{"id":38487,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/agreement-with-respect-to-estate-tax-equalization-newmont-gold.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"agreement-with-respect-to-estate-tax-equalization-newmont-gold","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/agreement-with-respect-to-estate-tax-equalization-newmont-gold.html","title":{"rendered":"Agreement with Respect to Estate Tax Equalization &#8211; Newmont Gold Co. and John Dow"},"content":{"rendered":"<pre>                            AGREEMENT WITH RESPECT TO\n                             ESTATE TAX EQUALIZATION\n\n         This Agreement With Respect to Estate Tax Equalization ('Agreement') is\nmade by and between Newmont Gold Company, a Delaware corporation (referred to as\n'Newmont'), and John Dow, an executive of Newmont (referred to as 'Executive'),\nand Executive's spouse (referred to as 'Spouse').\n\n                                    RECITALS.\n\n         A. Executive is a salaried executive employee of Newmont.\n\n         B. Neither Executive nor Spouse are United States citizens.\n\n         C. Newmont has requested that Executive and Spouse obtain a United\nStates Alien Registration Receipt Card (referred to as a 'Green Card').\n\n         D. Executive has advised Newmont that obtaining a Green Card (and\npossibly mere application for a Green Card) could result in characterization of\nthe Executive and his wife as 'residents' for purposes of United States Estate\nTaxes, and consequently, could result in the imposition of United States Estate\nTaxes on the Executive and Spouse's worldwide assets.\n\n         E. Executive and Newmont have agreed that the imposition of such United\nStates Estate Taxes may in many cases be worse than the taxation for other\nNewmont executive employees who are United States citizens and that such adverse\ntax consequence could occur on the death of either Executive or Spouse.\n\n         F. Newmont desires that its executive employees (and, consequently,\ntheir spouses) who are not United States citizens obtain sufficient immigration\nlaw status in the United States to ensure their uninterrupted ability to reside\nin and conduct business in the United States; however, Newmont does not wish\nthis desire to create a disparity in treatment between United States citizen\nexecutive employees and non-United States citizen executive employees.\n\n         G. Therefore, Newmont has agreed to make payments to the Executive, as\nset forth in this Agreement, computed in amounts intended to be utilized by the\nExecutive and Spouse to eliminate the disparate treatment.\n\n         NOW, THEREFORE, in consideration of the foregoing, and for other good\nand valuable consideration, the receipt and sufficiency of which are hereby\nacknowledged, Executive, Spouse and Newmont agree as follows:\n\n\n\n\n\n\n         1. Tax Equalization Payment. Newmont agrees to pay Executive during the\nterm of this Agreement (as defined in Section 4 hereof) at least annually, on or\nbefore December 1 of each year (or in the case of the first payment after\nexecution of this Agreement within 60 days thereafter) (referred to as the\n'Payment Date'), an amount (referred to as the 'Tax Equalization Payment') equal\nto the sum of the following:\n\n                  (a) the annual premium for such calendar year for guaranteed\nrenewable term life insurance with at least a ten year level premium structure\nand insuring the life of Executive in the amount of $5,000,000 in death benefits\n(referred to as the 'Executive Premium');\n\n                  (b) the annual premium for such calendar year for guaranteed\nrenewable term life insurance with at least a ten-year level premium structure\nand insuring the life of Spouse in an amount of $1,000,000 in death benefits\n(referred to as the 'Spousal Premium'); and\n\n                  (c) the additional income taxes for the calendar year which\nincludes the Payment Date estimated to be imposed by the United States federal\ngovernment, state governments, local governments and other non-United States\njurisdictions and payable by Executive or Spouse with respect to payment by\nNewmont of the Tax Equalization Payment (referred to as the 'Tax Gross-Up\nAmount').\n\n         2. Determination of Executive Premium, Spousal Premium and Tax Gross-Up\nAmount.\n\n                  (a) Payment Notice. On or before the 60th day before the\nPayment Date (or in the case of the first payment after execution of this\nAgreement, within 45 days after such execution), the Executive shall deliver to\nNewmont at the address listed in Section 16 of this Agreement a notice setting\nforth the amounts of the Executive Premium, Spousal Premium and estimated Tax\nGross-Up Amount for the calendar year in which the Payment Date is included.