Exhibit 10.11
AMENDED AND RESTATED CONSULTING SERVICES AGREEMENT
This Amended and Restated Consulting Services Agreement (this “Agreement”) is made and entered into as of May 10, 2026 (the “Effective Date”) between Sunshine Silver Mining & Refining
Company, a Delaware corporation (the “Company”), and White Mining Consulting Inc., an Ontario corporation (the “Consultant”) and amends and restates the Mining Engineering Consulting Services Agreement dated effective January 1, 2024,
as amended by Amendment No. 1 to Consulting Agreement dated May 1, 2024, Amendment No. 3 to Consulting Agreement dated July 1, 2025 and Amendment No. 4 to Consulting Agreement dated January 2026. Reference is made to that certain Executive Agreement
entered into by and between Heather White (the “Principal”) and the Company dated of even date herewith (the “Executive Agreement”).
WHEREAS:
A. The Consultant, through the Principal, has extensive experience in the areas of mining engineering, including mineral and precious metals exploration and
discovery, mine development and environmental, health, safety and design aspects of mine development financial strategy and operations, corporate finance and capital markets in the natural resources sector.
B. The Company desires to engage the Consultant to provide the services of the Principal as Chief Executive Officer of the Company, and the Consultant desires to make the Principal available to provide
such services, in each case on the terms and conditions set forth herein.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
foregoing recitals and of the mutual promises, covenants and agreements hereinafter set forth, the Company and the Consultant hereby promise, covenant and agree as follows:
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1.
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Independent Consultant
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1.1 The Company engages the Consultant to provide, and the Consultant shall provide, the services set forth in this Agreement. During the term of this Agreement, the
Consultant shall cause the Principal to serve as Chief Executive Officer of the Company (the “Consultant Services”) and to perform such duties and responsibilities as set forth in Section 1 of the Executive Agreement (the “Principal
Services”).
1.2 The Consultant shall at all times be an independent Consultant. Except as contemplated by the Executive Agreement, neither the Consultant nor any of its employees,
principals, representatives, directors and officers (the “Representatives” and each a “Representative”) is an employee or agent of the Company and no partnership, joint venture or agency will be created by this Agreement or by any
action of the parties under this Agreement and neither the Consultant nor any of its Representatives shall represent itself, himself or herself to be in any such relationship with the Company.
1.3 The Consultant acknowledges and agrees that the Consultant shall be responsible for payment to the proper authorities of any and all applicable taxes, employment
insurance premiums, Canada Pension Plan contributions and Workers’ Compensation insurance premiums in respect of the remuneration paid hereunder.
1.4 The Company shall not be liable to the Consultant for any damages, liabilities, penalties, interest or costs caused to the Consultant for failure to make any
required source deductions or payments that the Company would make in respect of payment or remuneration to employees. The Consultant agrees to indemnify and save harmless the Company from any and all damages, penalties, interest, costs and
liabilities of any nature arising as a result of the Company not making any required source deductions pursuant to the Income Tax Act, the Employment Insurance Act, the Canada Pension Plan or any other applicable federal, provincial, state or local
laws and regulations on payments to the Consultant. The Company may at any time set off any amounts owing to it by the Consultant against any and all amounts payable by the Company to the Consultant including, but not limited to, amounts payable
under this Agreement.
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2.
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Term of Contract and Termination
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2.1 The provision of the Consultant Services by the Consultant to the Company pursuant to the terms of this Agreement
shall commence on the Effective Date and shall automatically terminate, without any further action required by either party, upon the termination (for any or no reason) of the Principal’s engagement with the Company pursuant to the Executive
Agreement. The terms and conditions of any termination of this Agreement and any benefits or obligations related thereto shall be governed by the terms of the Executive Agreement.
3.1 The Consultant shall make the Principal, and only the Principal, available to perform the Principal Services. The Consultant shall not substitute any other person
to perform the Principal Services.
3.2 At the Company’s request, the Consultant will complete and provide the Company with U.S. IRS form W-8BEN-E.
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4.
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Remuneration, Expenses and Other Payment
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4.1 The Company shall pay to the Consultant, in full payment and reimbursement for providing the Consulting Services (and for the Principal performing the Principal Services) and for expenses incurred in
connection therewith, the amounts in the manner and at the times set out in Schedule A, and the Consultant shall accept the same as full payment and reimbursement. Notwithstanding any provision in this Agreement to the contrary, in no event
shall any payment under this Agreement result in a duplication of payments with respect to any amounts payable to the Principal under the Executive Agreement. For purposes of this provision, a duplication shall
be deemed to occur regardless of whether the relevant payment or benefit under the Executive Agreement is payable to the Principal in his individual capacity or to the Consultant.
5.1 Where this Agreement provides for reimbursement of expenses incurred by the Consultant, the Consultant shall (a) establish and maintain books of account of any such
expense incurred; and (b) maintain invoices, receipts and vouchers for any such expenses, and the Company will have free access at all reasonable times to such records, books of account, invoices, receipts and vouchers for the purposes of copying
and/or auditing the same.
