its subsidiaries,
a sale or other disposition of all or substantially all of the assets of the
Company, or the acquisition of assets or stock of another entity (a "Business
Combination"), in each case, unless, immediately following such Business
Combination, (i) more than 60% of, respectively, the then outstanding shares of
common stock and the total voting power of (A) the corporation resulting from
such Business Combination (the "Surviving Corporation"), or (B) if applicable,
the ultimate parent corporation that directly or indirectly has beneficial
ownership of 80% of the voting securities eligible to elect directors of the
Surviving Corporation (the "Parent Corporation"), is represented by Outstanding
Company Common Stock and Company Voting Securities that were outstanding
immediately prior to such Business Combination (or, if applicable, is
represented by shares into which such Outstanding Company Common Stock or
Outstanding Company Voting Securities, as the case may be, were converted
pursuant to such Business Combination), and such beneficial ownership of common
stock or voting power among the holders thereof is in substantially the same
proportion as the beneficial ownership of Outstanding Company Common Stock and
the voting power of such Company Voting Securities among the holders thereof
immediately prior to the Business Combination, (ii) no person (other than any
employee benefit plan (or related trust) sponsored or maintained by the
Surviving Corporation or the Parent Corporation), is or becomes the beneficial
owner, directly or indirectly, of 20% or more of the outstanding shares of
common stock and the total voting power of the outstanding voting securities
eligible to elect directors of the Parent Corporation (or, if there is no Parent
Corporation, the Surviving Corporation), unless such acquisition is pursuant to
a Business Combination that is an acquisition by the Company or a subsidiary of
the Company of the assets or Stock of another entity that is approved by the
Incumbent Directors, following which such person owns not more than 40% of such
outstanding shares and voting power, and (iii) at least a majority of the
members of the board of directors of the Parent Corporation (or, if there is no
Parent Corporation, the Surviving Corporation) following the consummation of the
Business Combination were Incumbent Directors at the time of the Board's
approval of the execution of the initial agreement providing for such Business
Combination; or
(d) Approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
Notwithstanding the foregoing, a Change of Control of the Company shall not be
deemed to occur solely because any person acquires beneficial ownership of more
than 20% of the Outstanding Company Common Stock or Outstanding Company Voting
Securities as a result of the acquisition of Outstanding Company Common Stock or
Outstanding Company Voting Securities by the Company which reduces the number of
shares of Outstanding Company Common Stock or Outstanding Company Voting
Securities; PROVIDED, that if after such
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acquisition by the Company such person becomes the beneficial owner of
additional shares of Outstanding Company Common Stock or Outstanding Company
Voting Securities that increases the percentage of Outstanding Company Common
Stock or Outstanding Company Voting Securities beneficially owned by such
person, a Change of Control of the Company shall then occur.
3. Employment Period. The Company hereby agrees to continue the Executive
in its employ for the period commencing on the Effective Date and ending on the
second anniversary of such date (the "Employment Period"). The Employment Period
shall terminate upon the Executive's termination of employment for any reason.
4. Terms of Employment.
(a) Position and Duties.
(i) During the Employment Period, (A) the Executive's position
(including status, offices, titles and reporting requirements), authority,
duties and responsibilities shall be at least commensurate in all material
respects with the most significant of those held, exercised and assigned at
any time during the 90-day period immediately preceding the Effective Date
and (B) the Executive's services shall be performed at the location where
the Executive was employed immediately preceding the Effective Date or any
office or location less than 35 miles from such location.
(ii) During the Employment Period, and excluding any periods of
vacation and sick leave to which the Executive is entitled, the Executive
agrees to devote reasonable attention and time during normal business hours
to the business and affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Executive hereunder, to use
the Executive's reasonable best efforts to perform faithfully and
efficiently such responsibilities. During the Employment Period it shall
not be a violation of this Agreement for the Executive to (A) serve on
corporate, civic or charitable boards or committees, (B) deliver lectures,
fulfill speaking engagements or teach at educational institutions and (C)
manage-personal investments, so long as such activities do not
significantly interfere with the performance of the Executive's
responsibilities as an employee of the Company in accordance with this
Agreement. It is expressly understood and agreed that to the extent that
any such activities have been conducted by the Executive prior to the
Effective Date, the continued conduct of such activities (or the conduct of
activities similar in nature and scope thereto) subsequent to the Effective
Date shall not thereafter be deemed to interfere with the performance of
the Executive's responsibilities to the Company.
