{"id":39414,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-agreement-newmont-mining-corp-and-lawrence-t.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-newmont-mining-corp-and-lawrence-t","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-newmont-mining-corp-and-lawrence-t.html","title":{"rendered":"Employment Agreement &#8211; Newmont Mining Corp. and Lawrence T. Kurlander"},"content":{"rendered":"<pre>                              EMPLOYMENT AGREEMENT\n\n                  AGREEMENT by and between Newmont Mining Corporation, a\nDelaware corporation (the 'Company'), Newmont Gold Company, a Delaware\ncorporation ('Newmont Gold'), and Lawrence T. Kurlander (the 'Executive'), dated\nas of the 1st day of February, 1999.\n\n                  The Board of Directors of the Company (the 'Board'), has\ndetermined that it is in the best interests of the Company and its shareholders\nto assure that the Company will have the continued dedication of the Executive,\nnotwithstanding the possibility, threat or occurrence of a Change of Control (as\ndefined below) of the Company. The Board believes it is imperative to diminish\nthe inevitable distraction of the Executive by virtue of the personal\nuncertainties and risks created by a pending or threatened Change of Control and\nto encourage the Executive's full attention and dedication to the Company\ncurrently and in the event of any threatened or pending Change of Control, and\nto provide the Executive with compensation and benefits arrangements upon a\nChange of Control which ensure that the compensation and benefits expectations\nof the Executive will be satisfied and which are competitive with those of other\ncorporations. Therefore, in order to accomplish these objectives, the Board has\ncaused the Company to enter into this Agreement.\n\n                  NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:\n\n         1. CERTAIN DEFINITIONS. (a) The 'Effective Date' shall mean the first\ndate during the Change of Control Period (as defined in Section 1(b)) on which a\nChange of Control (as defined in Section 2) occurs. Anything in this Agreement\nto the contrary notwithstanding, if a Change of Control occurs and if the\nExecutive's employment with the Company is terminated prior to the date on which\nthe Change of Control occurs, and if it is reasonably demonstrated by the\nExecutive that such termination of employment (i) was at the request of a third\nparty who has taken steps reasonably calculated to effect a Change of Control or\n(ii) otherwise arose in connection with or anticipation of a Change of Control,\nthen for all purposes of this Agreement the 'Effective Date' shall mean the date\nimmediately prior to the date of such termination of employment.\n\n         The 'Change of Control Period' shall mean the period commencing on the\ndate hereof and ending on the third anniversary of the date hereof; provided,\nhowever, that commencing on the date one year after the date hereof, and on each\nannual anniversary of such date (such date and each annual anniversary thereof\nshall be hereinafter referred to as the 'Renewal Date'), unless previously\nterminated, the Change of Control Period shall be automatically extended so as\nto terminate three years from such Renewal Date, unless at least 60 days prior\nto the Renewal Date the Company shall give notice to the Executive that the\nChange of Control Period shall not be so extended.\n\n         2. CHANGE OF CONTROL. For the purpose of this Agreement, a 'Change of\nControl' shall mean:\n\n\n\n\n         (a) The acquisition by any individual, entity or group (within the\nmeaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,\nas amended (the 'Exchange Act')) (a 'Person') of beneficial ownership (within\nthe meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of\neither (i) the then outstanding shares of common stock of the Company (the\n'Outstanding Company Common Stock') or (ii) the combined voting power of the\nthen outstanding voting securities of the Company entitled to vote generally in\nthe election of directors (the 'Outstanding Company Voting Securities');\nprovided, however, that for purposes of this subsection (a), the following\nacquisitions shall not constitute a Change of Control: (i) any acquisition\ndirectly from the Company, (ii) any acquisition by the Company, (iii) any\nacquisition by any employee benefit plan (or related trust) sponsored or\nmaintained by the Company or any corporation controlled by the Company or (iv)\nany acquisition by any corporation pursuant to a transaction which complies with\nclauses (i), (ii) and (iii) of subsection (c) of this Section 2; or\n\n         (b) Individuals who, as of the date hereof, constitute the Board (the\n'Incumbent Board') cease for any reason to constitute at least a majority of the\nBoard; provided, however, that any individual becoming a director subsequent to\nthe date hereof whose election, or nomination for election by the Company's\nshareholders, was approved by a vote of at least a majority of the directors\nthen comprising the Incumbent Board shall be considered as though such\nindividual were a member of the Incumbent Board, but excluding, for this\npurpose, any such individual whose initial assumption of office occurs as a\nresult of an actual or threatened election contest with respect to the election\nor removal of directors or other actual or threatened solicitation of proxies or\nconsents by or on behalf of a Person other than the Board; or\n\n         (c) Consummation of a reorganization, merger or consolidation or sale\nor other disposition of all or substantially all of the assets of the Company or\nthe acquisition of assets of another corporation (a 'Business Combination'), in\neach case, unless, following such Business Combination, (i) all or substantially\nall of the individuals and entities who were the beneficial owners,\nrespectively, of the Outstanding Company Common Stock and Outstanding Company\nVoting Securities immediately prior to such Business Combination beneficially\nown, directly or indirectly, more than 50% of, respectively, the then\noutstanding shares of common stock and the combined voting power of the then\noutstanding voting securities entitled to vote generally in the election of\ndirectors, as the case may be, of the corporation resulting from such Business\nCombination (including, without limitation, a corporation which as a result of\nsuch transaction owns the Company