\n\n                  (b) Disagreement Notice. Newmont must send to the Executive on\nor before 30 days before the Payment Date a notice (or in the case of the first\npayment after the execution of this Agreement, within 50 days after such\nexecution) ('Disagreement Notice') setting forth specific disagreement with any\nsuch amount of the Executive Premium, Spousal Premium or estimated Tax Gross-Up\nAmount and the specific reasons for the disagreement; otherwise, Newmont must\npay the full amount of the Tax Equalization Payment shown on the Payment Notice\nby the Payment Date or be in default under this Agreement.\n\n                  (c) Process For Resolving Disagreement. If Newmont delivers a\nDisagreement Notice, and Newmont and the Executive fail to resolve their\ndisagreement and \n\n\n                                       2\n\n\nagree in writing on an amount of the Tax Equalization Payment before the Payment\nDate, Newmont must nonetheless make full payment of the Tax Equalization Payment\nset forth on the Payment Notice on the Payment Date. Thereafter, Newmont may\npursue its disagreement in accordance with the rules of arbitration under the\nAmerican Arbitration Association, but until resolution, this Agreement shall\nremain in full force and effect with respect to future payments; provided,\nhowever, that the Executive shall remain liable to Newmont (without interest)\nfor any overpayments finally determined by such arbitration.\n\n         3. Periodic Adjustment of Insurance Amounts.\n\n                  (a) Acknowledgment of Adjustment. Because the Tax Equalization\nPayment is intended to provide funds to maintain life insurance in amounts\nsufficient to eliminate any disparities in United States Estate Taxes between\nExecutive and Spouse and other citizen executive employees, Newmont agrees to a\nperiodic review and, if requested (as set forth below), an increase in the\namount of the Tax Equalization Payment based upon the financial condition of\nExecutive and Spouse, subject to the limitation set forth in paragraph (c) below\nof this Section 3.\n\n                  (b) Procedure for Adjustment. At any time during the term of\nthis Agreement, as part of the Payment Notice, the Executive may request higher\npayments to reflect premiums for insurance coverage in amounts greater than\nthose set forth in Section 1, based upon an increase in financial worth of the\nExecutive and Spouse or a change in applicable law, either of which would\nincrease the disparity between Executive and Spouse and other citizen executive\nemployees; provided, however, that the Payment Notice must include a\nconfidential statement of such financial condition or applicable law. The\nprovisions of Section 2 shall govern any disagreement between Executive and\nNewmont regarding the amounts set forth in the Payment Notice, it being the\nintention of the parties that if Newmont delivers a Disagreement Notice, and\nNewmont and the Executive fail to resolve their disagreement and agree in\nwriting on an amount of the Tax Equalization Payment before the Payment Date,\nincluding the requested increased amount, Newmont must nonetheless make full\npayment of the Tax Equalization Payment set forth on the Payment Notice on the\nPayment Date, so that applicable insurance coverage does not lapse, and\nthereafter Newmont may pursue arbitration of the disagreement pursuant to\nSection 2. Newmont agrees that it shall use its best efforts to ensure the\nconfidentiality of any financial information provided to its agents and\nemployees in connection with this Agreement.\n\n                  (c) Limitation on Tax Equalization Payment. Notwithstanding\nany other provision of this Agreement, the Company shall not be required to make\npayment of a Tax Equalization Payment which exceeds the sum of the following:\n\n\n                                       3\n\n\n\n\n\n\n\n                     (i) the annual premium for such calendar year for\nguaranteed renewable term life insurance with a level premium structure for a\nterm ending on the date which is ten years after the effective date of this\nAgreement and insuring the life of Executive in the amount of $10,000,000 in\ndeath benefits;\n\n                     (ii) the annual premium for such calendar year for\nguaranteed renewable term life insurance with a level premium structure for a\nterm ending on the date which is ten years after the effective date of this\nAgreement and insuring the life of Spouse in an amount of $3,000,000 in death\nbenefits; and\n\n                     (iii) the additional income taxes for the calendar year\nwhich includes the Payment Date estimated to be imposed by the United States\nfederal government, state governments, local governments and other non-United\nStates jurisdictions and payable by Executive or Spouse with respect to payment\nby Newmont of the Tax Equalization Payment.