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(b) Compensation.
(i) Base Salary. During the Employment Period, the Executive
shall receive an annual base salary ("Annual Base Salary"), which shall be
paid at a monthly rate, at least equal to twelve times the highest monthly
base salary paid or payable to the Executive by the Company and its
affiliated companies in respect of the twelve-month period immediately
preceding the month in which the Effective Date occurs. During the
Employment Period, the Annual Base Salary shall be reviewed at least
annually and shall be increased at any time and from time to time as shall
be substantially consistent with increases in base salary awarded in the
ordinary course of business to other peer executives of the Company and its
affiliated companies. Any increase in Annual Base Salary shall not serve to
limit or reduce any other obligation to the Executive under this Agreement.
Annual Base Salary shall not be reduced after any such increase and the
term Annual Base Salary as utilized in this Agreement shall refer to Annual
Base Salary as so increased. As used in this Agreement, the term
"affiliated companies;" includes any company controlled by, controlling or
under common control with the Company.
(ii) Annual Bonus. In addition to Annual Base Salary, the
Executive shall be awarded, for each fiscal year beginning or ending during
the Employment Period, an annual bonus (the "Annual Bonus") in cash at
least equal to the highest bonus paid or payable, including by reason of
deferral, to the Executive by the Company and its affiliated companies in
respect of the three fiscal years immediately preceding the fiscal year in,
which the Effective Date occurs (annualized for any fiscal year during the
Employment Period consisting of less than twelve full, months or with
respect to which the Executive has been employed by the Company for less
than twelve full months) (the "Recent Annual Bonus"). Each such Annual
Bonus shall be paid no later than the end of the third month of the fiscal
year next following the fiscal year for which the Annual Bonus is awarded,
unless the Executive shall elect to defer the receipt of such Annual Bonus.
(iii) Incentive, Savings and Retirement Plans. In addition to
Annual Base salary and Annual Bonus payable as hereinabove provided, the
Executive shall be entitled to participate during the Employment Period in
all incentive, savings and retirement plans, practices, policies and
programs applicable generally to other peer executives of the Company and
its affiliated companies, but in no event, shall such plans, practices,
policies and programs provide the Executive with incentive, savings and
retirement benefit opportunities, in each case, less favorable, in the
aggregate, than (x) the most favorable of those provided by the Company and
its affiliated companies for the Executive under such plans, practices,
policies and programs as in effect at any time during the 90-day period
immediately preceding the Effective Date of (y) if more favorable to the
Executive, those provided at any time after the Effective Date to other
peer executives of the Company and its affiliated companies.
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(iv) Welfare Benefit Plans. During the Employment Period, the
Executive and/or the Executive's family, as the case may be, shall be
eligible for participation in and shall receive all benefits under welfare
benefit plans, practices, policies and programs provided by the Company and
its affiliated companies (including, without limitation, medical,
prescription, dental, disability, salary continuance, employee life, group
life, accidental death and travel accident insurance plans and programs) to
the extent generally applicable to other peer executives of the Company and
its affiliated companies, but in no event shall such plans, practices,
policies and programs provide the Executive with benefits which are less
favorable, in the aggregate, than (x) the most favorable of such plans,
practices, policies and programs in effect for the Executive at any time
during the 90-day period immediately preceding the Effective Date or (y) if
more favorable to the Executive, those provided at any time after the
Effective Date generally to other peer executives of the Company and its
affiliated companies.
(v) Expenses. During the Employment Period, the Executive shall
be entitled to receive prompt reimbursement for all reasonable expenses
incurred by the Executive in accordance with the most favorable policies,
practices and procedures of the Company and its affiliated companies in
effect for the Executive at any time during the 90-day period immediately
preceding the Effective Date or, if more favorable to the Executive, as in
effect generally at any time thereafter with respect to other peer
executives of the Company and its affiliated companies.
(vi) Fringe Benefits. During the Employment Period, the Executive
shall be entitled to fringe benefits in accordance with the most favorable
plans, practices, programs and policies of the company and its affiliated
companies in effect for the Executive at any time during the 90-day period
immediately preceding the Effective Date or, if more favorable to the
Executive, as in effect generally at any time thereafter with respect to
other peer executives of the Company and its affiliated companies.
