Severance Plan

 

 

 

 

 

 

 

2012

EXECUTIVE CHANGE OF CONTROL PLAN

OF NEWMONT

Effective January 1, 2012


TABLE OF CONTENTS

Page

INTRODUCTION

1

ARTICLE I

DEFINITIONS

1

ARTICLE II

ELIGIBILITY

Section 2.01.

Eligibility Requirements

6

Section 2.02.

Duration of Participation

6

ARTICLE III

BENEFITS

Section 3.01.

Separation Benefits

7

Section 3.02.

Timing and Amount of Separation Benefits

7

Section 3.03.

Other Benefits Payable

8

Section 3.04.

Reduction for Excise Tax

8

Section 3.05.

Coordination With Governmental Plans

9

Section 3.06.

Payment Due at the Time of Death

9

ARTICLE IV

TERMINATION OF BENEFITS

Section 4.01.

Termination of Benefits Generally

10

ARTICLE V

CONTINUATION OF HEALTH CARE COVERAGE

10

ARTICLE VI

PROTECTION OF MEDICAL PRIVACY

10

ARTICLE VII

ADMINISTRATION COMMITTEE

Section 7.01.

Appointment of the Administration Committee

10

Section 7.02.

Responsibilities of the Administration Committee

11

Section 7.03.

Organization of the Administration Committee

11

Section 7.04.

Indemnification of Administration Committee Members

11

Section 7.05.

Benefits Claims and Appeals

11

2012 Executive Change of Control Plan of Newmont

Effective January 1, 2012

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ARTICLE VIII

MISCELLANEOUS

Section 8.01.

Full Settlement

12

Section 8.02.

Confidential Information

13

Section 8.03.

Unfunded Plan Status

13

Section 8.04.

Employment Status

13

Section 8.05.

Validity and Severability

13

Section 8.06.

Governing Law

13

Section 8.07.

Right of Offset

13

Section 8.08.

Conformance With Applicable Laws

14

Section 8.09.

Payments Due Minors or Incapacitated Persons

14

Section 8.10.

Distribution Delay for Specified Employees

14

ARTICLE IX

DURATION, AMENDMENT AND TERMINATION

Section 9.01.

Duration

14

Section 9.02.

Amendment or Termination

14

Section 9.03.

Procedure for Extension, Amendment or Termination

14

2012 Executive Change of Control Plan of Newmont

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2012

EXECUTIVE CHANGE OF CONTROL PLAN

OF NEWMONT

INTRODUCTION

The Board of Directors of Newmont USA Limited (“Newmont”) recognizes that, as is the case with many publicly held corporations, there exists the possibility of a Change of Control with respect to its parent company, Newmont Mining Corporation (“Newmont Mining”). This possibility and the uncertainty it creates may result in the loss or distraction of executives of Newmont and its Affiliated Entities to the detriment of Newmont Mining and its shareholders.

The Board considers the avoidance of such loss and distraction to be essential to protecting and enhancing the best interests of Newmont and Newmont Mining and its shareholders. The Board also believes that when a Change of Control is perceived as imminent, or is occurring, the Board should be able to receive and rely on disinterested service from executives regarding the best interests of Newmont and Newmont Mining and its shareholders without concern that executives might be distracted or concerned by the personal uncertainties and risks created by the perception of an imminent or occurring Change of Control.

In addition, the Board believes that it is consistent with Newmont’s and its Affiliated Entities’ employment practices and policies and in the best interests of Newmont Mining and its shareholders to treat fairly executives whose employment terminates in connection with or following a Change of Control.

Accordingly, the Board has determined that appropriate steps should be taken to assure Newmont and its Affiliated Entities of the continued employment and attention and dedication to duty of its executives and to seek to ensure the availability of their continued service, notwithstanding the possibility, threat or occurrence of a Change of Control.

Therefore, in order to fulfill the above purposes, the 2012 Executive Change of Control Plan of Newmont (the “Plan”) has been adopted effective January 1, 2012.

ARTICLE I

DEFINITIONS

The following definitions shall apply to the Plan.

Administration Committee” means the committee appointed by the Board or its delegate in writing which serves in accordance with Article VII.

Affiliated Entity” means any corporation or other entity, now or hereafter formed, that is or shall become affiliated with the Employer, either directly or indirectly, through stock ownership or control, and which is (a) included in the controlled group of corporations (within the meaning of Code Section 1563(a) without regard to Code Section 1563(a)(4) and Code Section 1563(e)(3)(C)) in which the Employer is also included or (b) included in the group of entities (whether or not incorporated) under common control (within the meaning of Code Section 414(c)) in which the Employer is also included.

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Annual Bonus” means the aggregate annual cash bonus that a Participant is eligible to earn pursuant to the Senior Executive Compensation Program of the Employer or the Annual Incentive Compensation Program of the Employer or any Affiliated Entity or any successor or replacement plans or payroll practices. “Annual Bonus” shall not include any amount in respect of any stock-based compensation (including stock options, deferred stock, restricted stock, restricted stock units and performance stock units), incentive payments pursuant to the Employee Incentive Compensation Program or the equity components of the Senior Executive Compensation Program or any successor based programs.

Annual Pay” means with respect to each Salaried Employee the sum of:

(i) the Salaried Employee’s Annual Salary, and

(ii) Target Annual Bonus.

Annual Salary” means the Salaried Employee’s regular annual base salary immediately prior to his or her Separation from Service (including premium pay) and pre-tax deferrals under the Retirement Savings Plan of Newmont or similar plans (including the Savings Equalization Plan of Newmont). “Annual Salary” shall not include any extra pay for foreign service or foreign assignment, hardship pay, overtime, moving allowances, the cost of goods and services, danger pay, any amount in respect of any stock-based compensation (including stock options, deferred stock, restricted stock, restricted stock units and performance stock units), incentive payments pursuant to the Employee Incentive Compensation Program or the equity components of the Senior Executive Compensation Program or any successor equity based programs.

Board” means the Board of Directors of Newmont USA Limited.

Cause” means, with respect to any Salaried Employee and as determined by the Board or its delegate:

(i) the willful and continued failure of the Salaried Employee to perform substantially the Salaried Employee’s duties with the Employer or one of its Affiliated Entities (other than any such failure resulting from incapacity due to physical or mental illness) or his failure to follow policies, directions or the Employer’s code of conduct, after a written demand for substantial performance is delivered to the Salaried Employee by the Board or its delegate. Such written demand shall identify the manner in which the Board or its delegate believes that the Salaried Employee has not substantially performed the Salaried Employee’s duties. Notwithstanding the foregoing, written demand for substantial performance shall not be required if the Board or its delegate determines that immediate action, including termination of the Salaried Employee, is necessary to avoid potential injury or harm to the Employer or any person; or

(ii) the engaging by the Salaried Employee in illegal conduct or gross negligence or willful misconduct which is potentially injurious to the Employer or any Affiliated Entity, provided that if the Salaried Employee acts in accordance with an authorized written opinion of the Employer’s or an Affiliated Entity’s legal counsel, such action will not constitute “Cause” under this definition; or

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(iii) any dishonest or fraudulent activity by the Salaried Employee or the reasonable belief by the Employer of the Salaried Employee’s breach of any contract, agreement or representation with the Employer or any Affiliated Entity. In the event “Cause” is determined to exist by the Employer, and the Salaried Employee had received payments under the Plan or otherwise been credited with amounts under the Plan, the Employer shall be entitled to recover such amounts from the Salaried Employee or offset such amount from any other amounts owed by the Employer to the Salaried Employee.

