Separation and Release of Claims Agreement dated September 7, 2021, between Coeur Mining, Inc. and Terrence F. Smith
EX-10.1 2 terrysmithseparationagreema.htm EX-10.1 Document
SEPARATION AND RELEASE OF CLAIMS AGREEMENT
THIS SEPARATION AND RELEASE OF CLAIMS AGREEMENT (this “Agreement”) is entered into by and between Terrence Smith (“Employee” or “You”) and Coeur Mining, Inc. (“Company”).
A.Employee has been employed by the Company. Employee’s employment is terminated effective August 27, 2021 (the “Separation Date”).
B.Employee and Company desire to resolve any and all disputes that may exist, whether known or unknown, between them, including, but not limited to, disputes relating to Employee’s employment with the Company and the termination of that employment relationship.
C. Company has an Officer Severance Policy under which Employee is entitled to certain severance benefits upon termination of employment in exchange for a full release of claims and other obligations.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, You and Company agree as follows:
1.Effective Date. This Agreement is effective on the eighth day following the Employee signing this Agreement (the “Effective Date”), provided that You do not revoke your execution of this Agreement as provided in Paragraph 3 below.
2.Consideration Period. Employee is hereby given 21 days from receipt of this Agreement in which to consider and consult with an attorney regarding this Agreement. The Company hereby advises You to consult with an attorney before signing this Agreement.
3.Revocation Period. Employee has seven (7) days from the date on which You sign this Agreement to revoke this Agreement by providing written notice (by fax, mail, or hand delivery or electronic mail) of Your revocation to:
Emilie Schouten, Senior Vice President, Human Resources
Coeur Mining, Inc.
104 S. Michigan Avenue Suite 900
Chicago, IL 60603
Fax: (312) 489-5898
4.Termination of Employment. Your employment with the Company terminates effective on the Separation Date
5.Separation Assistance. Upon signing, returning and not revoking and Company countersigning this Agreement, You will receive the payments and/or benefits described below, subject to Section 5(e):
(a)Severance. In consideration for Your promises and covenants contained in this Agreement, Company agrees to provide You severance equal to twelve (12) months of pay in the gross amount of US$350,000 (“Severance Payment”) subject to statutory and elective deductions and withholdings. This Severance Payment will be paid in twelve (12) equal monthly installments beginning on the Separation Date and, except as expressly provided in this Agreement, includes, but is not limited to, any severance, bonus or other payment to which You may otherwise be entitled to from the Company through the Separation Date. In other words, except as expressly provided in this Agreement, this is the entire amount You will receive from the Company, and You agree that You are not entitled to any other payments except as stated herein.
(b)Health Insurance. In consideration for Your promises and covenants contained in this Agreement, Company agrees to subsidize the cost of health insurance benefits through Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) coverage by covering the employer paid portion of Your COBRA election for continuation of Your medical coverage for up to six (6) months after your medical coverage ends due to the termination of your employment. If You wish to enroll in COBRA continuation medical coverage, You must complete all paperwork necessary to elect COBRA coverage. You understand that this will not be done by the Company. If You fail to elect COBRA coverage or make a payment, the Company has no further duties with respect to health insurance. Under federal law, COBRA coverage normally lasts no more than a maximum of 18 months or until you become covered by new health care coverage.
(c)Other Benefits or Payments. Except as expressly provided in (a) or (b) above, no other benefits or payments will be provided to You as part of this Agreement or otherwise in connection with the termination of Your employment. Any other benefits to which You may be entitled will be governed by the terms of the appropriate benefit plans or applicable law.
(d)Acknowledgment. You acknowledge that the payments and benefits provided for in this Agreement exceed those which You would normally receive upon termination of the employment relationship in this situation and that such additional payments and benefits are in exchange for You signing this Agreement.
(e)Taxes. Company does not make any representations and is not providing any advice regarding the taxation of the payments described in this Agreement, including, but not limited to taxes, interest, and penalties under Section 409A of the Internal Revenue Code and liabilities under state tax laws (together, “Tax Liabilities”). No indemnification or gross-up is payable under this Agreement with respect to any such Tax Liabilities. You agree to release the Company from any and all claims related to Your Tax Liabilities and hold the Company harmless in the event of any claims made against You related to such Tax Liabilities.