\n\n                  (d) Effect of Uninsurability. Notwithstanding any provision of\nthis Agreement to the contrary, Newmont shall only be liable under this\nAgreement to pay to Executive amounts equal to the Executive Premium, the\nSpousal Premium and the Tax Gross-Up Amount with respect to guaranteed renewable\nterm life insurance in effect or which can be obtained to insure the lives of\nthe Executive and the Spouse, respectively, pursuant to the terms of this\nAgreement. Other than Newmont's obligation to pay to Executive amounts equal to\nthe Executive Premium, the Spousal Premium and the Tax Gross-Up Amount with\nrespect to guaranteed renewable term life insurance in effect or which can be\nobtained to insure the lives of the Executive and the Spouse as set forth in\nthis Agreement, Newmont shall have no other liability or obligation to pay or\nreimburse Executive for any costs or taxes that may result in the event the\nExecutive or the Spouse shall be or become uninsurable and unable to obtain\nadditional insurance under this Agreement.\n\n         4. Term of this Agreement. The term of this Agreement shall be from the\ndate this Agreement is executed until the sooner of (a) ten years from such\ndate, (b) one year after the death or voluntary retirement of the Executive or\nthe Executive's termination of employment by Newmont (or any of its subsidiaries\nor affiliates) for a reason other than voluntary retirement, or (c) complete\nrepeal of laws imposing United States federal, state or local estate,\ninheritance, succession or other taxes or governmental assessments or charges\nimposed by reason of the death of either the Executive or the Spouse, provided\nthat such repeal is not temporary and will be applicable for at least that\nperiod of time ending on the earlier of either (i) ten years from the date this\nAgreement is executed, or (ii) one year after the death or voluntary retirement\nof the Executive or the Executive's termination of employment by Newmont (or any\nof its subsidiaries or affiliates) for a reason other than voluntary retirement.\n\n         5. Effect of Marital Dissolution. Notwithstanding any other provision\nof this Agreement, if the marriage of Executive and Spouse at any time during\nthe term of this Agreement is dissolved or terminated by entry of an Order of\nMarital Dissolution or similar\n\n\n                                       4\n\n\norder of any court of competent jurisdiction, Spouse shall no longer be entitled\nto any benefits under this Agreement, and the obligation of the Company to pay\nto Executive that portion of the amount of the Tax Equalization Payment equal to\nthe Spousal Premium shall immediately cease. At such time, any such insurance\npolicy insuring the life of the Spouse shall be terminated, and any amounts of\npremiums shall be refunded and returned to the Company; provided, however, that\nif such premium payment has already been made by Company and no such premiums\nare refunded, there shall be no obligation on Executive or Spouse to return or\nrepay any amounts to the Company.\n\n         6. Binding Effect. This Agreement shall be binding upon the parties\nhereto and their heirs, personal representatives, administrators, successors,\nassigns and any other transferee.\n\n         7. Remedies. All rights and remedies under this Agreement shall be\ncumulative and non-exclusive, and the rights and remedies provided by this\nAgreement are cumulative and the use of any one right or remedy by any party\nshall not preclude or waive the right to use any or all other remedies. Said\nrights and remedies are given in addition to any other rights the parties may\nhave by law, statute, ordinance or otherwise.\n\n         8. Governing Law. This Agreement shall in all respects be subject to,\nand governed by, the laws of the State of Colorado.\n\n         9. Entire Agreement. The parties hereto expressly acknowledge that this\nAgreement constitutes the entire contract between the parties concerning the\nmatters provided in this Agreement. Any other agreements or understandings, oral\nor written, of any nature with respect to such matters are hereby superseded and\nrevoked.\n\n         10. Amendment. This Agreement shall not be modified or amended except\nby means of a writing signed by the Executive, Spouse and one or more officers\nduly authorized to act on behalf of Newmont.\n\n         11. Counterparts. This Agreement may be executed and delivered in any\nnumber of counterparts, all of which when executed and delivered shall have the\nforce and effect of an original.\n\n         12. 'Days' Defined. Any reference in this Agreement to 'days' means all\ncalendar days, inclusive of Saturdays, Sundays and days which are legal holidays\nunder the laws of the United States or Colorado.\n\n\n                                       5\n\n\n\n\n         13. Construction. Throughout this Agreement, the singular shall include\nthe plural, the plural shall include the singular and the masculine shall\ninclude the feminine and neuter genders wherever the context so requires.