(vii) Office and Support Staff. During the Employment Period, the
Executive shall be entitled to an office or offices of a size and with
furnishings and other appointments, and to exclusive personal secretarial
and other assistance, at least equal to the most favorable of the foregoing
provided to the Executive by the Company and its affiliated companies at
any time during the 90-day period immediately preceding the Effective Date
or, if more favorable to the Executive, as provided generally at any time
thereafter with respect to other peer executives of the Company and its
affiliated companies.
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(viii) Vacation. During the Employment Period, the Executive
shall be entitled to paid vacation in accordance with the most favorable
plans, policies, programs and practices of the Company and its affiliated
companies as in effect at any time during the 90-day period immediately
preceding the Effective Date or, if more favorable to the Executive, as in
effect generally at any time thereafter with respect to other peer
incentives of the Company and its affiliated companies.
5. Termination of Employment.
(a) Death or Disability. The Executive's employment shall terminate
automatically upon the Executive's death during the Employment Period. If the
Company determines in good faith that the Disability of the Executive has
occurred during the Employment Period (pursuant to the definition of Disability
set forth below), it may give to the Executive written notice in accordance with
Section 12(b) of this Agreement of its, intention to terminate the Executive's
employment. In such event, the Executive's employment with the Company shall
terminate effective on the 30th day after receipt of such notice by the
Executive (the "Disability Effective Date"), provided that, within the 30 days
after such receipt, the Executive shall not have returned to full-time
performance of the Executive's duties. For purposes of this Agreement,
"Disability" means the absence of the Executive from the Executive's duties with
the Company on a fulltime basis for 180 consecutive business days as a result of
incapacity due to mental or physical illness which is determined to be total and
permanent by a physician selected by the Company or its insurers and acceptable
to the Executive or the Executive's legal representative (such agreement. as to
acceptability not to be withheld unreasonably).
(b) Cause. The Company may terminate the Executive's employment
during the Employment Period for Cause. For purposes of this Agreement, "Cause"
means:
(i) the willful and continued failure of the Executive to
perform substantially the Executive's duties (as contemplated by Section
4(a)) with the Company or any affiliated company (other than any such
failure resulting from incapacity due to physical or mental illness or
following the Executive's delivery of a Notice of Termination for Good
Reason), after a written demand for substantial performance is delivered to
the Executive by the Board or the Chief Executive Officer of the Company
that specifically identifies the manner in which the Board or the Chief
Executive Officer of the Company believes that the Executive has not
substantially performed the Executive's duties, or
(ii) the willful engaging by the Executive in illegal conduct or
gross misconduct that is materially and demonstrably injurious to the
Company.
For purposes of this Section 5(b), no act, or failure to act, on the part of the
Executive shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith and without reasonable belief that the
Executive's action or omission was in the best interests of the Company. Any
act, or failure to act, based upon authority given
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pursuant to a resolution duly adopted by the Board or upon the instructions of
the Chief Executive Officer of the Company or a senior officer of the Company or
based upon the advice of counsel for the Company shall be conclusively presumed
to be done, or omitted to be done, by the Executive in good faith and in the
best interests of the Company. The cessation of employment of the Executive
shall not be deemed to be for Cause unless and until there shall have been
delivered to the Executive a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters of the entire membership of the
Board (excluding the Executive if the Executive is a member of the Board) at a
meeting of the Board called and held for such purpose (after reasonable notice
is provided to the Executive and the Executive is given an opportunity, together
with counsel for the Executive, to be heard before the Board), finding that, in
the good faith opinion of the Board, the Executive is guilty of the conduct
described in Section 5(b)(i) or 5(b)(ii), and specifying the particulars thereof
in detail.
(c) Good Reason. The Executive's employment may be terminated during
the Employment Period by the Executive for Good Reason or by the Executive
voluntarily without Good Reason. For purposes of this Agreement, "Good Reason"
means:
(i) the assignment to the Executive of any duties inconsistent
in any respect with the Executive's position (including status, offices,
titles and reporting requirements), authority, duties or responsibilities
as contemplated by Section 4(a) of this Agreement, or any other diminution
in such position, authority, duties or responsibilities (whether or not
occurring solely as a result of the Company's ceasing to be a publicly
traded entity), excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by the Executive;
(ii) any failure by the Company to comply with any of the
provisions of Section 4(b) of this Agreement, other than an isolated,
insubstantial and inadvertent failures not occurring in bad faith and which
is remedied by the Company promptly after receipt of notice thereof given
by the Executive;
(iii) the Company's requiring the Executive to be based at any
office or location other than that described in Section 4(a)(i)(B) hereof,
or the Company's requiring the Executive to travel on Company business to a
substantially greater extent than required immediately prior to the
Effective Date;
(iv) any purported termination by the Company of the Executive's
employment otherwise than as expressly permitted by this Agreement; or
(v) any failure by the Company to comply with and satisfy
Section 11(c) of this Agreement.