Change of Control” means the occurrence of any of the following events:

(i) The acquisition in one or a series of transactions by 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”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of either (x) the then outstanding shares of common stock of Newmont Mining (the “Outstanding Company Common Stock”) or (y) the combined voting power of the then outstanding voting securities of Newmont Mining entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that for purposes of this subsection (i), the following acquisitions shall not constitute a Change of Control: (A) any acquisition directly from Newmont Mining other than an acquisition by virtue of the exercise of a conversion privilege, unless the security being so converted was itself acquired directly from Newmont Mining, (B) any acquisition by Newmont Mining, (C) any acquisition by any employee benefits plan (or related trust) sponsored or maintained by Newmont Mining or any corporation controlled by Newmont Mining or (D) any acquisition by any corporation pursuant to a transaction which complies with clauses (A), (B) and (C) of paragraph (iii) below; or

(ii) Individuals who, as of the Effective Date, constitute the Board of Directors of Newmont Mining (“Incumbent Board”) cease for any reason to constitute at least a majority of the Board of Directors of Newmont Mining; provided, however, that any individual becoming a director subsequent to the Effective Date whose election, or nomination for election by Newmont Mining’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, 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 of Directors of Newmont Mining; or

(iii) Consummation of a reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of Newmont Mining or an acquisition of assets of another entity (a “Business Combination”), in each case, unless, following such Business Combination, (A) all or substantially all of the individuals and

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entities who were the beneficial owners, respectively, of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of, respectively, the then outstanding shares of common stock (or, for a non-corporate entity, equivalent securities) and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors (or for a non-corporate entity, equivalent governing body), as the case may be, of the entity resulting from such Business Combination (including, without limitation, an entity which as a result of such transaction owns Newmont Mining or all or substantially all of Newmont Mining’s assets either directly or through one or more subsidiaries (a “Parent Company”)) in substantially the same proportions as their ownership, immediately prior to such Business Combination, of the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be, (B) no person or entity (excluding Newmont Mining, any entity resulting from such Business Combination, any employee benefit plan (or related trust) of Newmont Mining or its Affiliate or any entity resulting from such Business Combination or, if reference was made to equity ownership of any Parent Company for purposes of determining whether clause (A) above is satisfied in connection with the applicable Business Combination, such Parent Company) beneficially owns, directly or indirectly, 20% or more of, respectively, the then outstanding shares of common stock (or, for a non-corporate entity, equivalent securities of the entity) resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such entity entitled to vote generally in the election of directors (or, for a non-corporate entity, equivalent governing body) of the entity, unless such ownership resulted solely from ownership of securities of Newmont Mining, prior to the Business Combination and (C) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination (or, if reference was made to equity ownership of any Parent Company for purposes of determining whether clause (A) above is satisfied in connection with the applicable Business Combination, of the Parent Company) were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board of Directors of Newmont Mining, providing for such Business Combination; or

(iv) Approval by the stockholders of Newmont Mining of a complete liquidation or dissolution of Newmont Mining.

Code” means the Internal Revenue Code of 1986, as amended.

Date of Termination” means the date on which a Salaried Employee ceases to be an Employee of the Employer.

Disability” means a condition that causes the Employee to terminate employment with the Employer and/or all participating Employers and the Employee has immediately begun receiving benefits from the Disability Plan of Newmont.

Effective Date” means January 1, 2012.

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Employee” means an employee of an Employer who satisfied the conditions for eligibility of the Plan and who is not (a) an individual who performs services for the Employer under an agreement, contract or arrangement (which may be written, oral or evidenced by the Employer’s payroll practice) between the Employer and the individual or with any other organization that provides the services of the individual to the Employer pursuant to which the individual is initially classified or treated as an independent contractor or whose remuneration for services has not been treated initially as subject to the withholding of federal income tax pursuant to Code Section 3401, or who is otherwise treated as an employee of an entity other than the Employer, irrespective of whether he or she is treated as an employee of the Employer under common-law employment principles or pursuant to the provisions of Code Section 414(m), 414(n) or 414(o), even if the individual is subsequently reclassified as a common-law employee as a result of a final decree of a court of competent jurisdiction, the settlement of an administrative or judicial proceeding or a determination by the Internal Revenue Service, the Department of the Treasury or the Department of Labor, (b) an individual who is a leased employee, (c) a temporary employee, or (d) an individual covered by a collective bargaining agreement.

Employer” means Newmont USA Limited and any Affiliated Entities.

ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

Good Reason” means with respect to any Salaried Employee, without such Salaried Employee’s written consent:

(i) any material reduction in the Salaried Employee’s Annual Salary or annual target bonus opportunity, as in effect during the 120-day period immediately preceding the Change of Control (or as such amounts may be increased from time to time);

(ii) the Employer requiring the Salaried Employee to relocate his or her principal place of business to a location which is more than 50 miles from his or her previous principal place of business and such relocation is a material change in geographic location;

(iii) any material failure by the Employer to comply with and satisfy its obligations under the Plan and any other agreement under which the Salaried Employee provides services; or

(iv) the assignment to the Salaried Employee, without the Salaried Employee’s consent, of any duties representing a material diminution in the Employee’s position immediately prior to such assignment (including status, office and reporting requirements) or any other action resulting in the material diminution of the Employee’s position, authority, duties or responsibilities.

The Salaried Employee must notify his or her immediate supervisor or the Administrative Committee or its delegate within 90 days of having knowledge of the occurrence of any of the above and his or her intent to treat such occurrence as “Good Reason.” The Employer shall have 30 days from the date of receipt of such notice to remedy the condition. After the expiration of such 30 day period without remedy by the Employer, “Good Reason” shall be deemed to exist through the second anniversary of the event giving rise to “Good Reason”.

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Participant” means an individual who satisfies the eligibility requirements set forth in Section 2.01.

Plan” means the 2012 Executive Change of Control Plan of Newmont.

Salaried Employee” means an Employee who is employed by an Employer as a salaried paid Employee. “Salaried Employee” includes former Salaried Employees where the context requires.

Separation Benefits” means the benefits described in Section 3.02 that are provided to qualifying Salaried Employees under the Plan.

Separation from Service” means the termination of the Salaried Employee’s employment with the Employer, as defined under Treasury Regulation Section 1.409A-1(h) and such other applicable regulations as promulgated pursuant to Code Section 409A.