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6.1
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Any notices provided hereunder must be in writing and shall be deemed effective upon the earlier of one (1) business day following personal delivery, or the third (3rd) business
day after mailing by first class mail to the recipient at the address indicated below: |
To the Company:
2209 Big Creek Drive
Kellogg, ID 83837
Attention: André van Niekerk
Chief Financial Officer
With a copy to:
2209 Big Creek Drive
Kellogg, ID 83837
Attention: Michelle Shepston
General Counsel
To Consultant:
White Mining Consulting Inc.
1542 Stonehaven Drive
Mississauga, Ontario L5J 1E7, Canada
Attention: Heather White
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7.
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Sub-contracting and Assignment
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7.1 The Consultant shall not assign this Agreement or any right of the Consultant under this Agreement, or sub-contract the provision of the Consulting Services or any
obligation of the Consultant under this Agreement, without the prior written consent of the Company.
7.2 No sub-contract entered into by the Consultant will relieve the Consultant from any of its obligations pursuant to this Agreement or impose any obligation or
liability upon the Company to any such sub-Consultant.
8.1 In this Agreement, unless context otherwise requires, words importing the singular include the plural and vice versa, and words importing gender include all
genders,
8.2 This Agreement shall be binding on the Consultant’s successors, assigns, heirs, executors, administrators and legal
representatives and shall inure to the benefit of any successors and assigns of the Company. The Company may assign the rights and obligations of the Company hereunder, in whole or in part, to any of the Company’s subsidiaries, affiliates or
parent corporations; provided that such subsidiary, affiliate or parent corporation directly or indirectly owns all or substantially all of the Company’s consolidated assets, or to any other successor or assign in connection with the sale
of all or substantially all of the Company’s assets or stock or in connection with any merger, acquisition and/or reorganization, provided the assignee assumes the obligations of the Company hereunder.
8.3 This Agreement may only be amended, modified or supplemented by an agreement in writing signed by all of the parties hereto. No consent or waiver, express or implied, by any party to or of any breach or default by the other party in the performance by the other of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other
breach or default of the same or any other obligation of such party. Failure on the part of any party to complain of any act or failure to act of the other of them, or to declare the other party in default irrespective of how long such failure
continues, shall not constitute a waiver by such party of its rights hereunder or of the right to then or subsequently declare a default. No waiver shall be deemed to have occurred unless set forth in a writing executed by or on behalf of the
waiving party. No such written waiver shall be deemed a continuing waiver unless specifically stated therein, and each such waiver shall operate only as to the specific term or condition waived and shall not constitute a waiver of such term or
condition for the future or as to any act other than that specifically waived.
8.4 This Agreement (including any Exhibits), together with the Executive Agreement, constitutes the sole and entire agreement of the parties to this Agreement
with respect to the subject matter contained herein and therein, and, effective as of the Effective Date, supersedes all prior and contemporaneous representations, warranties, understandings and agreements, both written and oral, with respect to such
subject matter. Each of the parties hereto hereby releases and forever discharges the other of and from all manner of actions, causes of action, claims and demands whatsoever under or in respect of any such
agreement.
8.5 If any provision of this Agreement is determined to be void or unenforceable, in whole or in part, it shall not be deemed to affect or impair the enforceability
or validity of any other provision of this Agreement or of any Schedule or any part thereof, and any such covenant or agreement may be severed from this Agreement without affecting the remainder of the Agreement.
8.6 This Agreement and all disputes or controversies arising out of or relating to this
Agreement or the transactions contemplated hereby shall be governed by, and construed and interpreted in accordance with, the laws of the State of Idaho without giving effect to principles of conflicts of law of such state.
8.7 Except as otherwise set forth in the Executive Agreement, the Company and the Consultant mutually consent to the
resolution by final and binding arbitration of any and all disputes, controversies or claims between them including, without limitation, (i) any dispute, controversy or claim related in any way to the Consultant’s provision of the Consulting
Services to the Company or any subsidiary or affiliate or any termination thereof, (ii) any dispute, controversy or claim of alleged discrimination, harassment or retaliation (including, but not limited to, claims based on race, sex, sexual
preference, religion, national origin, age, marital or family status, medical condition, handicap or disability) and (iii) any claim arising out of or relating to this Agreement or the breach thereof (collectively, “Disputes”); provided,
however, that nothing herein shall require arbitration of any claim or charge which, by law, cannot be the subject of a compulsory arbitration agreement; provided, further, that notwithstanding anything to the contrary herein, the Consultant may,
but is not required to, arbitrate claims for sexual harassment or assault to the extent applicable law renders a pre-dispute arbitration agreement covering such claims invalid or unenforceable. All Disputes shall be resolved exclusively by
arbitration administered by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules then in effect (the “AAA Rules”).