\n\n         14. Titles, Headings or Captions. The titles, headings or captions in\nthe sections or paragraphs of this Agreement are inserted for convenience of\nreference only and shall not constitute a part of this Agreement.\n\n         15. Execution and Delivery of Documents. Each of the parties hereto,\nhis or her heirs, legal representatives, successors and assigns, shall do all\nthings to execute and delivery any and all documents which may be necessary at\nany time to carry out and effectuate the terms and conditions of this Agreement.\n\n         16. Notices. Any notice, demand or communication required or permitted\nto be given by any provision of this Agreement shall be deemed to have been\nsufficiently given or served for all purposes (1) if delivered personally to the\nparty or to an executive officer of the party to whom the same is directed; (2)\nif sent by registered or certified mail, postage and charges prepaid, or by a\nrecognized overnight delivery service, addressed to the address, as appropriate,\nwhich is set forth in this Agreement; or (3) upon facsimile transmission to the\nfacsimile number, as shown in this Agreement, of the party being notified.\nExcept as otherwise provided herein, any such notice shall be deemed to be given\nunder clause (1) upon delivery; under clause (2) two business days after mailing\nor one business day after delivery by the overnight delivery service; or under\nclause (3) upon completion of the facsimile transmission. For purposes of the\nforegoing, notices shall be sent as follows:\n\n                           To Executive and Spouse:\n\n                           John Dow\n                           457 Clayton Street\n                           Denver, CO   80206\n\n                           To Newmont:\n\n                           Newmont Mining Corporation\n                           1700 Lincoln Street\n                           Denver, CO   80203\n\n         17. Waivers. The failure of any party to seek redress for violation of\nor to insist upon the strict performance of any covenant or condition of this\nAgreement shall not prevent a subsequent act, which would have originally\nconstituted a violation, from having the effect of an original violation.\n\n                                       6\n\n\n         18. Severability. If any provision of this Agreement or the application\nthereof to any Person or circumstance shall be illegal, invalid or unenforceable\nto any extent, the remainder of this Agreement and the application thereof shall\nnot be affected and shall be enforceable to the fullest extent permitted by law.\nFurthermore, a new provision shall automatically be deemed added to this\nAgreement in lieu of such illegal, invalid or unenforceable provision, which new\nprovision is as similar in terms to such illegal, invalid or unenforceable\nprovision as is possible with the new provision still being legal, valid and\nenforceable.\n\n         19. Reliance on Authority of Person Signing Agreement. With respect to\nNewmont, Executive or Spouse shall not (1) be required to determine the\nauthority of the individual signing this Agreement to make any commitment or\nundertaking on behalf of Newmont or to determine any fact or circumstance\nbearing upon the existence of the authority of such individual or (2) be\nrequired to see to the application or distribution of proceeds paid or credited\nto individuals signing this Agreement on behalf of Newmont.\n\n                             EXECUTIVE:\n\n                             \/s\/ John Dow\n                             --------------------------------\n                             John Dow\n\n                             Dated: August 20, 1999\n\n                             SPOUSE:\n\n                             \/s\/ Linda Dow\n                             --------------------------------\n                             Linda Dow\n\n                             Dated: August 20, 1999\n\n                             NEWMONT:\n\n                             Newmont Gold Company, a Delaware corporation\n\n                             By: \/s\/ Steven A. Conte\n                                 ----------------------------\n                                 Steven A. Conte\n                                 Vice President, Human Resources\n                                 Dated: August 20, 1999\n\n\n\n                                       7\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8347],"corporate_contracts_industries":[9483],"corporate_contracts_types":[9539,9544],"class_list":["post-38487","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-newmont-mining-corp","corporate_contracts_industries-materials__metals","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/38487","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=38487"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38487"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38487"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38487"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}