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For purposes of this Agreement, any good faith determination of Good Reason
made by the Executive shall be conclusive. Anything in this Agreement to the
contrary notwithstanding, a termination by the Executive for any reason pursuant
to a Notice of Termination given during the 30-day period immediately following
the first anniversary of the Effective Date shall be deemed, to be a termination
for Good Reason for all purposes of this Agreement. The Executive's mental or
physical incapacity following the occurrence of an event described above in
clauses (i) through (v) shall not affect the Executive's ability to terminate
employment for Good Reason.
(d) Notice of Termination. Any termination by the Company for Cause
or by the Executive for Good Reason shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 12(b) of
this Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provision so indicated and (iii) if the
Date of Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be not more than
fifteen days after the giving of such notice). In the case of a termination of
the Executive's employment for Cause, a Notice of Termination shall include a
copy of a resolution duly adopted by the affirmative vote of not less than
three-quarters of the entire membership of the Board at a meeting of the Board
called and held for the purpose (after reasonable notice to the Executive and
reasonable opportunity for the Executive, together with the Executive's counsel,
to be heard before the Board prior to such vote), finding that in the good faith
opinion of the Board the Executive was guilty of conduct constituting Cause. No
purported termination of the Executive's employment for Cause shall be effective
without a Notice of Termination. The failure by the Executive to set forth in
the Notice of Termination any fact or circumstance which contributes to a
showing of Good Reason shall not waive any right of the Executive hereunder or
preclude the Executive from asserting such fact or circumstance in enforcing the
Executive's rights hereunder.
(e) Date of Termination. "Date of Termination" means the date of
receipt of the Notice of Termination or any later date specified therein (which
date shall be not more than 30 days after the giving of such notice), as the
case may be; provided, however, that (i) if the Executive's employment is
terminated by the Company other than for Cause or Disability, the Date of
Termination shall be the date on which the Company notifies the Executive of
such termination and (ii) if the Executive's employment is terminated by reason
of death or Disability, the Date of Termination shall be the date of death of
the Executive or the Disability Effective Date, as the case may be.
6. Obligations of the Company upon Termination.
(a) Death. If the Executive's employment is terminated by reason of
the Executive's death during the Employment Period, this Agreement shall
terminate without further obligations to the Executive's legal representatives
under this Agreement, other than the following obligations: (i) payment of the
Executive's Annual Base Salary
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through the Date of Termination to the extent not theretofore paid, (ii) payment
of the product of (x) the greater of (A) the Annual Bonus paid or payable,
including by reason of deferral, (and annualized for any fiscal year consisting
of less than twelve full months or for which the Executive has been employed for
less than twelve full months) for the most recently completed fiscal year during
the Employment Period, if any, and (B) the Recent Annual Bonus (such greater
amount hereafter referred to as the "Highest Annual Bonus") and a fraction, the
numerator of which is the number of days in the current fiscal year through the
Date of Termination, and the denominator of which is 365 and (iii) payment of
any compensation previously deferred by the Executive (together with any accrued
interest thereon) and not yet paid by the Company and any accrued vacation pay
not yet paid by the Company (the amounts described in paragraphs (i), (ii) and
(iii) are hereafter referred to as "Accrued Obligations"). All Accrued
Obligations shall be paid to the Executive's estate or beneficiary, as
applicable, in a lump sum in cash within 30 days of the Date of Termination. In
addition, the Executive's estate or designated beneficiaries shall be entitled
to receive the Executive's Annual Base Salary for the balance of the Employment
Period. Anything in this Agreement to the contrary notwithstanding, the
Executive's estate and family shall be entitled to receive benefits at least
equal to the most favorable benefits provided generally by the Company and any
of its affiliated companies to the estates and surviving families of peer
executives of the Company and such affiliated under such plans, programs,
practices and policies relating to death benefits, if any, as in effect
generally with respect to other peer executives and their estate and families at
any time during the 90-day period immediately preceding the Effective Date or,
if more favorable to the Executive and/or the Executive's family, as in effect
on the date of the Executive's death generally with respect to other peer
executives of the Company and its affiliated companies and their families.