or all or substantially all of the Company's\nassets either directly or through one or more subsidiaries) in substantially the\nsame proportions as their ownership, immediately prior to such Business\nCombination of the Outstanding Company Common Stock and Outstanding Company\nVoting Securities, as the case may be, (ii) no Person (excluding any corporation\nresulting from such Business Combination or any employee benefit plan (or\nrelated trust) of the Company or such corporation resulting from such Business\nCombination) beneficially owns, directly or indirectly, 20% or more of,\nrespectively, the then outstanding shares of common stock of the corporation\nresulting from such Business Combination or the combined voting power of the\nthen outstanding voting securities of such corporation except to the extent that\nsuch ownership existed prior to the Business Combination and (iii) at least a\nmajority of the\n\n\n                                        2\n\n\n\nmembers of the board of directors of the corporation resulting from such\nBusiness Combination were members of the Incumbent Board at the time of the\nexecution of the initial agreement, or of the action of the Board, providing for\nsuch Business Combination; or\n\n         (d) Approval by the shareholders of the Company of a complete\nliquidation or dissolution of the Company.\n\n         3. EMPLOYMENT PERIOD. The Company hereby agrees to continue the\nExecutive in its employ, and the Executive hereby agrees to remain in the employ\nof the Company subject to the terms and conditions of this Agreement, for the\nperiod commencing on the Effective Date and ending on the third anniversary of\nsuch date (the 'Employment Period').\n\n         4. TERMS OF EMPLOYMENT. (a) Position and Duties. (i) During the\nEmployment Period, (A) the Executive's position (including status, offices,\ntitles and reporting requirements), authority, duties and responsibilities shall\nbe at least commensurate in all material respects with the most significant of\nthose held, exercised and assigned at any time during the 120-day period\nimmediately preceding the Effective Date and (B) the Executive's services shall\nbe performed at the location where the Executive was employed immediately\npreceding the Effective Date or any office or location less than 35 miles from\nsuch location.\n\n         (ii) During the Employment Period, and excluding any periods of\nvacation and sick leave to which the Executive is entitled, the Executive agrees\nto devote reasonable attention and time during normal business hours to the\nbusiness and affairs of the Company and, to the extent necessary to discharge\nthe responsibilities assigned to the Executive hereunder, to use the Executive's\nreasonable best efforts to perform faithfully and efficiently such\nresponsibilities. During the Employment Period it shall not be a violation of\nthis Agreement for the Executive to (A) serve on corporate, civic or charitable\nboards or committees, (B) deliver lectures, fulfill speaking engagements or\nteach at educational institutions and (C) manage personal investments, so long\nas such activities do not significantly interfere with the performance of the\nExecutive's responsibilities as an employee of the Company in accordance with\nthis Agreement. It is expressly understood and agreed that to the extent that\nany such activities have been conducted by the Executive prior to the Effective\nDate, the continued conduct of such activities (or the conduct of activities\nsimilar in nature and scope thereto) subsequent to the Effective Date shall not\nthereafter be deemed to interfere with the performance of the Executive's\nresponsibilities to the Company.\n\n         (b) Compensation. (i) Base Salary. During the Employment Period, the\nExecutive shall receive an annual base salary ('Annual Base Salary'), which\nshall be paid at a monthly rate, at least equal to twelve times the highest\nmonthly base salary paid or payable, including any base salary which has been\nearned but deferred, to the Executive by the Company and its affiliated\ncompanies in respect of the twelve-month period immediately preceding the month\nin which the Effective Date occurs. During the Employment Period, the Annual\nBase Salary shall be reviewed no more than 12 months after the last salary\nincrease awarded to the Executive prior to the Effective Date and thereafter at\nleast annually. Any increase in Annual Base Salary shall not serve to limit or\nreduce any other obligation to the Executive under this Agreement\n\n\n                                        3\n\n\n\nAnnual Base Salary shall not be reduced after any such increase and the term\nAnnual Base Salary as utilized in this Agreement shall refer to Annual Base\nSalary as so increased. As used in this Agreement, the term 'affiliated\ncompanies' shall include any company controlled by, controlling or under common\ncontrol with the Company.\n\n         (ii) Annual Bonus. In addition to Annual Base Salary, the Executive\nshall be awarded, for each fiscal year ending during the Employment Period, an\nannual bonus (the 'Annual Bonus') in cash at least equal to the Executive's\naggregate highest bonus under the Company's Annual Incentive Compensation Plan\nand Intermediate Term Incentive Compensation Plan, or any successor or\nreplacement plans, for the last three full fiscal years prior to the Effective\nDate (annualized in the event that the Executive was not employed by the Company\nfor the whole of such fiscal year) (the 'Recent Annual Bonus'). Each such Annual\nBonus shall be paid no later than the end of the third month of the fiscal year\nnext following the fiscal year for which the Annual Bonus is awarded, unless the\nExecutive shall elect to defer the receipt of such Annual Bonus.