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(a)General Release. In exchange for the compensation, payments, benefits, promises and other consideration provided to You under this Agreement, to the fullest extent permitted by law, You for yourself, your successors, heirs and assigns, hereby forever release and discharge the Company and Releasees (as defined below) from any and all claims, grievances, injuries, causes of action, suits, arbitrations, wages, attorneys’ fees, costs, damages, promises, contracts or liabilities whatsoever, in law or in equity, whether known or unknown or suspected to exist by You, which You have had or may now have against Company or Releasees, including, but not limited to, any arising from or connected in any way with Your employment with Company or the termination of that employment. Without limiting the generality of the foregoing, this waiver and release includes any claim or right based upon any federal, state, or local employment practices or laws including, but not limited to: The Age Discrimination in Employment Act (ADEA), Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act (ADA), the Older Workers’ Benefits Protection Act, the Rehabilitation Act of 1973, the Worker Adjustment and Retraining Notification Act (WARN), the Equal Pay Act, the Family and Medical Leave Act of 1993 (FMLA), the Employee Retirement Income Security Act (ERISA), the Illinois Human Rights Act, the Right to Privacy in the Workplace Act, the Illinois Health and Safety Act, the Illinois WARN Act, the Illinois One Day Rest in Seven Act, the Illinois Union Employee Health and Benefits Protection Act, the Illinois Employment Contract Act, the Illinois Labor Dispute Act, the Victims' Economic Security and Safety Act, the Illinois Whistleblower Act and amendments to those laws as well as any claims under local statutes and ordinances that may be legally waived and released and/or any other federal, state or local laws dealing with employment claims, practices, discrimination, wrongful discharge, or breach of contract. Without limiting the generality of the foregoing, You hereby acknowledge and covenant that You have knowingly relinquished and forever release any and all remedies which might otherwise be available to You, including claims for back pay, liquidated damages, recovery of interest, costs, punitive damages or attorneys’ fees, and any claims for employment or re-employment with Company.
(b)Releasees. For purposes of this Agreement, the term “Releasees” includes the Company and the Company’s parents, subsidiaries, affiliates, related companies, partnerships and joint ventures, predecessors, successors and assigns, and with respect to each such entity, all of its past and present employees, officers, directors, shareholders, owners, representatives, agents, attorneys, assigns, insurers, employee benefits plans and such plans’ administrators, fiduciaries, trustees, assigns and agents, and each of its and their respective successors and assigns, each and all of them in their personal and representative capacities, and any other persons or entities acting on behalf of any of these persons or entities.
(c)Exceptions. Nothing in this Agreement constitutes a release or waiver by You, or prevents You from making or asserting: (i) any claim or right under COBRA; (ii) any claim or right for unemployment insurance or workers’ compensation benefits; (iii) any claim to vested benefits under the written terms of a qualified employee pension or retirement benefit plan; and (iv) any claim or right under this Agreement. In addition, the foregoing release of claims excludes and You do not waive, release or discharge (I) any right to file an administrative
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charge or complaint with the Equal Employment Opportunity Commission or other administrative or government agency; and (II) any right to make claims which cannot be waived by law. Notwithstanding the foregoing, You agree to waive the right to receive any future monetary recovery directly from the Company, including payments from the Company that result from any complaints or charges that you file with any governmental agency or that are filed on your behalf. Finally, nothing in this Agreement is intended to or will be used in any way to limit employees’ rights to communicate with a government agency, as provided for, protected under or warranted by applicable law. If it is determined that any claim covered by Paragraph 6 cannot be released as a matter of law, this release of claims will remain valid and fully enforceable as to the remaining released claims.
7.Absence of Certain Claims.
(a)You agree that as of the date you sign this Agreement: (i) if You requested a leave of absence, the Company has made available to You information about the Family and Medical Leave Act (“FMLA”) and other leave rights and You were not improperly denied any request for leave under the FMLA or other leave law; (ii) if You took leave under the FMLA or other leave law, the Company provided You with the full range of benefits to which You were entitled and did not subject You to any retaliation as a result of taking such leave; (iii) the Company paid You all wages, including overtime, commissions, bonuses, incentives, vacation and other time off benefits, and any other form of compensation or remuneration of any kind, and You have properly reported all hours that You have worked, if required to do so; and (iv) the Company gave You appropriate notice of Your separation from employment under the Worker Adjustment Retraining and Notification Act or similar state or local law, if applicable.
(b)As of the date You sign this Agreement you agree and warrant that: (i) You have advised the Company of all facts of which You are aware that You believe may constitute a violation of the Company’s general polices, compliance policies, legal obligations, or the law; (ii) the Company has resolved those issues to your satisfaction; (iii) you are not aware of any current violations of the Company’s general policies, compliance policies, legal obligations, or the law; and (iv) you have not suffered any adverse action as a result of your conduct in this regard.