Specified Employee” means any Employee or former Employee (including any deceased employee) who at any time during the Plan Year that includes the determination date was an officer of the Employer having an annual compensation greater than $130,000 (as adjusted under Section 416(i)(1) of the Code), a five-percent owner of the Employer or a one-percent owner of the Employer having annual compensation of more than $150,000. No more than 50 Employees shall be treated as officers. For this purpose, annual compensation means compensation within the meaning of Section 415(c)(3) of the Code. The determination of who is a Specified Employee will be made in accordance with Section 416(i) of the Code and in accordance with policies and procedures adopted by the Employer.

Target Annual Bonus” means the Annual Bonus that the Salaried Employee would have received for the year in which his or her Date of Termination occurs if the target goals had been achieved.

ARTICLE II

ELIGIBILITY

Section 2.01. Eligibility Requirements. Each Salaried Employee hired or who becomes eligible for the Plan on or after the Effective Date and who is not eligible for any other change of control plan sponsored by the Employer who is at a pay grade level of 109 or above (or such equivalent pay grades (if Employer adopts a different pay grade system or nomenclature), as determined in the sole discretion of Employer) shall be eligible for the Plan.

Section 2.02. Duration of Participation. A Salaried Employee shall only cease to be a Participant in the Plan as a result of an amendment or termination of the Plan in accordance with Article X, or when he ceases to be a Salaried Employee of any Employer, unless, at the time he

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ceases to be a Salaried Employee, the Salaried Employee is entitled to payment of a Separation Benefit as provided in the Plan or there has been an event or occurrence constituting Good Reason that would enable the Salaried Employee to terminate his employment and receive a Separation Benefit. A Salaried Employee entitled to payment of a Separation Benefit or any other amounts under the Plan shall remain a Participant in the Plan until the full amount of the Separation Benefit and any other amounts payable under the Plan have been paid to the Salaried Employee.

ARTICLE III

BENEFITS

Section 3.01. Separation Benefits. A Salaried Employee shall be entitled to Separation Benefits as set forth in Section 3.02 below if, at any time following a Change of Control and prior to the second anniversary of the Change of Control, the Salaried Employee’s employment is (i) terminated by the Employer for any reason other than Cause, death or Disability or (ii) terminated by the Salaried Employee for Good Reason.

Section 3.02. Timing and Amount of Separation Benefits. If a Salaried Employee’s employment is terminated in circumstances entitling such Salaried Employee to Separation Benefits pursuant to Section 3.01, the Employer shall provide to such Salaried Employee, as soon as administratively practicable following the Date of Termination, but not later than 30 days following the Salaried Employee’s Date of Termination, a lump sum cash payment as set forth in subsection (a) below, and shall provide to the Salaried Employee the continued benefits as set forth in subsection (b) below and the outplacement services set forth in subsection (c) below. For purposes of determining the benefits set forth in subsections (a) and (b), if the termination of the Salaried Employee’s employment is for Good Reason based upon a reduction of the Salaried Employee’s Annual Salary or opportunity to earn an Annual Bonus, any such reduction shall be ignored.

(a) Cash Lump Sum. The cash lump sum referred to in this Section shall be the aggregate of the following amounts:

(i) the sum of (A) any Annual Salary owed to the Salaried Employee as of the Date of Termination, (B) the product of (1) the Salaried Employee’s Target Annual Bonus and (2) a fraction the numerator of which is the number of days in such year through the Date of Termination and the denominator of which is 365;

(ii) an amount equal to two times Annual Pay or, with respect to individuals specified by the Board, three times Annual Pay (and any such specification by the Board shall be irrevocable upon and following a Change of Control); and

(b) Employee Benefits. A Salaried Employee who is eligible to receive benefits under this Plan will continue to have access to coverage under the Employer’s medical, vision, prescription drug and dental plan (if and as such plans then exist) for a

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period equal to the COBRA period under Code Section 4980B. The continuing coverage will be the same coverage that the Salaried Employee had at the time of termination of employment, subject to any changes to the Employer’s benefit plan that affect then current employees. The Salaried Employee’s cost shall be the same as the cost of an eligible active Employee throughout the coverage period. In addition the Participant shall be eligible to continue life insurance benefits for a period of the same length that are no less favorable than those to which the Salaried Employee and his spouse and eligible dependents were receiving immediately prior to the Date of Termination. The Salaried Employee maybe required to complete any administrative forms and comply with any applicable COBRA rules and procedures prescribed by the Administration Committee or its delegate.

(c) Outplacement Services. The Employer shall, at its sole expense as incurred, provide the Salaried Employee with reasonable outplacement services for a position that is commensurate with the position previously held. The scope and provider of the outplacement services shall be consistent with the Employer’s practices during the one-year period immediately preceding the Change of Control. Any expenses incurred in connection with such outplacement services must be incurred no later than the end of the first tax year following the tax year in which the Salaried Employee’s Separation from Service occurred.

Section 3.03. Other Benefits Payable. To the extent not previously paid or provided, the Employer shall timely pay or provide (or cause to be paid or provided) to a Salaried Employee entitled to the Separation Benefits any other amounts or benefits required to be paid or provided to the Salaried Employee or which the Salaried Employee is eligible to receive under any plan, program, policy or practice or contract or agreement of the Employer and its Affiliated Entities, but excluding any severance pay or pay in lieu of notice required to be paid to such Salaried Employee under applicable law or any other severance pay plan or policy of the Employer.

Section 3.04. Reduction for Excise Tax.

(a) In the event any payment or distribution by Newmont or an Affiliated Entity to or for the benefit of a Salaried Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Plan or otherwise, (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), the following shall apply:

(i) the payment or distribution to the Salaried Employee shall be calculated by reducing the payment or distribution to the amount at which the Excise Tax shall not apply; and

(ii) the value of the payment or distribution determined under paragraph (i) shall be compared to the value of the payment or distribution without any reduction taking into consideration the Salaried Employee’s liability for the Excise Tax; and

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(iii) the Salaried Employee will receive the benefit described in (i) or (ii), whichever is greater.

(b) The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the cash lump sum payments under Section 3.02(a), then by reducing the duration of the outplacement services provided under Section 3.02(c), and finally by reducing the duration of the benefits provided under Section 3.02(b). For purposes of reducing the Payments, only amounts payable under this Plan (and no other Payments) shall be reduced.

(c) All determinations required to be made under this Section, including whether and when a reduction is required and the amount of such reduction and the assumptions (which shall be reasonable and based on all available information) to be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm selected by the pre-Change of Control Board or its delegate (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Employer and the Salaried Employee within a reasonable time after receipt of notice from the Salaried Employee that there has been a Payment, or such earlier time as is requested by the Employer. 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 Salaried Employee shall 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 Employer. Any determination by the Accounting Firm shall be binding upon the Employer and the Salaried Employee.