\n\n         (iii) Incentive, Savings and Retirement Plans. During the Employment\nPeriod, the Executive shall be entitled to participate in all incentive, savings\nand retirement plans, practices, policies and programs applicable generally to\nother peer executives of the Company and its affiliated companies, but in no\nevent shall such plans, practices, policies and programs provide the Executive\nwith incentive opportunities (measured with respect to both regular and special\nincentive opportunities, to the extent, if any, that such distinction is\napplicable), savings opportunities and retirement benefit opportunities, in each\ncase, less favorable, in the aggregate, than the most favorable of those\nprovided by the Company and its affiliated companies for the Executive under\nsuch plans, practices, policies and programs as in effect at any time during the\n120-day period immediately preceding the Effective Date or if more favorable to\nthe Executive, those provided generally at any time after the Effective Date to\nother peer executives of the Company and its affiliated companies. The Executive\nshall be entitled to receive as a supplemental pension a non-qualified\nretirement benefit, payable within 30 days of the Date of Termination, equal to\nthe lump sum actuarial equivalent value (determined in the same manner as\nactuarial equivalent lump sum payments are determined under Newmont Gold's\nPension Equalization Plan, but utilizing actuarial assumptions no less favorable\nto the Executive than those in effect under such plan as of the Effective Date)\nof the Executive's accrued benefit under Newmont Gold's Pension Plan and Pension\nEqualization Plan (as in effect immediately prior to the Effective Date, or\nunder any increased benefit formula established following the Effective Date,\nunder such plans or any replacement plans) determined as of the Date of\nTermination; provided, however, that such accrued benefit shall be determined\nunder the assumption that the Executive's credited service is equal to 1.5 times\nhis actual years of credited service under such Pension Plan and, provided,\nfurther, that the amount of such accrued benefit shall be reduced by the\nExecutive's vested accrued benefit as determined under Newmont Gold's Pension\nPlan and Pension Equalization Plan (the 'Pension Supplement')\n\n         (iv) Welfare Benefit Plans. During the Employment Period, the Executive\nand\/or the Executive's family, as the case may be, shall be eligible for\nparticipation in and shall receive all benefits under welfare benefit plans,\npractices, policies and programs provided by the\n\n\n                                       4\n\n\n\nCompany and its affiliated companies (including, without limitation, medical,\nprescription, dental, disability, employee life, group life, accidental death\nand travel accident insurance plans and programs) to the extent applicable\ngenerally to other peer executives of the Company and its affiliated companies,\nbut in no event shall such plans, practices, policies and programs provide the\nExecutive with benefits which are less favorable, in the aggregate, than the\nmost favorable of such plans, practices, policies and programs in effect for the\nExecutive at any time during the 120-day period immediately preceding the\nEffective Date or, if more favorable to the Executive, those provided generally\nat any time after the Effective Date to other peer executives of the Company and\nits affiliated companies.\n\n         (v) Expenses. During the Employment Period, the Executive shall be\nentitled to receive prompt reimbursement for all reasonable expenses incurred by\nthe Executive in accordance with the most favorable policies, practices and\nprocedures of the Company and its affiliated companies in effect for the\nExecutive at any time during the 120-day period immediately preceding the\nEffective Date or, if more favorable to the Executive, as in effect generally at\nany time thereafter with respect to other peer executives of the Company and its\naffiliated companies.\n\n         (vi) Fringe Benefits. During the Employment Period, the Executive shall\nbe entitled to fringe benefits, including, without limitation, tax and financial\nplanning services, payment of club dues, and, if applicable, use of an\nautomobile and payment of related expenses, in accordance with the most\nfavorable plans, practices, programs and policies of the Company and its\naffiliated companies in effect for the Executive at any time during the 120-day\nperiod immediately preceding the Effective Date or, if more favorable to the\nExecutive, as in effect generally at any time thereafter with respect to other\npeer executives of the Company and its affiliated companies.\n\n         (vii) Office and Support Staff. During the Employment Period, the\nExecutive shall be entitled to an office or offices of a size and with\nfurnishings and other appointments, and to exclusive personal secretarial and\nother assistance, at least equal to the most favorable of the foregoing provided\nto the Executive by the Company and its affiliated companies at any time during\nthe 120-day period immediately preceding the Effective Date or, if more\nfavorable to the Executive, as provided generally at any time thereafter with\nrespect to other peer executives of the Company and its affiliated companies.\n\n         (viii) Vacation. During the Employment Period, the Executive shall be\nentitled to paid vacation in accordance with the most favorable plans, policies,\nprograms and practices of the Company and its affiliated companies as in effect\nfor the Executive at any time during the 120-day period immediately preceding\nthe Effective Date or, if more favorable to the Executive, as in effect\ngenerally at any time thereafter with respect to other peer executives of the\nCompany and its affiliated companies.\n\n         5. TERMINATION OF EMPLOYMENT. (a) Death or Disability. The Executive's\nemployment shall terminate automatically upon the Executive's death during the\nEmployment Period. If the Company determines in good faith that the Disability\nof the Executive has occurred during the Employment Period (pursuant to the\ndefinition of Disability set forth below), it\n\n\n                                       5\n\n\n\nmay give to the Executive written notice in accordance with Section 12(b) of\nthis Agreement of its intention to terminate the Executive's employment. In such\nevent, the Executive's employment with the Company shall terminate effective on\nthe 30th day after receipt of such notice by the Executive (the 'Disability\nEffective Date'), provided that, within the 30 days after such receipt, the\nExecutive shall not have returned to full-time performance of the Executive's\nduties. For purposes of this Agreement, 'Disability' shall mean the absence of\nthe Executive from the Executive's duties with the Company on a full-time basis\nfor 180 consecutive business days as a result of incapacity due to mental or\nphysical illness which is determined to be total and permanent by a physician\nselected by the Company or its insurers and acceptable to the Executive or the\nExecutive's legal representative.