8.Non-Admission of Liability. You and the Company agree that this Agreement shall not in any way be construed or interpreted as an admission of liability or wrongdoing by the Company, the Releasees, or You, any such liability or wrongdoing being expressly denied.
9.Return of Company Property. You represent that on the Separation Date, You will have returned to the Company, and following the Separation Date You will refrain from intentionally obtaining or seeking to obtain, all Company property including, but not limited to, company credit card, mobile devices, iPads, computer laptops, original and duplicate copies of all Your work product and of files, calendars, books, records, notes, notebooks, customer lists and proposals to customers, manuals, computer disks, thumb drives, diskettes and any other magnetic and other materials you have in your possession or under your control belonging to the Company and Releasees or containing confidential or proprietary information concerning the Company and Releasees or their customers or operations.
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10.Cooperation. As a free and voluntary act, You agree after the Separation Date to cooperate at the Company’s reasonable request and expense with any inquiries, investigations, threats of litigation, or claims or lawsuits by or involving the Releasees on matters regarding which You had some knowledge or responsibility. You shall make yourself reasonably available at the Company’s request and expense for any inquiry, investigation or litigation, including specifically, but not exclusively, preparation for depositions and trial. You will not receive reimbursement for time spent testifying in depositions or trial or any interview by government officials. You agree not to assist or provide information in any private litigation against the Releasees, except as required under law or formal legal process, and only after first giving notice to the Company to allow the Company to take action with respect to any request for information or assistance by anyone.
(a)Confidential Agreement. You will maintain in confidence and not publish, release or in any manner disclose this Agreement and all attachments hereto, the terms of this Agreement, or any communications relating to the signing of this Agreement. However, you may discuss the terms of this Agreement with your attorney, financial advisors, and immediate family members, provided that you inform them of the obligations of confidentiality contained in this Agreement.
(b)Confidential and Proprietary Information. Unless you first secure the Company’s written consent, you shall not directly or indirectly publish, disclose, market, use, intentionally obtain or seek to obtain or authorize, advise, hire, counsel or otherwise procure any other person or entity, directly or indirectly, to publish, disclose, market, use, intentionally obtain or seek to obtain, any trade secrets, proprietary computer software and programs, and other confidential and proprietary information and materials of or about the Company and Releasees and their operations and customers, including any confidential and proprietary information and materials of which you became aware or informed during your employment with the Company (“Company Proprietary Information”). Such Company Proprietary Information is and shall continue to be the exclusive proprietary property of the Company and Releasees.
(c)Defend Trade Secrets Act Notice. Notwithstanding any other provision of this Agreement, (a) the Employee is hereby notified in accordance with the Defend Trade Secrets Act of 2016 that the Employee will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: (I) is made (A) in confidence to a federal, state or local government official, either directly or indirectly, or to any attorney; and (B) solely for the purpose of reporting or investigating a suspected violation of law; or (II) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding; and (b) the Employee is further notified that if the Employee files a lawsuit for retaliation by the Employer for reporting a suspected violation of law, the Employee may disclose the Employer’s trade secrets to the Employee’s attorney and use the trade secret information in the court proceeding if the Employee: (I) files any document containing the trade secret under seal; and (II) does not disclose the trade secret, except pursuant to court order.
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(d)Agreement Not to Solicit Business Contacts. As a condition to and in consideration for any benefits provided under this Agreement, You shall not, for the period beginning on the Separation Date and ending on the twelve (12) month anniversary of the Separation Date (the “Restricted Period”), 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. For the avoidance of doubt, during the Restricted Period, You may, directly or indirectly, engage consulting or engineering firms who are Business Contacts to provide services similar to those currently provided by such Business Contact to the Company provided such services do not conflict with such Business Contact’s obligations to the Company.
(e)Agreement Not to Solicit or Hire Employees. As a condition to and in consideration for any benefits provided under this Agreement, You shall not, during the Restricted Period, 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, You will not be in breach or violation hereof in the event You 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.
(f)Non-Disparagement. As a condition to and in consideration for any benefits provided under this Agreement, (i) You shall not, during the Restricted Period 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 and (ii) neither the Company nor any of its officers or directors shall, during the Restricted Period 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) You or Your conduct, professionalism or compliance with standards.
(g)Compliance with Law or Legal Process. Nothing in this Agreement prohibits or restricts any party or such party’s attorneys from their rights to: (i) disclose relevant and necessary information or documents in any action, investigation, or proceeding relating to this Agreement, or as required by law or legal process; or (ii) participate, cooperate, or testify in any action, investigation, or proceeding with, or provide information to, the Company’s Legal Department, any self-regulatory organization, any governmental agency, or legislative body; provided that, if permitted by law, upon receipt of any subpoena, court order or other legal process compelling the disclosure of any such information or documents, the party receiving the
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subpoena, order, or legal process shall give prompt written notice to the other party to permit the other party to protect its interests in confidentiality to the fullest extent possible.