(b) Disability. If the Executive's employment is terminated by reason
of the Executive's Disability during the Employment period, this Agreement shall
terminate without further obligations to the Executive, other than for Accrued
Obligations. All Accrued Obligations shall be paid to the Executive in a lump
sum in cash within 30 days of the Date of Termination. In addition, the
Executive shall be entitled to receive the Executive's Annual Base Salary for
the balance of the Employment Period; provided, however, that such payments of
Annual Base Salary shall be reduced by any benefits paid to the Executive under
the Retirement Plan by reason of Disability. Anything in this Agreement to the
contrary notwithstanding, the Executive shall be entitled after the Disability
Effective Date to receive disability and other benefits at least equal to the
most favorable of those generally provided by the Company and its affiliated
companies to disable executives and/or their families in accordance with such
plans, programs, practices and policies relating to disability, if any, as in
effect generally with respect to other peer executives and their families at any
time during the 90-day period immediately preceding the Effective Date or, if
more favorable to the Executive and/or the Executive's family, as in effect at
any time thereafter generally with respect to other peer executives of the
Company and its affiliated companies and their families.
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(c) Cause; other than for Good Reason. If the Executive's employment
shall be terminated for Cause during the Employment Period, this Agreement shall
terminate without further obligations to the Executive other than the obligation
to pay the Executive Annual Base Salary through the Date of Termination plus the
amount of any compensation previously deferred by the Executive, in each case to
the extent theretofore unpaid. If the Executive terminates employment during the
Employment Period other than for Good Reason, this Agreement shall terminate
without further obligations to the Executive, other than for Accrued
Obligations. In such case, all Accrued Obligations shall be paid to the
Executive in a lump sum in cash within 30 days of the Date of Termination.
(d) Good Reason; Other Than for Cause or Disability. If, during the
Employment Period, the Company shall terminate the Executive's employment other
than for Cause or Disability, or if the Executive shall terminate employment
under this Agreement for Good Reason:
(i) the Company shall pay, to the Executive in a lump sum in
cash within 30 days after the Date of Termination the aggregate of the
following amounts:
A. all Accrued Obligations; and
B. the product of (x) two and (y) the sum of (i) Annual
Base Salary and (ii) the Highest Annual Bonus; and
C. a lump-sum retirement benefit equal to the excess of
(a) the actuarial equivalent of the Deemed Retirement Benefit over (b)
the actuarial equivalent of the Executive's Actual Retirement Benefit;
and for purposes of determining the amount payable pursuant to this
Section 5(d)(i)C, the actuarial assumptions utilized shall be no less
favorable to the Executive than those in effect with respect to the
Retirement Plan and the SERP during the 90-day period immediately
prior to the Effective Date; and
(ii) for two additional years, or such longer period as any plan,
program, practice or policy may provide, the Company shall continue
benefits to the Executive and/or the Executive's family at least equal to
those which would have been provided to them in accordance with the plans,
programs, practices and policies described in Section 4 (b) (iv) of this
Agreement if the Executive's employment had not been terminated in
accordance with the most favorable plans, practices, programs or policies
of the Company and its affiliated companies applicable generally to other
peer executives and their families during the 90-day period immediately
preceding the Effective Date or, if more favorable to the Executive, as in
effect generally at any time thereafter with respect to other peer
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executives of the Company and its affiliated companies and their families;
and for purposes of determining eligibility of the Executive for retiree
benefits pursuant to such plans, practices, programs and policies, the
Executive shall be considered to have remained employed for two additional
years, and to have then retired; and
(iii) the Company shall, at its sole expense as incurred, provide the
Executive with outplacement services the scope and provider of which shall
be selected by the Executive in the Executive's sole discretion; provided,
that the cost of such outplacement shall not exceed $20,000; and
(iv) to the extent not theretofore paid or provided, the Company shall
timely pay or provide to the Executive any other amounts or benefits
required to be paid or provided or that the Executive is eligible to
receive under any plan, program, policy or practice or contract or
agreement of the Company and the Affiliated Companies.
Notwithstanding the provisions of clause (ii) of this Section 6(d), if after
using its reasonable best efforts to obtain life insurance, long-term disability
or travel accident insurance coverage for the Executive as required by said
clause (ii) at the lowest available rates, the Company is unable to obtain such
coverage for an aggregate annual cost to the Company of not more than two
percent of the Annual Base Salary, the Executive shall be required to elect to
either (i) waive one or more of such coverages, or (ii) have the amount or
duration of one or more of such coverages reduced, in either case so as to
reduce such aggregate annual cost to not more than two percent of the Annual
Base Salary. If any of such coverages cannot be obtained, or if the Executive
elects to waive any of such coverages as provided in the preceding sentence,
then the Company shall pay the Executive cash in lieu thereof, in the amount of
two-thirds of one percent of the Annual Base Salary for each such coverage that
is not provided.