\n\n         (b) Cause. The Company may terminate the Executive's employment during\nthe Employment Period for Cause. For purposes of this Agreement, 'Cause' shall\nmean:\n\n         (i) the willful and continued failure of the Executive to perform\nsubstantially the Executive's duties with the Company or one of its affiliates\n(other than any such failure resulting from incapacity due to physical or mental\nillness), after a written demand for substantial performance is delivered to the\nExecutive by the Board or the Chief Executive Officer of the Company which\nspecifically identifies the manner in which the Board or Chief Executive Officer\nbelieves that the Executive has not substantially performed the Executive's\nduties, or\n\n         (ii) the willful engaging by the Executive in illegal conduct or gross\nmisconduct which is materially and demonstrably injurious to the Company.\n\n         For purposes of this provision, no act or failure to act, on the part\nof the Executive, shall be considered 'willful' unless it is done, or omitted to\nbe done, by the Executive in bad faith or without reasonable belief that the\nExecutive's action or omission was in the best interests of the Company. Any\nact, or failure to act, based upon authority given pursuant to a resolution duly\nadopted by the Board or upon the instructions of the Chief Executive Officer or\na senior officer of the Company or based upon the advice of counsel for the\nCompany shall be conclusively presumed to be done, or omitted to be done, by the\nExecutive in good faith and in the best interests of the Company. The cessation\nof employment of the Executive shall not be deemed to be for Cause unless and\nuntil there shall have been delivered to the Executive a copy of a resolution\nduly adopted by the affirmative vote of not less than three-quarters of the\nentire membership of the Board at a meeting of the Board called and held for\nsuch purpose (after reasonable notice is provided to the Executive and the\nExecutive is given an opportunity, together with counsel, to be heard before the\nBoard), finding that, in the good faith opinion of the Board, the Executive is\nguilty of the conduct described in subparagraph (i) or (ii) above, and\nspecifying the particulars thereof in detail.\n\n         (c) Good Reason. The Executive's employment may be terminated by the\nExecutive for Good Reason. For purposes of this Agreement, 'Good Reason' shall\nmean:\n\n         (i) the assignment to the Executive of any duties inconsistent in any\nrespect with the Executive's position (including status, offices, titles and\nreporting requirements),\n\n\n                                       6\n\n\n\nauthority, duties or responsibilities as contemplated by Section 4(a) of this\nAgreement, or any other action by the Company which results in a diminution in\nsuch position, authority, duties or responsibilities, excluding for this purpose\nan isolated, insubstantial and inadvertent action not taken in bad faith and\nwhich is remedied by the Company promptly after receipt of notice thereof given\nby the Executive;\n\n         (ii) any failure by the Company to comply with any of the provisions of\nSection 4(b) of this Agreement, other than an isolated, insubstantial and\ninadvertent failure not occurring in bad faith and which is remedied by the\nCompany promptly after receipt of notice thereof given by the Executive;\n\n         (iii) the Company's requiring the Executive to be based at any office\nor location other than as provided in Section 4(a)(i)(B) hereof or the Company's\nrequiring the Executive to travel on Company business to a substantially greater\nextent than required immediately prior to the Effective Date;\n\n         (iv) any purported termination by the Company of the Executive's\nemployment otherwise than as expressly permitted by this Agreement; or\n\n         (v) any failure by the Company to comply with and satisfy Section 11(c)\nof this Agreement.\n\n         For purposes of this Section 5(c), any good faith determination of\n'Good Reason' made by the Executive shall be conclusive. Anything in this\nAgreement to the contrary notwithstanding, a termination by the Executive for\nany reason during the 30-day period immediately following the first anniversary\nof the Effective Date shall be deemed to be a termination for Good Reason for\nall purposes of this Agreement.\n\n         (d) Notice of Termination. Any termination by the Company for Cause, or\nby the Executive for Good Reason, shall be communicated by Notice of Termination\nto the other party hereto given in accordance with Section 12(b) of this\nAgreement. For purposes of this Agreement, a 'Notice of Termination' means a\nwritten notice which (i) indicates the specific termination provision in this\nAgreement relied upon, (ii) to the extent applicable, sets forth in reasonable\ndetail the facts and circumstances claimed to provide a basis for termination of\nthe Executive's employment under the provision so indicated and (iii) if the\nDate of Termination (as defined below) is other than the date of receipt of such\nnotice, specifies the termination date (which date shall be not more than 30\ndays after the giving of such notice). The failure by the Executive or the\nCompany to set forth in the Notice of Termination any fact or circumstance which\ncontributes to a showing of Good Reason or Cause shall not waive any right of\nthe Executive or the Company, respectively, hereunder or preclude the Executive\nor the Company, respectively, from asserting such fact or circumstance in\nenforcing the Executive's or the Company's rights hereunder.\n\n         (e) Date of Termination. 'Date of Termination' means (i) if the\nExecutive's employment is terminated by the Company for Cause, or by the\nExecutive for Good Reason, the\n\n\n                                       7\n\n\n\ndate of receipt of the Notice of Termination or any later date specified\ntherein, as the case may be, (ii) if the Executive's employment is terminated by\nthe Company other than for Cause or Disability, the Date of Termination shall be\nthe date on which the Company notifies the Executive of such termination and\n(iii) if the Executive's employment is terminated by reason of death or\nDisability, the Date of Termination shall be the date of death of the Executive\nor the Disability Effective Date, as the case may be.