Section 3.05. Coordination With Governmental Plans. In the event an eligible Salaried Employee qualifies for benefits under both the Plan and another plan or arrangement offered by a governmental entity due to the Salaried Employee’s termination of employment with an Employer or Affiliated Entity, the Salaried Employee shall receive the greater of the benefit provided by the Plan or the benefit provided by the governmental entity, but not both. In the event the benefit provided through the governmental entity’s plan or program is less than the benefit provided under the Plan, such benefit shall offset the amount payable to the Salaried Employee under the Plan. Notwithstanding the foregoing, however, the Employer shall not offset any benefits payable pursuant to this Plan to the extent such offset would result in the imposition of taxes or penalties pursuant to Code Section 409A and the Treasury Regulations issued thereunder.

Section 3.06. Payment Due at the Time of Death. In the event a Salaried Employee who is entitled to benefits pursuant to the Plan dies prior to the full payment of such benefits, any unpaid benefits shall be paid to his beneficiary designated to receive life insurance proceeds under the Group Life and Accidental Death and Dismemberment Plan of Newmont. In the event there is no such beneficiary designated, any amounts owed to the deceased Salaried Employee pursuant to the Plan shall be paid to his estate. Amounts payable pursuant to this Section shall be paid as soon as practicable following the Salaried Employee’s death, and in no event later than 75 days following the Salaried Employee’s death. Upon a Salaried Employee’s death, eligible individuals may elect to continue medical, dental and prescription drug benefits, subject to Section 3.02(b), to the extent such benefits would otherwise continue under COBRA and only to the extent such benefits will not be subject to Code Section 409A.

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ARTICLE IV

TERMINATION OF BENEFITS

Section 4.01. Termination of Benefits Generally. Benefits for a Salaried Employee shall terminate when any of the following occurs:

(a) The Salaried Employee becomes ineligible for benefits under the Plan;

(b) The Plan is terminated; or

(c) All benefits a terminated Salaried Employee is eligible to receive are paid or provided.

ARTICLE V

CONTINUATION OF HEALTH CARE COVERAGE

Continuation of health benefit coverage described in Section 3.02(b) shall be permitted only in accordance with the applicable health plan. No continuation of coverage is otherwise permitted under this Plan.

ARTICLE VI

PROTECTION OF MEDICAL PRIVACY

The Plan is generally not subject to the Health Insurance Portability and Accountability Act (“HIPAA”). HIPAA shall apply only with respect to medical benefits described in Section 3.02(b) in accordance with the applicable health plan.

ARTICLE VII

ADMINISTRATION COMMITTEE

Section 7.01. Appointment of the Administration Committee. The Board or its delegate shall appoint the members of the Administration Committee who may be, but need not be, officers, directors or employees of Newmont Mining or Affiliated Entities. The members of the Administration Committee shall hold office at the pleasure of the Board and shall serve without compensation. In the event of an impending Change of Control, the Administration Committee may appoint a person (or persons) independent of the third party effectuating the Change of Control to be the Administration Committee effective upon the occurrence of a Change of Control (the “Independent Committee”), and the Independent Committee shall not be removed or modified following a Change of Control.

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Section 7.02. Responsibilities of the Administration Committee. The Administration Committee shall be responsible for the administration, operation and interpretation of the Plan. The Administration Committee shall establish rules from time to time for the transaction of its business. The Administration Committee shall have the exclusive right to interpret the Plan’s provisions and to exercise discretion where necessary or appropriate in the interpretation and administration of the Plan and to decide any and all matters arising thereunder or in connection with the administration of the Plan. Such decisions, actions and records of the Administration Committee shall be conclusive and binding upon all persons having or claiming to have any right or interest in or under the Plan, provided that if no Independent Committee is appointed, any decisions by the Administration Committee in respect of eligibility for benefits under the Plan shall be subject to de novo review.

The Administration Committee may delegate some or all of its authority under the Plan to any person, persons or entities. The Administration Committee may remove any duly appointed delegate at any time at its sole discretion.

Section 7.03. Organization of the Administration Committee. The Administration Committee shall adopt such rules as it deems desirable for the conduct of its affairs and for the administration of its duties under the Plan. The Administration Committee may appoint agents (who need not be members of the Administration Committee) to whom it may delegate such powers as it deems appropriate. The Administration Committee may make its determinations with or without meetings, and it may authorize one or more of its members or agents to sign instructions, notices and determinations on its behalf. Any action taken by the Administration Committee shall be taken by a majority of the members attending a meeting of the Administration Committee (provided at least a majority of the Administration Committee members are at such meeting) or by a majority of the members of the Administration Committee executing a written instrument setting forth the action taken.

Section 7.04. Indemnification of Administration Committee Members. Newmont Mining shall indemnify the members of the Administration Committee against any and all claims, loss, damages, expense (including attorney fees) and liability arising from any action or failure to act, except when the same is judicially determined to be due to the gross negligence or willful misconduct of such member. Such indemnification shall include the Administration Committee members or any individuals delegated authority by the Administration Committee if such individuals are employed by Newmont Mining or an Affiliated Entity. Newmont Mining does not hereby indemnify any entity or person that is not an employee of Newmont Mining or an Affiliated Entity, provided that this sentence shall not apply to any individual who is a member of the Independent Committee. The indemnification provided hereunder shall continue as to a person who has ceased acting as a director, officer, member, agent or employee of the Employer, and such person’s rights shall inure to the benefit of his heirs and representatives.

Section 7.05. Benefits Claims and Appeals. The Plan is not intended to be subject to ERISA. If and only if, however, the Plan is determined to be subject to ERISA, the intention of Newmont is that it shall be construed as a “welfare plan,” as defined in Section 3(1) of ERISA, and this Section 7.05 shall apply. The Administration Committee shall establish a claims and appeals procedure applicable to persons eligible to participate in the Plan. Unless otherwise required by applicable law, such procedures will provide that any such person has not less than

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60 days following receipt of any adverse benefit determination within which to appeal the determination in writing with the Administration Committee, and that the Administration Committee must respond in writing within 30 days of receiving the appeal, specifically identifying those Plan provisions on which the benefit denial was based and indicating what, if any, information such person must supply in order to perfect a claim for benefits. Notwithstanding the foregoing, the claims and appeals procedures established by the Administration Committee will be provided for the use and benefit of persons who may choose to avail themselves of such procedures, but compliance with the provisions of those claims and appeals procedures by any such person will not be mandatory for any such person claiming benefits upon or after a Change of Control. It shall not be necessary for any person to exhaust these procedures and remedies upon or after a Change of Control prior to bringing any legal claim or action, or asserting any other demand, for payments or other benefits to which such person claims entitlement.