7. Non-exclusivity of Rights. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation in any
benefit, bonus, incentive or other plans, programs, policies or practices,
provided by the Company or any of its affiliated companies and for which the
Executive may qualify, nor shall anything herein limit or otherwise affect such
rights as the Executive may have under any other agreements with the Company or
any of its affiliated companies. Amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan, policy, practice or
program of the Company or any of its affiliated companies at or subsequent to
the Date of Termination shall be payable in accordance with such plan, policy,
practice or program except as explicitly modified by this Agreement.
Notwithstanding the foregoing, if the Executive receives payments and benefits
pursuant to Section 6(d) of this Agreement, the Executive shall not be entitled
to any severance pay or benefits under any severance plan, program or policy of
the Company and the affiliated companies, unless otherwise specifically provided
therein in a specific reference to this Agreement.
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8. Full Settlement. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any setoff, counterclaim, recoupment, defense
or other claim, right or action which the Company may have against the Executive
or others. In no event shall the Executive be obligated to seek other employment
or take any other action by way of mitigation of the amounts payable to the
Executive under any of the provisions of this Agreement. The Company agrees to
pay, to the full extent permitted by law, all legal fees and expenses which the
Executive may reasonably incur as a result of any contest (regardless of the
outcome thereof) by the Company, the Executive or others of the validity or
enforceability of, or liability under, any provision of this Agreement or any
guarantee of performance thereof (including as a result of any contest by the
Executive about the amount of any payment pursuant to Section 9 of this
Agreement), plus in each case interest at the applicable Federal rate provided
for in section 7872(f)(2) of the Internal Revenue Code of 1986, as amended (the
"Code").
9. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary notwithstanding
and except as set forth below, in the event it shall be determined that any
Payment would be subject to the Excise Tax, then the Executive shall be
entitled to receive an additional payment (the "Gross-Up Payment") in an
amount such that, after payment by the Executive of all taxes (and any
interest or penalties imposed with respect to such taxes), including,
without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up
Payment, the Executive retains an amount of the Gross-Up Payment equal to
the Excise Tax imposed upon the Payments. Notwithstanding the foregoing
provisions of this Section 9(a), if it shall be determined that the
Executive is entitled to the Gross-Up Payment, but that the Parachute Value
of all Payments do not exceed 110% of the Safe Harbor Amount, then no
Gross-Up Payment shall be made to the Executive and the amounts payable
under this Agreement shall be reduced so that the Parachute Value of all
Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of
the amounts payable hereunder, if applicable, shall be made by first
reducing the payments under Section 6(d)(i), unless an alternative method
of reduction is elected by the Executive, and in any event shall be made in
such a manner as to maximize the Value of all Payments actually made to the
Executive. For purposes of reducing the Payments to the Safe Harbor Amount,
only amounts payable under this Agreement (and no other Payments) shall be
reduced. If the reduction of the amount payable under this Agreement would
not result in a reduction of the Parachute Value of all Payments to the
Safe Harbor Amount, no amounts payable under the Agreement shall be reduced
pursuant to this Section 9(a). The Company's obligation to make Gross-Up
Payments under this Section 9 shall not be conditioned upon the Executive's
termination of employment.
(b) Subject to the provisions of Section 9(c), all
determinations required to be made under this Section 9, including whether
and when a Gross-Up Payment is required, the amount of such Gross-Up
Payment and the assumptions to be utilized in arriving at such
determination, shall be made by PricewaterhouseCoopers or such other
nationally recognized certified public accounting firm as may be designated
by
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the Executive (the "Accounting Firm"). The Accounting Firm shall provide
detailed supporting calculations both to the Company and the Executive
within 15 business days of the receipt of notice from the Executive that
there has been a Payment or such earlier time as is requested by the
Company. In the event that the Accounting Firm is serving as accountant or
auditor for the individual, entity or group effecting the Change of
Control, the Executive may appoint another nationally recognized accounting
firm to make the determinations required hereunder (which accounting firm
shall then be referred to as the Accounting Firm hereunder). All fees and
expenses of the Accounting Firm shall be borne solely by the Company. Any
Gross-Up Payment, as determined pursuant to this Section 9, shall be paid
by the Company to the Executive within 5 days of the receipt of the
Accounting Firm's determination. Any determination by the Accounting Firm
shall be binding upon the Company and the Executive. As a result of the
uncertainty in the application of Section 4999 of the Code at the time of
the initial determination by the Accounting Firm hereunder, it is possible
that Gross-Up Payments that will not have been made by the Company should
have been made (the "Underpayment"), consistent with the calculations
required to be made hereunder. In the event the Company exhausts its
remedies pursuant to Section 9(c) and the Executive thereafter is required
to make a payment of any Excise Tax, the Accounting Firm shall determine
the amount of the Underpayment that has occurred and any such Underpayment
shall be promptly paid by the Company to or for the benefit of the
Executive.