\n\n         6. OBLIGATIONS OF THE COMPANY UPON TERMINATION. (a) Good Reason; Other\nThan for Cause, Death or Disability. If, during the Employment Period, the\nCompany shall terminate the Executive's employment other than for Cause or\nDisability or the Executive shall terminate employment for Good Reason:\n\n         (i) the Company shall pay to the Executive in a lump sum in cash within\n30 days after the Date of Termination the aggregate of the following amounts:\n\n                    A. the sum of (1) the Executive's Annual Base Salary through\n             the Date of Termination to the extent not theretofore paid, (2) the\n             product of (x) the higher of (I) the Recent Annual Bonus and (II)\n             the Annual Bonus paid or payable, including any bonus or portion\n             thereof which has been earned but deferred (and annualized for any\n             fiscal year consisting of less than twelve full months or during\n             which the Executive was employed for less than twelve full months),\n             for the most recently completed fiscal year during the Employment\n             Period, if any (such higher amount being referred to as the\n             'Highest Annual Bonus') and (y) a fraction, the numerator of which\n             is the number of days in the current fiscal year through the Date\n             of Termination, and the denominator of which is 365 and (3) any\n             compensation previously deferred by the Executive (together with\n             any accrued interest or earnings thereon) and any accrued vacation\n             pay, in each case to the extent not theretofore paid (the sum of\n             the amounts described in clauses (1), (2), and (3) shall be\n             hereinafter referred to as the 'Accrued Obligations');\n\n                    B. the amount equal to the product of (1) three and (2) the\n             sum of (x) the Executive's Annual Base Salary and (y) the Highest\n             Annual Bonus; and\n\n                    C. an amount (calculated consistent with the example set\n             forth on Exhibit A to this Agreement) equal to the excess (without\n             present value discount, as a result of receiving such amount prior\n             to the end of the 3-year period following the Date of Termination)\n             of (a) the actuarial equivalent of the benefit under the qualified\n             defined benefit retirement plan of the Company or any Affiliate in\n             which the Executive participates immediately prior to the Effective\n             Date, or under any such plan with more favorable benefits in which\n             the Executive participates following the Effective Date (the\n             'Retirement Plan'), and any excess or supplemental retirement plan,\n             program\n\n\n                                       8\n\n\n\n             or arrangement of the Company or any Affiliate in which the\n             Executive participates immediately prior to the Effective Date\n             (including the Pension Supplement) or under any such plans,\n             programs or arrangements with more favorable benefits in which the\n             Executive participates following the Effective Date (together, the\n             'SERP') which the Executive would receive if the Executive's\n             employment continued for three years after the Date of Termination,\n             assuming for this purpose that (i) the Executive is fully vested in\n             all benefits to be calculated under this clause (a), (ii) the\n             Executive is treated as having attained three additional years of\n             age under the Retirement Plan or the SERP, including for purposes\n             of reducing any otherwise applicable actuarial reduction, but not\n             for purposes of reducing the number of years of the Executive's\n             life expectancy, and (iii) the Executive's compensation in each of\n             the three years, for purposes of calculating the benefits under\n             this clause (a), pursuant to the benefit formulas for the\n             Retirement Plan and SERP is that required by Section 4(b)(i) and\n             Section 4(b)(ii), over (b) the actuarial equivalent of the\n             Executive's actual benefit (paid or payable), if any, under the\n             Retirement Plan and the SERP as of the Date of Termination\n             (including the Pension Supplement). The actuarial assumptions used\n             for determining actuarial equivalence in this Section 6(a)(i)(C)\n             shall be no less favorable to the Executive than the most favorable\n             in effect under the Retirement Plan and SERP, as the case may be,\n             immediately prior to the Effective Date or on the Date of\n             Termination.\n\n         (ii) for three years after the Executive's Date of Termination, or such\nlonger period as may be provided by the terms of the appropriate plan, program,\npractice or policy, the Company shall continue benefits to the Executive and\/or\nthe Executive's family at least equal to those which would have been provided to\nthem in accordance with the plans, programs, practices and policies described in\nSection 4(b)(iv) of this Agreement if the Executive's employment had not been\nterminated or, if more favorable to the Executive, as in effect generally at any\ntime thereafter with respect to other peer executives of the Company and its\naffiliated companies and their families, provided, however, that if the\nExecutive becomes reemployed with another employer and is eligible to receive\nmedical or other welfare benefits under another employer provided plan, the\nmedical and other welfare benefits described herein shall be secondary to those\nprovided under such other plan during such applicable period of eligibility. For\npurposes of determining eligibility (but not the time of commencement of\nbenefits) of the Executive for retiree benefits pursuant to such plans,\npractices, programs and policies, the Executive shall be considered to have\nremained employed until three years after the Date of Termination and to have\nretired on the last day of such period;\n\n         (iii) the Company shall, at its sole expense as incurred, provide the\nExecutive with outplacement services the scope and provider of which shall be\nconsistent with the Company's practices during the one-year period immediately\npreceding the Effective Date; and\n\n         (iv) to the extent not theretofore paid or provided, the Company shall\ntimely pay or provide (or cause to be paid or provided) to the Executive any\nother amounts or benefits\n\n\n                                       9\n\n\n\nrequired to be paid or provided or which the Executive is eligible to receive\nunder any plan, program, policy or practice or contract or agreement of the\nCompany and its affiliated companies (such other amounts and benefits shall be\nhereinafter referred to as the 'Other Benefits').