ARTICLE VIII

MISCELLANEOUS

Section 8.01. Full Settlement. The Employer’s obligation to make the payments provided for under this Plan 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 Employer may have against a Salaried Employee or others. In no event shall a Salaried Employee be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to the Salaried Employee under any of the provisions of this Plan and such amounts shall not be reduced whether or not the Salaried Employee obtains other employment. The Employer agrees to pay, to the full extent permitted by law, all legal fees and expenses which a Salaried Employee may incur as a result of any contest by the Employer, the Salaried Employee or others of the validity or enforceability of, or liability under, any provision of this Plan or any guarantee of performance thereof (including as a result of any contest by the Salaried Employee about the amount of any payment pursuant to this Plan), plus in each case reasonable interest on any delayed payment; provided that the Employer will pay such fees, expenses, and interest as incurred at any time from the Effective Date through the Salaried Employee’s remaining lifetime (or, if longer, through the 20th anniversary of the Effective Date). Reimbursement shall be made by the Employer to the Salaried Employee only if the Salaried Employee prevails on any claim in connection with such dispute. Such reimbursement shall be made as soon as practicable following the resolution of such contest or dispute (whether or not appealed), but in no event shall payments under this Section be made later than the end of the calendar year next following the calendar year in which such legal fees and expenses were incurred, provided that the Salaried Employee shall have submitted an invoice for such legal fees and expenses at least 10 days before the end of the calendar year next following the calendar year in which such legal fees and expenses were incurred. The amount of such legal fees and expenses that the Employer is obligated to pay in any given calendar year shall not affect the legal fees and expenses that the Employer is obligated to pay in any other calendar year, and the Salaried Employee’s right to have the Employer pay such legal fees and expenses may not be liquidated or exchanged for any other benefit.

2012 Executive Change of Control Plan of Newmont

Effective January 1, 2012

Page 12 of 15


Section 8.02. Confidential Information. Each Salaried Employee shall hold in a fiduciary capacity for the benefit of the Employer all secret or confidential information, knowledge or data relating to the Employer or any of its Affiliated Entities, and their respective businesses, which shall have been obtained by the Salaried Employee during the Salaried Employee’s employment by the Employer or any of its Affiliated Entities and which shall not be or become public knowledge (other than by acts by the Salaried Employee or representatives of the Salaried Employee in violation of this Plan). After termination of a Salaried Employee’s employment with the Employer, the Salaried Employee shall not, without the prior written consent of the Employer or as may otherwise be required by law or legal process, communicate or divulge any such information, knowledge or data to anyone other than the Employer and those designated by it. In no event shall an asserted violation of the provisions of this Section constitute a basis for deferring or withholding any amounts otherwise payable under this Plan.

Section 8.03. Unfunded Plan Status. This Plan is intended to be an unfunded plan within the meaning of ERISA. All payments pursuant to the Plan shall be made from the general funds of the Employer. No Salaried Employee or other person shall have under any circumstances any interest in any particular property or assets of the Employer as a result of participating in the Plan. Notwithstanding the foregoing, the Employer may (but shall not be obligated to) create one or more trusts, the assets of which are subject to the claims of the Employer’s creditors, to assist it in accumulating funds to pay its obligations under the Plan; provided, however, that the funding of a trust shall not occur if the Employer reasonably determines that such funding will likely result in taxable income to Participants by reason of Section 409A of the Code. In no event will any trust assets at any time be located or transferred outside of the United States within the meaning of Section 409A(b) of the Code.

Section 8.04. Employment Status. This Plan does not constitute a contract of employment or impose on the Salaried Employee or the Salaried Employee’s Employer any obligation for the Salaried Employee to remain an Employee or change the status of the Salaried Employee’s employment or the policies of the Employer regarding Separation from Service.

Section 8.05. Validity and Severability. The invalidity or unenforceability of any provision of the Plan shall not affect the validity or enforceability of any other provision of the Plan, which shall remain in full force and effect, and any prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

Section 8.06. Governing Law. The validity, interpretation, construction and performance of the Plan shall in all respects be governed by the laws of Colorado, without reference to principles of conflict of law, except to the extent preempted by federal law.

Section 8.07. Right of Offset. To the extent permitted by applicable law, the Employer may, in its sole discretion, apply any payments otherwise due and payable under this Plan against any Salaried Employee or terminated Salaried Employee loans outstanding to the Employer or other debts of the Salaried Employee or terminated Salaried Employee to the Employer which are reflected in a written, legally binding document. By accepting payments under this Plan, the Salaried Employee shall consent to the reduction of any compensation paid to the Salaried Employee by the Employer to the extent the Salaried Employee receives an overpayment from the Plan. Notwithstanding the foregoing, however, the Employer shall not offset any benefits payable pursuant to this Plan to the extent such offset would result in the imposition of taxes or penalties pursuant to Code Section 409A and the Treasury Regulations issued thereunder.

2012 Executive Change of Control Plan of Newmont

Effective January 1, 2012

Page 13 of 15


Section 8.08. Conformance With Applicable Laws. Notwithstanding anything contained herein to the contrary, this Plan shall be administered and operated in accordance with any applicable laws and regulations including but not limited to laws affecting the timing of payments to Salaried Employees. The Board or its delegate reserves the right to amend this Plan at any time in order for this Plan to comply with any such laws and regulations.

Section 8.09. Payments Due Minors or Incapacitated Persons. If any person entitled to a payment under this Plan is a minor, or if the Administration Committee or its delegate determines that any such person is incapacitated by reason of physical or mental disability, whether or not legally adjudicated as an incompetent, the Administration Committee or its delegate shall have the power to cause the payment becoming due to such person to be made to another for his benefit, without responsibility of the Administration Committee or its delegate, the Employer or any other person or entity to see to the application of such payment. Payments made pursuant to such power shall operate as a complete discharge of the Administration Committee, this Plan and the Employer.

Section 8.10. Distribution Delay for Specified Employees. In the case of a distribution to a Specified Employee due to the Specified Employee’s Separation from Service, and if the payment constitutes nonqualified deferred compensation determined in accordance with Code Section 409A and Treasury Regulations issued thereunder, such distribution may not be made before the date which is six months after the date of the Specified Employee’s Separation from Service with the Employer or, if earlier, the date of the Specified Employee’s death.

ARTICLE IX

DURATION, AMENDMENT AND TERMINATION

Section 9.01. Duration. Unless terminated by the Board, the Plan shall renew each January 1 and remain effective for the ensuing year. If a Change of Control occurs while this Plan is in effect, this Plan shall continue in full force and effect following such Change of Control and shall not terminate or expire until after all Salaried Employees who become entitled to any payments hereunder shall have received such payments in full.

Section 9.02. Amendment or Termination. The Board may amend or terminate this Plan upon 12 months notice to Plan participants, provided that this Plan may not be terminated or amended in a manner adverse to Salaried Employees (including modifying the eligibility of Employees to participate in the Plan) during a period beginning on the first day of the calendar month that is six months prior to the execution of a letter of intent or other agreement entered into in connection with a pending Change of Control and ending on the second anniversary of a Change of Control.

Section 9.03. Procedure for Extension, Amendment or Termination. Any extension, amendment or termination of this Plan by the Board in accordance with the foregoing shall be made by action of the Board in accordance with Newmont Mining’s charter and bylaws and applicable law.

2012 Executive Change of Control Plan of Newmont

Effective January 1, 2012

Page 14 of 15


The foregoing was adopted the 28th day of December, 2011.