(c) The Executive shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would require
the payment by the Company of the Gross-Up Payment. Such notification shall
be given as soon as practicable, but no later than 10 business days after
the Executive is informed in writing of such claim. The Executive shall
apprise the Company of the nature of such claim and the date on which such
claim is requested to be paid. The Executive shall not pay such claim prior
to the expiration of the 30-day period following the date on which the
Executive gives such notice to the Company (or such shorter period ending
on the date that any payment of taxes with respect to such claim is due).
If the Company notifies the Executive in writing prior to the expiration of
such period that the Company desires to contest such claim, the Executive
shall:
(i) give the Company any information reasonably requested
by the Company relating to such claim,
(ii) take such action in connection with contesting such
claim as the Company shall reasonably request in writing from time to
time, including, without limitation, accepting legal representation
with respect to such claim by an attorney reasonably selected by the
Company,
(iii) cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) permit the Company to participate in any proceedings
relating to such claim;
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PROVIDED, HOWEVER, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest, and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties) imposed as a result of such representation and payment of costs and
expenses. Without limitation on the foregoing provisions of this Section 9(c),
the Company shall control all proceedings taken in connection with such contest,
and, at its sole discretion, may pursue or forgo any and all administrative
appeals, proceedings, hearings and conferences with the applicable taxing
authority in respect of such claim and may, at its sole discretion, either
direct the Executive to pay the tax claimed and xxx for a refund or contest the
claim in any permissible manner, and the Executive agrees to prosecute such
contest to a determination before any administrative tribunal, in a court of
initial jurisdiction and in one or more appellate courts, as the Company shall
determine; PROVIDED, HOWEVER, that, if the Company directs the Executive to pay
such claim and xxx for a refund, the Company shall advance the amount of such
payment to the Executive, on an interest-free basis, and shall indemnify and
hold the Executive harmless, on an after-tax basis, from any Excise Tax or
income tax (including interest or penalties) imposed with respect to such
advance or with respect to any imputed income in connection with such advance;
and PROVIDED, FURTHER, that any extension of the statute of limitations relating
to payment of taxes for the taxable year of the Executive with respect to which
such contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control of the contest shall be limited to
issues with respect to which the Gross-Up Payment would be payable hereunder,
and the Executive shall be entitled to settle or contest, as the case may be,
any other issue raised by the Internal Revenue Service or any other taxing
authority.
(d) If, after the receipt by the Executive of an amount advanced by
the Company pursuant to Section 9(c), the Executive becomes entitled to receive
any refund with respect to such claim, the Executive shall (subject to the
Company's complying with the requirements of Section 9(c)) promptly pay to the
Company the amount of such refund (together with any interest paid or credited
thereon after taxes applicable thereto). If, after the receipt by the Executive
of an amount advanced by the Company pursuant to Section 9(c), a determination
is made that the Executive shall not be entitled to any refund with respect to
such claim and the Company does not notify the Executive in writing of its
intent to contest such denial of refund prior to the expiration of 30 days after
such determination, then such advance shall be forgiven and shall not be
required to be repaid and the amount of such advance shall offset, to the extent
thereof, the amount of Gross-Up Payment required to be paid.
(e) Notwithstanding any other provision of this Section 9, the
Company may, in its sole discretion, withhold and pay over to the Internal
Revenue Service or any other applicable taxing authority, for the benefit of the
Executive, all or any portion of the Gross-Up Payment, and the Executive hereby
consents to such withholding.
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(f) Definitions. The following terms shall have the following
meanings for purposes of this Section 9.
(i) "Excise Tax" shall mean the excise tax imposed by Section
4999 of the Code, together with any interest or penalties imposed with
respect to such excise tax.