\n\n         (b) Death. If the Executive's employment is terminated by reason of the\nExecutive's death during the Employment Period, this Agreement shall terminate\nwithout further obligations to the Executive's legal representatives under this\nAgreement, other than for payment of Accrued Obligations, the Pension Supplement\n(payable to the Executive's surviving spouse; provided, however, that such\namount shall be adjusted in the same manner as surviving spouse benefits are\ndetermined under Newmont Gold's Pension Plan and Pension Equalization Plan) and\nthe timely payment or provision of Other Benefits. Accrued Obligations and the\nPension Supplement shall be paid to the Executive's estate or beneficiary (or\nsurviving spouse), as applicable, in a lump sum in cash within 30 days of the\nDate of Termination. With respect to the provision of Other Benefits, the term\nOther Benefits as utilized in this Section 6(b) shall include, without\nlimitation, and the Executive's estate and\/or beneficiaries shall be entitled to\nreceive, benefits at least equal to the most favorable benefits provided by the\nCompany and affiliated companies to the estates and beneficiaries of peer\nexecutives of the Company and such affiliated companies under such plans,\nprograms, practices and policies relating to death benefits, if any, as in\neffect with respect to other peer executives and their beneficiaries at any time\nduring the 120-day period immediately preceding the Effective Date or, if more\nfavorable to the Executive's estate and\/or the Executive's beneficiaries, as in\neffect on the date of the Executive's death with respect to other peer\nexecutives of the Company and its affiliated companies and their beneficiaries.\n\n         (c) Disability. If the Executive's employment is terminated by reason\nof the Executive's Disability during the Employment Period, this Agreement shall\nterminate without further obligations to the Executive, other than for payment\nof Accrued Obligations, the Pension Supplement and the timely payment or\nprovision of Other Benefits. Accrued Obligations and the Pension Supplement\nshall be paid to the Executive in a lump sum in cash within 30 days of the Date\nof Termination. With respect to the provision of Other Benefits, the term Other\nBenefits as utilized in this Section 6(c) shall include, and the Executive shall\nbe entitled after the Disability Effective Date to receive, disability and other\nbenefits at least equal to the most favorable of those generally provided by the\nCompany and its affiliated companies to disabled executives and\/or their\nfamilies in accordance with such plans, programs, practices and policies\nrelating to disability, if any, as in effect generally with respect to other\npeer executives and their families at any time during the 120-day period\nimmediately preceding the Effective Date or, if more favorable to the Executive\nand\/or the Executive's family, as in effect at any time thereafter generally\nwith respect to other peer executives of the Company and its affiliated\ncompanies and their families.\n\n         (d) Cause; Other than for Good Reason. If the Executive's employment\nshall be terminated for Cause during the Employment Period, this Agreement shall\nterminate without further obligations to the Executive other than the obligation\nto pay to the Executive (x) his Annual Base Salary through the Date of\nTermination, (y) the amount of any compensation previously deferred by the\nExecutive, and (z) Other Benefits, in each case to the extent theretofore\nunpaid, and the Executive shall not be entitled to receive the Pension\nSupplement. If the Executive\n\n\n                                       10\n\n\n\nvoluntarily terminates employment during the Employment Period, excluding a\ntermination for Good Reason, this Agreement shall terminate without further\nobligations to the Executive, other than for Accrued Obligations, the Pension\nSupplement and the timely payment or provision of Other Benefits. In such case,\nall Accrued Obligations and the Pension Supplement shall be paid to the\nExecutive in a lump sum in cash within 30 days of the Date of Termination.\n\n         7. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent\nor limit the Executive's continuing or future participation in any plan,\nprogram, policy or practice provided by the Company or any of its affiliated\ncompanies and for which the Executive may qualify, nor, subject to Section\n12(f), shall anything herein limit or otherwise affect such rights as the\nExecutive may have under any contract or agreement with the Company or any of\nits affiliated companies. Amounts which are vested benefits or which the\nExecutive is otherwise entitled to receive under any plan, policy, practice or\nprogram of or any contract or agreement with the Company or any of its\naffiliated companies at or subsequent to the Date of Termination shall be\npayable in accordance with such plan, policy, practice or program or contract or\nagreement except as explicitly modified by this Agreement.\n\n         8. FULL SETTLEMENT. The Company's obligation to make the payments\nprovided for in this Agreement and otherwise to perform its obligations\nhereunder shall not be affected by any set-off, counterclaim, recoupment,\ndefense or other claim, right or action which the Company may have against the\nExecutive or others. In no event shall the Executive be obligated to seek other\nemployment or take any other action by way of mitigation of the amounts payable\nto the Executive under any of the provisions of this Agreement and such amounts\nshall not be reduced whether or not the Executive obtains other employment. The\nCompany agrees to pay as incurred, to the full extent permitted by law, all\nlegal fees and expenses which the Executive may reasonably incur as a result of\nany contest (regardless of the outcome thereof) by the Company, the Executive or\nothers of the validity or enforceability of, or liability under, any provision\nof this Agreement or any guarantee of performance thereof (including as a result\nof any contest by the Executive about the amount of any payment pursuant to this\nAgreement), plus in each case interest on any delayed payment at the applicable\nFederal rate provided for in Section 7872(f)(2)(A) of the Internal Revenue Code\nof 1986, as amended (the 'Code').