NEWMONT USA LIMITED

By:

/s/ Stephen P. Gottesfeld

Name:

Stephen P. Gottesfeld

Title:

Vice President

2012 Executive Change of Control Plan of Newmont

Effective January 1, 2012

Page 15 of 15

 

 

 

 

 

 

 

 

 

EX-10.1 2 d566986dex101.htm EX-10.1

Exhibit 10.1

 

 

 

EXECUTIVE SEVERANCE PLAN OF NEWMONT

Amended and Restated Effective June 1, 2013

 

 

 


EXECUTIVE SEVERANCE PLAN OF NEWMONT

INTRODUCTION

Newmont USA Limited, and certain related entities (“Newmont”), hereby amends and restates this Executive Severance Plan of Newmont (the “Plan”) effective June 1, 2013 for the purpose of providing certain Executive Employees as defined below with severance benefits. The Plan was originally established effective October 26, 2011.

This Plan is intended to constitute a health and welfare benefit plan under the Employee Retirement Income Security Act of 1974 and not subject to the provisions of Internal Revenue Code Section 409A. Notwithstanding any provision herein to the contrary, Newmont explicitly reserves the right to amend or modify the Plan in any manner necessary to comply with any laws or regulations that may be determined by Newmont as applicable to the Plan.

ARTICLE I

DEFINITIONS

The definitions set forth in the Employee Benefits Plan shall apply for purposes of this Plan. In addition, the following definitions shall apply to the Plan.

Administration Committee” means the committee appointed by the Board or its delegate in writing which serves in accordance with Article VI.

Affiliated Entity” means any corporation or other entity, now or hereafter formed, that is or shall become affiliated with the Employer, either directly or indirectly, through stock ownership or control, and which is (a) included in the controlled group of corporations (within the meaning of Code Section 1563(a) without regard to Code Section 1563(a)(4) and Code Section 1563(e)(3)(C)) in which the Employer is also included or (b) included in the group of entities (whether or not incorporated) under common control (within the meaning of Code Section 414(c)) in which the Employer is also included.

Board” means the Board of Directors of Newmont USA Limited.

Cause” means: a) engagement in illegal conduct or gross negligence or willful misconduct, provided that if the Executive Employee acted in accordance with an authorized written opinion of Employer’s, or an affiliated entity’s, legal counsel, such action will not constitute “Cause;” b) any dishonest or fraudulent activity by the Executive Employee or the reasonable belief by the Employer of the Executive Employee’s breach of any contract, agreement or representation with the Employer or an affiliated entity, or c) violation of Newmont Mining Corporation’s Code of Business Ethics and Conduct.

Code” means the Internal Revenue Code of 1986, as amended.

Date of Termination” means the date on which an Executive Employee ceases to be an Employee of the Employer or its Affiliated Entities.


Disability” means a condition that causes the Employee to terminate employment with the Employer and/or all participating Employers and the Employee has immediately begun receiving benefits from a disability plan of Newmont following termination of employment.

Employee” means an employee of an Employer who is not (a) an individual who performs services for the Employer under an agreement, contract or arrangement (which may be written, oral or evidenced by the Employer’s payroll practice) between the Employer and the individual or with any other organization that provides the services of the individual to the Employer pursuant to which the individual is initially classified or treated as an independent contractor or whose remuneration for services has not been treated initially as subject to the withholding of federal income tax pursuant to Code Section 3401, or who is otherwise treated as an employee of an entity other than the Employer, irrespective of whether he or she is treated as an employee of the Employer under common-law employment principles or pursuant to the provisions of Code Section 414(m), 414(n) or 414(o), even if the individual is subsequently reclassified as a common-law employee as a result of a final decree of a court of competent jurisdiction, the settlement of an administrative or judicial proceeding or a determination by the Internal Revenue Service, the Department of the Treasury or the Department of Labor, (b) an individual who is a leased employee, (c) a temporary employee, or (d) an individual covered by a collective bargaining agreement.

Employer” means Newmont USA Limited and any Affiliated Entities.

ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

Executive Employee” means an Employee with the classification or title of Chief Executive Officer (“CEO”), Executive Vice President (“E2-E3”), Senior Vice President (“E4”), Vice President (“E5”), Group Executive (“E6”) or Director (“109”) and is on the Newmont’s United States payroll.

Involuntary Termination” means any involuntary termination of employment of an Executive Employee by the Employer for any reason other than: (a) Cause, as determined in the sole discretion of Employer, (or if after termination it is determined the Executive Employee could have been terminated for Cause), (b) termination of employment due to disability under a disability plan of Newmont (as determined by the Administration Committee or its delegate in its sole discretion), (c) retirement as of Normal or Early Retirement pursuant to the Pension Plan of Newmont as those terms are defined therein, and (d) death of the Executive Employee prior to termination of employment. An Involuntary Termination shall not be deemed to have occurred if the Executive Employee accepts any position with Employer, or the Employer offers the Executive Employee employment within a 75 mile radius of the Executive Employee’s prior position, at Executive Employee’s same or higher annual base salary and within one compensation grade level of Executive Employee’s prior position.

Plan” means this Executive Severance Plan of Newmont.

Salary” means the Executive Employee’s annual base salary as of termination of employment. Salary shall not include any extra pay for foreign service or foreign assignment, hardship pay, moving allowances, the cost of goods and services, danger pay, the value of any stock/equity based compensation (including but not limited to stock options, deferred stock, restricted stock, restricted stock units, common stock or performance stock units).

 

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Service” means continuous service with the Employer or an Affiliated Entity commencing on the Executive Employee’s date of hire and each successive 12-month period.

ARTICLE II

ELIGIBILITY

Section 2.01. General Eligibility Requirements. The benefits provided under this Plan will be available to any Executive Employee employed by Newmont or any of its U.S. based affiliates in salary grades 109 to E-1 at the time of termination of employment provided the following requirements are met:

(a) The Executive Employee leaves employment with the Employer due to Involuntary Termination; and

(b) The Executive Employee delivers to the Administration Committee or its delegate, an executed Waiver and Release that conforms to Section 7.05 and the Waiver and Release becomes irrevocable not later than seventy (70) days following the date of the Executive Employee’s Involuntary Termination (or such earlier date as is indicated on such Waiver and Release). The Company shall furnish such a Waiver and Release to Executive Employee no later than twenty-five (25) days following the Executive Employee’s Involuntary Termination.

Subject to the coordination provisions of Section 3.02 pertaining to change in control plans, if an Executive Employee is eligible for benefits under this Plan, the Executive Employee shall not be entitled to severance benefits under any other severance plan of Newmont, including but not limited to the Severance Plan of Newmont.

Section 2.02. Voluntary Special Retirement Program. Notwithstanding anything in this Article II to the contrary, an individual who receives benefits under a voluntary special retirement program shall not be eligible to receive any benefit under this Plan unless otherwise specified by the Board or its delegate.