(ii) The "Net After-Tax Amount" of a Payment shall mean the Value
of a Payment net of all taxes imposed on the Executive with respect thereto
under Sections 1 and 4999 of the Code and applicable state and local law,
determined by applying the highest marginal rates that are expected to
apply to the Executive's taxable income for the taxable year in which the
Payment is made.
(iii) "Parachute Value" of a Payment shall mean the present value
as of the date of the change of control for purposes of Section 280G of the
Code of the portion of such Payment that constitutes a "parachute payment"
under Section 280G(b)(2), as determined by the Accounting Firm for purposes
of determining whether and to what extent the Excise Tax will apply to such
Payment.
(iv) A "Payment" shall mean any payment or distribution in the
nature of compensation (within the meaning of Section 280G(b)(2) of the
Code) to or for the benefit of the Executive, whether paid or payable
pursuant to this Agreement or otherwise.
(v) The "Safe Harbor Amount" means the maximum Parachute Value
of all Payments that the Executive can receive without any Payments being
subject to the Excise Tax.
(vi) "Value" of a Payment shall mean the economic present value
of a Payment as of the date of the change of control for purposes of
Section 280G of the Code, as determined by the Accounting Firm using the
discount rate required by Section 280G(d)(4) of the Code.
10. Confidential Information. The Executive shall hold in a fiduciary
capacity for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company or any of its affiliated companies,
and their respective businesses, which shall have been obtained by the Executive
during the Executive's employment by the Company or any of its affiliated
companies and which shall not be or become public knowledge (other than by acts
by the Executive or representatives of the Executive in violation of this
Agreement). After termination of the Executive's employment with the Company,
the Executive shall not, without the prior written consent of the Company,
communicate or divulge any such information, knowledge or data to anyone other
than the Company and those designated by it. In no event shall an asserted
violation of the provisions of this Section 10 constitute a basis for deferring
or withholding any amounts otherwise payable to the Executive under this
Agreement.
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11. Successors.
(a) This Agreement is personal to the Executive and without the prior
written consent of the Company shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns. Except as provided in Section 11(c),
without the prior written consent of the Executive, this Agreement shall not be
assignable by the Company.
(c) The Company will require any successor (whether director or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly 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. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
12. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without reference to principles of
conflict of laws. The captions of this Agreement are not part of the provisions
hereof and shall have no force or effect. This Agreement may not be amended or
modified otherwise than by a written agreement executed by the parties hereto or
their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt. requested, postage prepaid, addressed as
follows:
If to the Executive:
--------------------
Xxxxxxxx X. Xxxxx, Xx.
Hecla Mining Company
0000 Xxxxxxx XxxxxXxxxx x'Xxxxx, Xxxxx 00000-0000
If to the Company:
------------------
Hecla Mining Company
0000 Xxxxxxx Xxxxx
Xxxxx x'Xxxxx, Xxxxx 00000-0000
Attention: Chief Executive Officer
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With a copy to:
--------------
Vice President - General Counsel
Hecla Mining Company
0000 Xxxxxxx Xxxxx
Xxxxx x'Xxxxx, Xxxxx 00000-0000
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(d) The Company may withhold from any amounts payable under this
Agreement such Federal, state or local taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
(e) The Executive's failure to insist upon strict compliance with any
provision hereof or the failure to assert any right the Executive may have
hereunder, including, without limitation, the right to terminate employment for
Good Reason pursuant to Section 5(c)(i) - (v), shall not be deemed to be a
waiver of such provision or right or any other provision or right thereof.
(f) The Executive and the Company acknowledge that, except as may
otherwise be provided under any other written agreement between the Executive
and the Company, the employment of the Executive by the Company is "at will"
and, subject to Section 1(a), prior to the Effective Date, the Executive's
employment may be terminated by either the Executive or the Company at any time
prior to the Effective Date, in which case the Executive shall have no further
rights under this Agreement. From and after the Effective Date, this Agreement
shall supersede any other agreement between the parties with respect to the
subject matter hereof.
IN WITNESS WHEREOF, the Executive has hereunder set the Executive's
hand and, pursuant to the authorization from its Board of Directors, the Company
has caused these presents to be executed in its name on its behalf, all as of
the day and year first above written.
EXECUTIVE HECLA MINING COMPANY
By:
--------------------------- ----------------------
XXXXXXXX X. XXXXX, XX. XXXXXX XXXXX
Chairman and CEO
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