\n\n         9. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.\n\n         (a) Anything in this Agreement to the contrary notwithstanding and\nexcept as set forth below, in the event it shall be determined that any payment\nor distribution by the Company or its affiliates to or for the benefit of the\nExecutive (whether paid or payable or distributed or distributable pursuant to\nthe terms of this Agreement or otherwise, but determined without regard to any\nadditional payments required under this Section 9) (a 'Payment') would be\nsubject to the excise tax imposed by Section 4999 of the Code or any interest or\npenalties are incurred by the Executive with respect to such excise tax (such\nexcise tax, together with any such interest and penalties, are hereinafter\ncollectively referred to as the 'Excise Tax'), then the Executive shall be\nentitled to receive an additional payment (a 'Gross-Up Payment') in an amount\nsuch that after payment by the Executive of all taxes (including any interest or\npenalties imposed with respect to such taxes), including, without limitation,\nany income taxes (and any interest and penalties \n\n\n                                       11\n\n\n\nimposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,\nthe Executive retains an amount of the Gross-Up Payment equal to the Excise Tax\nimposed upon the Payments. Notwithstanding the foregoing provisions of this\nSection 9(a), if it shall be determined that the Executive is entitled to a\nGross-Up Payment, but that the Payments do not exceed 110% of the greatest\namount (the 'Safe Harbor Amount') that could be paid to the Executive such that\nthe receipt of Payments would not give rise to any Excise Tax, then no Gross-Up\nPayment shall be made to the Executive and the amounts payable under this\nAgreement shall be reduced so that the Payments, in the aggregate, are reduced\nto the Safe Harbor Amount. The reduction of the amounts payable hereunder, if\napplicable, shall be made by first reducing the payments under Section\n6(a)(i)(B), unless an alternative method of reduction is elected by the\nExecutive. For purposes of reducing the Payments to the Safe Harbor Amount, only\namounts payable under this Agreement (and no other Payments) shall be reduced.\nIf the reduction of the amount payable under this Agreement would not result in\na reduction of the Payments to the Safe Harbor Amount, no amounts payable under\nthis Agreement shall be reduced pursuant to this Section 9(a).\n\n         (b) Subject to the provisions of Section 9(c), all determinations\nrequired to be made under this Section 9, including whether and when a Gross-Up\nPayment is required and the amount of such Gross-Up Payment and the assumptions\nto be utilized in arriving at such determination, shall be made by a nationally\nrecognized certified public accounting firm designated by the Executive (the\n'Accounting Firm') which shall provide detailed supporting calculations both to\nthe Company and the Executive within 15 business days of the receipt of notice\nfrom the Executive that there has been a Payment, or such earlier time as is\nrequested by the Company. In the event that the Accounting Firm is serving as\naccountant or auditor for the individual, entity or group effecting the Change\nof Control, the Executive shall appoint another nationally recognized accounting\nfirm to make the determinations required hereunder (which accounting firm shall\nthen be referred to as the Accounting Firm hereunder). All fees and expenses of\nthe Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment,\nas determined pursuant to this Section 9, shall be paid by the Company to the\nExecutive within five days of the receipt of the Accounting Firm's\ndetermination. Any determination by the Accounting Firm shall be binding upon\nthe Company and the Executive. As a result of the uncertainty in the application\nof Section 4999 of the Code at the time of the initial determination by the\nAccounting Firm hereunder, it is possible that Gross-Up Payments which will not\nhave been made by the Company should have been made ('Underpayment'), consistent\nwith the calculations required to be made hereunder. In the event that the\nCompany exhausts its remedies pursuant to Section 9(c) and the Executive\nthereafter is required to make a payment of any Excise Tax, the Accounting Firm\nshall determine the amount of the Underpayment that has occurred and any such\nUnderpayment shall be promptly paid by the Company to or for the benefit of the\nExecutive.\n\n         (c) The Executive shall notify the Company in writing of any claim by\nthe Internal Revenue Service that, if successful, would require the payment by\nthe Company of the Gross-Up Payment. Such notification shall be given as soon as\npracticable but no later than ten business days after the Executive is informed\nin writing of such claim and shall apprise the Company of the nature of such\nclaim and the date on which such claim is requested to be paid. The Executive\nshall not pay such claim prior to the expiration of the 30-day period following\nthe date\n\n\n                                       12\n\n\n\non which it gives such notice to the Company (or such shorter period ending on\nthe date that any payment of taxes with respect to such claim is due). If the\nCompany notifies the Executive in writing prior to the expiration of such period\nthat it desires to contest such claim, the Executive shall:\n\n         (i) give the Company any information reasonably requested by the\nCompany relating to such claim,\n\n         (ii) take such action in connection with contesting such claim as the\nCompany shall reasonably request in writing from time to time, including,\nwithout limitation, accepting legal representation with respect to such claim by\nan attorney reasonably selected by the Company,\n\n         (iii) cooperate with the Company in good faith in order effectively to\ncontest such claim, and\n\n         (iv) permit the Company to participate in any proceedings relating to\nsuch claim;\n\nprovided, however, that the Company shall bear and pay directly