ARTICLE III

BENEFITS

Section 3.01. Basic Severance Benefits. Severance benefits shall consist of a portion of Salary calculated as follows:

 

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Salary Schedule by Grade

 

Salary Grade

  

Benefit

CEO

  

E1

  

24 months of Salary

EVP

  

E2

E3

  

15 months of Salary + 1 month of Salary for every year of Service up to a maximum total of 18 months of Salary

SVP

  

E4

  

12 months of Salary + 1 month of Salary for every year of Service up to a maximum total of 15 months of Salary

VP

  

E5

  

12 months of Salary

Group Executive

  

E6

  

9 months of Salary + 1 month of Salary for every year of Service up to a maximum total of 12 months of Salary

Senior Director

  

109

  

6 months of Salary + 1 month of Salary for every year of Service up to a maximum total of 9 months of Salary

Monthly Salary is determined in one-twelfth increments based on regular annual Salary at the time of termination of employment.

Section 3.02. Coordination With Certain Change in Control Programs. If an Executive Employee who is eligible for benefits and payments under this Plan is also eligible to receive benefits and payments under a change of control plan of Newmont, the Executive Employee shall only be entitled to receive payments and benefits under this Plan or under the applicable change of control plan, but not both, and shall be entitled to receive the greater of the benefits and payments otherwise payable under this Plan or the benefits and payments otherwise payable under the applicable change of control plan.

Section 3.03. Payment of Severance Benefits. The amount of severance benefits payable to an Executive Employee under this Article III shall be paid in a single cash lump sum as soon as administratively possible following the date of the Executive Employee’s termination of employment and the Executive Employee’s execution of a release described in Section 7.05 and the expiration of the applicable revocation period. Such amount shall be paid no later than the fifteenth day of the third month following the year in which the Executive Employee met the requirements to receive benefits under this Plan.

Section 3.04. Other Benefits.

(a) Medical, Vision, Prescription Drug and Dental Coverage. An Executive Employee who is eligible to receive severance benefits under this Plan will be entitled to Employer paid Consolidated Omnibus Budget Reconciliation Act (“COBRA”) coverage for medical, vision, prescription drug and dental plan (if and as such plans then exist) for a period of months equal to the number of months of Salary that the Executive Employee receives as a severance benefit as determined under Article III, if the Executive Employee elects COBRA coverage. However, in no event shall the Employer paid COBRA coverage extend beyond the period of time that the Executive Employee would otherwise be entitled to continue coverage under the provisions of COBRA. The COBRA period will run concurrent with medical coverage provided for under this Section. In the event the number of months of salary paid as a severance benefit is less than the Employee’s COBRA period, COBRA coverage shall continue at the Employee’s expense for the remaining COBRA period.

 

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(b) Life Insurance Plan. An Executive Employee will continue to be covered under the basic group term life insurance portion of the Employer’s life insurance and accidental death and dismemberment insurance plan (the “Life Insurance Plan”) (if and as such plan then exists) to the extent such benefits are paid by the Employer insuring the lives of the Executive Employee and his spouse for a period of months equal to the number of months of Salary that the Executive Employee receives as a severance benefit, but such coverage under the Life Insurance Plan shall not exceed six months from the date of the Executive Employee’s termination of employment. Coverage under the Life Insurance Plan will cease at the end of such period without any notification by the Employer to the Executive Employee. Any supplemental life insurance coverage and accidental death and dismemberment coverage under the Life Insurance Plan will terminate on the Executive Employee’s termination of employment.

(c) Outplacement Services. An Executive Employee who is eligible to receive severance benefits under this Plan will be entitled to outplacement services with a vendor of Employer’s choice for the period determined by Employer, not to exceed 12 months beginning with the month immediately following termination of employment.

(d) Controlling Plan Provisions. Benefits provided pursuant to this Section 3.04 shall be governed by the respective benefit plans including rules pertaining to HIPAA, COBRA and claims for benefits.

Section 3.05. Return of Benefits in the Event of Cause. In the event the Employer determines that Cause existed for the termination of an Executive Employee’s employment after the Executive Employee has been offered or received benefits pursuant to this Plan, the Employer shall be entitled to recover such amounts from the Executive Employee or offset any other amounts owed by the Employer to the Executive Employee.

Section 3.06. Offset for Worker Adjustment and Retraining Notification Act Benefits. In the event an Executive Employee is entitled to benefits under the Plan and is also entitled to benefits under the Worker Adjustment and Retraining Notification Act (“WARN”), then any salary paid during a WARN notice period, and any medical, vision, prescription drug and dental and life insurance coverage during a WARN notice period shall reduce the payments and benefits to the Executive Employee under sections 3.01, 3.02 and 3.05 of this Article III of the Plan. In the event an Executive Employee’s benefits under this Plan are exhausted by the payments with respects to the WARN notice period, such Salaried Employee shall not be entitled to any benefits under this Plan.

 

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ARTICLE IV

CONTINUATION OF HEALTH CARE COVERAGE

Continuation of coverage under the Plan shall be permitted only with respect to health coverage described in Section 3.04(a) in accordance with the applicable health plan and Section 3.04(a) of this Plan. No continuation of coverage is otherwise permitted under this Plan.

ARTICLE V

PROTECTION OF MEDICAL PRIVACY

The Plan is generally not subject to HIPAA. HIPAA shall apply only with respect to medical benefits described in Section 3.04(a) in accordance with the applicable health plan.

ARTICLE VI

ADMINISTRATION COMMITTEE AND CLAIMS FOR BENEFITS

Section 6.01. Appointment of the Administration Committee. The Board or its delegate shall appoint the members of the Administration Committee who may be, but need not be, officers, directors or Employees of Newmont. The members of the Administration Committee shall hold office at the pleasure of the Board and shall serve without compensation.

Section 6.02. Responsibilities of the Administration Committee. The Administration Committee shall be responsible for the administration, operation and interpretation of the Plan. The Administration Committee shall establish rules from time to time for the transaction of its business. The Administration Committee shall have the exclusive right to interpret the Plan’s provisions and to exercise discretion where necessary or appropriate in the interpretation and administration of the Plan and to decide any and all matters arising thereunder or in connection with the administration of the Plan. Such decisions, actions and records of the Administration Committee shall be conclusive and binding upon all persons having or claiming to have any right or interest in or under the Plan. Any decisions by the Administration Committee in respect of eligibility for benefits under the Plan shall be subject to de novo review.

The Administration Committee may delegate some or all of its authority under the Plan to any person, persons or entities. The Administration Committee may remove any duly appointed delegate at any time at its sole discretion.

Section 6.03. Organization of the Administration Committee. The Administration Committee shall adopt such rules as it deems desirable for the conduct of its affairs and for the administration of its duties under the Plan. The Administration Committee may appoint agents (who need not be members of the Administration Committee) to whom it may delegate such powers as it deems appropriate. The Administration Committee may make its determinations with or without meetings, and it may authorize one or more of its members or agents to sign instructions, notices and determinations on its behalf. Any action taken by the Administration Committee shall be taken by a majority of the members attending a meeting of the Administration Committee (provided at least a majority of the Administration Committee members are at such meeting) or by a majority of the members of the Administration Committee executing a written instrument setting forth the action taken.