(h)Termination of Benefits. In the event You, at any time, violate any of these Continuing Obligations or other confidentiality obligations to the Company: (i) You will be deemed in material breach of this Agreement, (ii) the Company will be relieved of any ongoing obligation to comply with any of the terms of this Agreement, including without limitation the obligation to make the payments described in Section 5 above and (iii) the Company will be entitled to the return of all payments made to you pursuant to this Agreement and retaining the right to take any other action to enforce this Agreement and seek additional damages and other judicial relief for any breach. The Company will also be entitled to take all steps to enforce this Agreement and seek damages and other judicial relief for the breach.
(a)Entire Agreement. The parties hereto acknowledge and agree that this Agreement contains the entire Agreement between Company and You with respect to the subject matter hereof and that it supersedes and invalidates any previous agreements or policies or contracts between them. No representations, inducements, promises or agreements, oral or otherwise, which are not embodied herein shall be of any force or effect.
(b)Modification. This Agreement may not be changed orally, and no modification, amendment, or waiver of any of the provisions contained in this Agreement, nor any future representation, promise or condition in connection with the subject matter of this Agreement shall be binding upon any party unless made in writing and signed by both parties.
(c)Understanding of Agreement. You expressly state that you have carefully read this Agreement, understand it and agree and acknowledge that you are releasing Company from any possible claim which you may have relating to your employment with Company or the termination of such employment. You further agree that it has been recommended to You that You consult with an attorney and any other advisor of Your own choosing regarding Your execution of this Agreement. You further agree that You have been given twenty-one (21) days in which to consider whether to sign this Agreement and have either used that full twenty-one (21) day period or voluntarily decided to sign this Agreement before the end of that period. You further understand that You may revoke this Agreement within seven (7) days after executing it by notifying Company in writing of such revocation. This Agreement shall not take effect until the eighth day after its execution, but if it is not revoked within the seven (7) day period, this Agreement shall be fully effective and enforceable thereafter.
(d)Governing Law: Jurisdiction and Venue. This Agreement, for all purposes, shall be construed in accordance with the laws of the State of Illinois without regard to conflicts-of-law principles. Any action or proceeding by either of the parties to enforce this Agreement shall be brought only in any state or federal court located in the state of State of Illinois, county of Cook. The parties hereby irrevocably submit to the exclusive jurisdiction of such courts and
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waive the defense of inconvenient forum to the maintenance of any such action or proceeding in such venue.
(e)Waiver. No waiver by either of the parties of any breach by the other party hereto of any condition or provision of this Agreement to be performed by the other party hereto shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any prior or subsequent time, nor shall the failure of or delay by either of the parties in exercising any right, power or privilege hereunder operate as a waiver thereof to preclude any other or further exercise thereof or the exercise of any other such right, power or privilege.
(f)Severability. Should any provision of this Agreement be held by a court of competent jurisdiction to be enforceable only if modified, or if any portion of this Agreement shall be held as unenforceable and thus stricken, such holding shall not affect the validity of the remainder of this Agreement, the balance of which shall continue to be binding upon the parties with any such modification to become a part hereof and treated as though originally set forth in this Agreement.
The parties further agree that any such court is expressly authorized to modify any such unenforceable provision of this Agreement in lieu of severing such unenforceable provision from this Agreement in its entirety, whether by rewriting the offending provision, deleting any or all of the offending provision, adding additional language to this Agreement or by making such other modifications as it deems warranted to carry out the intent and agreement of the parties as embodied herein to the maximum extent permitted by law.
The parties expressly agree that this Agreement as so modified by the court shall be binding upon and enforceable against each of them. In any event, should one or more of the provisions of this Agreement be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions hereof, and if such provision or provisions are not modified as provided above, this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had not been set forth herein.
(g)Captions. Captions and headings of the sections and paragraphs of this Agreement are intended solely for convenience and no provision of this Agreement is to be construed by reference to the caption or heading of any section or paragraph.
(h)Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
(i)Company Consent. To be effective, any consent of the Company given under this Agreement must be in writing and provided by the Senior Vice President, Human Resources of the Company.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth below.
Coeur Mining, Inc.
By Emilie C. Schouten
/s/ Terrence Smith
Title SVP, Human Resources
Print Name: Terrence Smith
Date: September 7th, 2021
Date: September 7th, 2021
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