Any arbitration proceeding brought under this Agreement shall be conducted in Boise, Idaho before one arbitrator selected in accordance with the AAA Rules. The Company will
pay for any administrative, hearing fees and/or filing fees charged by the arbitrator or AAA. Each party to any Dispute shall pay its own expenses, including attorneys’ fees; provided that, the arbitrator shall award the prevailing party reasonable
costs and attorneys’ fees incurred but shall not be able to award any special or punitive damages. The arbitrator shall issue a decision or award in writing, stating the essential findings of fact and conclusions of law.
8.8 Any notice relating to this Agreement or required or permitted to be given in accordance with this Agreement shall be in writing and shall be personally delivered
or mailed by registered mail, postage prepaid to the parties at their respective addresses set out on the first page of this Agreement, or delivered by e-mail to the e-mail address of the party on file in the other party’s records.
8.9 The Consultant shall, upon the reasonable request of the Company, make, do, execute or cause to be made, done or executed all such further and other lawful acts,
deeds, things, documents and assurances of whatsoever nature and kind for the better or more perfect or absolute performance of the terms, conditions and intent of this Agreement.
8.10 The Consultant understands and agrees that, without prejudice to whatever rights and other remedies the Company may
have, the Company may enforce its rights under this Agreement by way of injunction, and may obtain an injunction, including an interim injunction to restrain any breach or anticipated breach of any of the provisions of this Agreement.
8.11 The Company and the Consultant acknowledge and declare that in executing this Agreement they are each relying wholly on their own judgment and knowledge and have not
been influenced to any extent whatsoever by any representations or statements made by or on behalf of the other party regarding any matters dealt with herein or incidental hereto.
8.12 Sections 1, 2, 6 and 8 shall survive the termination of this Agreement.
8.13 This Agreement may be executed by the parties hereto in counterparts, each of which shall be considered an original for all purposes.
[Signature page follows.]
IN WITNESS WHEREOF this Agreement has been executed by the parties
hereto as of the day and year first above written.
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WHITE MINING CONSULTING INC.
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By:
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/s/ Heather White
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Name: Heather White |
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Title: President
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SUNSHINE SILVER MINING & REFINING COMPANY
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By:
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/s/ André van Niekerk
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Name: André van Niekerk |
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Title: Chief Financial Officer
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[Signature page to Consulting Agreement – Sunshine Silver Mining & Refining Company and White Consulting Entity
SCHEDULE A
REMUNERATION, EXPENSES AND OTHER PAYMENT
Base Fee
The Company shall pay the Consultant an annual fee of $850,000 (the “Base Fee”), which shall be paid in monthly installments and pro-rated for any partial months of service.
Annual Bonus
For each calendar year during the term of this Agreement, the Consultant shall be eligible for a performance-based cash bonus (the “Annual Bonus Fee”),
with a target of 100% of the Base Fee (the “Target Bonus Fee”) and calculated by the Company in its sole and absolute discretion considering the performance of the Company and the Principal according to criteria established by the Company.
For the 2026 calendar year, the Annual Bonus Fee shall be calculated with reference to the total base fee paid to Executive during the year. The Annual Bonus Fee
will be payable in the form of a lump sum
cash payment no later than March 15th of the calendar year that immediately follows the calendar year to which the bonus relates (such payment date being, the “Bonus Payment Date”). In order for the Consultant to be eligible to receive any
Annual Bonus, and except as otherwise provided in the Executive Agreement, the Principal must remain continuously engaged under the Executive Agreement through December 31st of the calendar year in which Annual Bonus relates and not experience a
termination of engagement by the Company for Cause (as defined in the Executive Agreement) prior to the Bonus Payment Date.
Annual Equity Incentive Awards
At least annually during the term of this Agreement, beginning in 2027 and beyond, the Board of Directors of the Company (the “
Board”) (or the applicable
committee thereof) shall consider the Consultant for a grant of equity incentive awards at a level commensurate with the Consultant’s Services under this Agreement and the Executive Agreement (as determined by the Board (or the applicable committee
thereof)) (such annual equity incentive awards, together with any other grant of equity incentive award made to the Consultant, the “
Equity Awards”).
Additional Fees
The Company shall pay the Consultant an additional fee of US$5,313 per month (the “Additional Monthly Fees” and together with the Base Fee and the Annual Bonus Fee, the “Fees”), which shall be pro rated
for any partial months.
Reimbursement of Expenses.
The Company shall reimburse the Consultant for any reasonable expenses reasonably and necessarily incurred by the Consultant in furtherance of Services hereunder, including travel, meals and
accommodations, upon submission by the Consultant of vouchers or receipts and in compliance with such rules and policies relating thereto as the Company may from time to time adopt.
Other
Notwithstanding anything set forth herein, to the extent required to comply with applicable law or otherwise agreed upon between the Company and the Consultant, the Company may pay the Base Fee,
Annual Bonus Fee, Additional Monthly Fees or any other payment directly to the Principal. In addition, the Company may, in its sole discretion, grant any Equity Awards directly to the Principal. Any such payment paid (or Equity Award granted) to
the Principal shall be deemed a payment or grant (as applicable) to the Consultant for purposes of this Agreement and Schedule A.