 

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Section 6.04. Indemnification of Administration Committee Members. Newmont shall indemnify the members of the Administration Committee against any and all claims, loss, damages, expense (including attorney fees) and liability arising from any action or failure to act, except when the same is judicially determined to be due to the gross negligence or willful misconduct of such member. Such indemnification shall include the Administration Committee members or any individuals delegated authority by the Administration Committee if such individuals are employed by Newmont or an Affiliated Entity. Newmont does not hereby indemnify any entity or person that is not an Employee of Newmont or an Affiliated Entity. The indemnification provided hereunder shall continue as to a person who has ceased acting as a director, officer, member, agent or Employee of the Employer, and such person’s rights shall inure to the benefit of his heirs and representatives.

Section 6.05. Benefits Claims and Appeals. The intention of Newmont is that the Plan be construed as a “welfare plan,” as defined in Section 3(1) of ERISA, and this Section 6.05 shall apply. The Administration Committee shall establish a claims and appeals procedure applicable to persons eligible to participate in the Plan. Unless otherwise required by applicable law, such procedures will provide that any such person has not less than 60 days following receipt of any adverse benefit determination within which to appeal the determination in writing with the Administration Committee, and that the Administration Committee must respond in writing within 60 days of receiving the appeal, specifically identifying those Plan provisions on which the benefit denial was based and indicating what, if any, information such person must supply in order to perfect a claim for benefits. The claims procedures of this Section must be exhausted prior to an individual bringing a legal claim or action for benefits under the Plan.

ARTICLE VII

MISCELLANEOUS

Section 7.01. Plan Documentation. This Plan shall constitute the “plan document” for purposes of ERISA and other laws that may apply. In the event the provisions of this Plan are inconsistent with other documents or communications, the provisions of this Plan shall control.

Section 7.02. Funding of Severance Benefits. All severance benefit payments under this Plan will be made by the Employer from its general funds and no Executive Employee shall have any right with respect to any specific assets of the Employer and shall be a general creditor of the Employer with respect to any amounts payable hereunder.

Section 7.03. Amount Payable Upon Death of Eligible Participant. If an Executive Employee dies after an Involuntary Termination of employment under the provisions of this Plan but before receiving payment of the amount due hereunder, such amount shall be paid, in a cash lump sum, to the beneficiary or beneficiaries designated by the Executive Employee to receive life insurance proceeds under the Employer’s Life Insurance Plan. In the absence of an effective beneficiary designation, any amount payable hereunder following the death of an Executive Employee shall be paid to the Executive Employee’s estate.

 

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Section 7.04. Confidential Information. Each Executive Employee shall hold in a fiduciary capacity for the benefit of the Employer all secret or confidential information, knowledge or data relating to the Employer or any of its Affiliated Entities, and their respective businesses, which shall have been obtained by the Executive Employee during the Executive Employee’s employment by the Employer or any of its Affiliated Entities and which shall not be or become public knowledge (other than by acts by the Executive Employee or representatives of the Executive Employee in violation of this Plan). As a condition of participation in this Plan, after termination of an Executive Employee’s employment with the Employer, the Executive Employee shall not, without the prior written consent of the Employer or as may otherwise be required by law or legal process, communicate or divulge any such information, knowledge or data to anyone other than the Employer and those designated by it.

Section 7.05. Release. As a condition to receipt of any benefits under this Plan, an Executive Employee eligible to receive benefits under this Plan shall execute a Waiver and Release, under which the Executive Employee: (a) releases the Employer and Affiliated Entities and any director, officer, Employee, agent or representative from any cause of action arising out of the Executive Employee’s employment with and termination from an Employer; (b) agrees to non-disparagement of Employer and Affiliated Entities, and; (c) agrees to a non-solicitation clause of Employer’s and Affiliated Entities’ Employees. Such release shall include, but shall not be limited to, a waiver by the Executive Employee of pursuit of any action based on wrongful termination, state or federal nondiscrimination in employment laws or state and federal compensation and benefits laws (including ERISA).

Section 7.06. Employment Status. This Plan does not constitute a contract of employment or impose on the Employee or the Employer any obligation for the Employee to remain an Employee or change the status of the Executive Employee’s employment or the policies of the Employer regarding termination of employment.

Section 7.07. Validity and Severability. The invalidity or unenforceability of any provision of the Plan shall not affect the validity or enforceability of any other provision of the Plan, which shall remain in full force and effect, and any prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

Section 7.08. Governing Law. The validity, interpretation, construction and performance of the Plan shall in all respects be governed by the laws of Colorado, without reference to principles of conflict of law, except to the extent preempted by federal law.

Section 7.09. Right of Offset. To the extent permitted by applicable law, the Employer may, in its sole discretion, apply any payments otherwise due and payable under this Plan against Employee or terminated Employee loans outstanding to the Employer or other debts of the Employee or terminated Employee to the Employer. By accepting payments under this Plan, the Executive Employee shall consent to the reduction of any compensation paid to the Executive Employee by the Employer to the extent the Executive Employee receives an overpayment from the Plan. Notwithstanding the foregoing, however, the Employer shall not offset any benefits payable pursuant to this Plan to the extent such offset would result in the imposition of taxes or penalties pursuant to Code Section 409A and the Treasury Regulations issued thereunder.

 

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Section 7.10. Conformance With Applicable Laws. Notwithstanding anything contained herein to the contrary, this Plan shall be administered and operated in accordance with any applicable laws and regulations, including, but not limited to, laws affecting the timing of payments to Employees. The Board or its delegate reserves the right to amend this Plan at any time in order for this Plan to comply with any such laws and regulations.

Section 7.11. Payments Due Minors or Incapacitated Persons. If any person entitled to a payment under this Plan is a minor, or if the Administration Committee or its delegate determines that any such person is incapacitated by reason of physical or mental disability, whether or not legally adjudicated as an incompetent, the Administration Committee or its delegate shall have the power to cause the payment becoming due to such person to be made to another for his benefit, without responsibility of the Administration Committee or its delegate, the Employer or any other person or entity to see to the application of such payment. Payments made pursuant to such power shall operate as a complete discharge of the Administration Committee, this Plan and the Employer.

ARTICLE VIII

DURATION, AMENDMENT AND TERMINATION

Section 8.01. Duration. Unless terminated by the Board, the Plan shall remain effective hereafter.

Section 8.02. Amendment or Termination. The Board may amend or terminate this Plan, at its sole discretion.

*The remainder of this page is intentionally left blank.

 

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The Plan Sponsor, by its duly authorized officer, has executed the Plan on the date written below.

 

Dated: May 30, 2013

 

 

NEWMONT USA LIMITED, Plan Sponsor

 

 

 

 

 

By

 

/s/ Stephen P. Gottesfeld

 

 

Name

 

Stephen P. Gottesfeld

 

 

Title

 

Vice President

 

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