all costs and\nexpenses (including additional interest and penalties) incurred in connection\nwith such contest and shall indemnify and hold the Executive harmless, on an\nafter-tax basis, for any Excise Tax or income tax (including interest and\npenalties with respect thereto) imposed as a result of such representation and\npayment of costs and expenses. Without limitation on the foregoing provisions of\nthis Section 9(c), the Company shall control all proceedings taken in connection\nwith such contest and, at its sole option, may pursue or forgo any and all\nadministrative appeals, proceedings, hearings and conferences with the taxing\nauthority in respect of such claim and may, at its sole option, either direct\nthe Executive to pay the tax claimed and sue for a refund or contest the claim\nin any permissible manner, and the Executive agrees to prosecute such contest to\na determination before any administrative tribunal, in a court of initial\njurisdiction and in one or more appellate courts, as the Company shall\ndetermine; provided, however, that if the Company directs the Executive to pay\nsuch claim and sue for a refund, the Company shall advance the amount of such\npayment to the Executive, on an interest-free basis and shall indemnify and hold\nthe Executive harmless, on an after-tax basis, from any Excise Tax or income tax\n(including interest or penalties with respect thereto) imposed with respect to\nsuch advance or with respect to any imputed income with respect to such advance;\nand further provided that any extension of the statute of limitations relating\nto payment of taxes for the taxable year of the Executive with respect to which\nsuch contested amount is claimed to be due is limited solely to such contested\namount. Furthermore, the Company's control of the contest shall be limited to\nissues with respect to which a Gross-Up Payment would be payable hereunder and\nthe Executive shall be entitled to settle or contest, as the case may be, any\nother issue raised by the Internal Revenue Service or any other taxing\nauthority.\n\n         (d) If, after the receipt by the Executive of an amount advanced by the\nCompany pursuant to Section 9(c), the Executive becomes entitled to receive any\nrefund with respect\n\n\n                                       13\n\n\n\nto such claim, the Executive shall (subject to the Company's complying with the\nrequirements of Section 9(c)) promptly pay to the Company the amount of such\nrefund (together with any interest paid or credited thereon after taxes\napplicable thereto). If, after the receipt by the Executive of an amount\nadvanced by the Company pursuant to Section 9(c), a determination is made that\nthe Executive shall not be entitled to any refund with respect to such claim and\nthe Company does not notify the Executive in writing of its intent to contest\nsuch denial of refund prior to the expiration of 30 days after such\ndetermination, then such advance shall be forgiven and shall not be required to\nbe repaid and the amount of such advance shall offset, to the extent thereof,\nthe amount of Gross-Up Payment required to be paid.\n\n         10. CONFIDENTIAL INFORMATION. The Executive shall hold in a fiduciary\ncapacity for the benefit of the Company all secret or confidential information,\nknowledge or data relating to the Company or any of its affiliated companies,\nand their respective businesses, which shall have been obtained by the Executive\nduring the Executive's employment by the Company or any of its affiliated\ncompanies and which shall not be or become public knowledge (other than by acts\nby the Executive or representatives of the Executive in violation of this\nAgreement). After termination of the Executive's employment with the Company,\nthe Executive shall not, without the prior written consent of the Company or as\nmay otherwise be required by law or legal process, communicate or divulge any\nsuch information, knowledge or data to anyone other than the Company and those\ndesignated by it. In no event shall an asserted violation of the provisions of\nthis Section 10 constitute a basis for deferring or withholding any amounts\notherwise payable to the Executive under this Agreement.\n\n         11. SUCCESSORS. (a) This Agreement is personal to the Executive and\nwithout the prior written consent of the Company shall not be assignable by the\nExecutive otherwise than by will or the laws of descent and distribution. This\nAgreement shall inure to the benefit of and be enforceable by the Executive's\nlegal representatives.\n\n         (b) This Agreement shall inure to the benefit of and be binding upon\nthe Company and its successors and assigns.\n\n         (c) The Company will require any successor (whether direct or indirect,\nby purchase, merger, consolidation or otherwise) to all or substantially all of\nthe business and\/or assets of the Company to assume expressly and agree to\nperform this Agreement in the same manner and to the same extent that the\nCompany would be required to perform it if no such succession had taken place.\nAs used in this Agreement, 'Company' shall mean the Company as hereinbefore\ndefined and any successor to its business and\/or assets as aforesaid which\nassumes and agrees to perform this Agreement by operation of law, or otherwise.\n\n         12. MISCELLANEOUS. (a) This Agreement shall be governed by and\nconstrued in accordance with the laws of the State of Colorado, without\nreference to principles of conflict of laws. The captions of this Agreement are\nnot part of the provisions hereof and shall have no force or effect. This\nAgreement may not be amended or modified otherwise than by a written agreement\nexecuted by the parties hereto or their respective successors and legal\nrepresentatives.\n\n\n                                       14\n\n\n\n                  All notices and other communications hereunder shall be in\nwriting and shall be given by hand delivery to the other party or by registered\nor certified mail, return receipt requested, postage prepaid, addressed as\nfollows:\n\n                  If to the Executive:\n\n                  At the last address on the Company's records\n\n\n                  If to the Company:\n\n                  Newmont Mining Corporation\n                  1700 Lincoln Street\n                  Denver, CO  80203\n                  Attention:  Secretary\n\nor to such other address as either party shall have furnished to the other in\nwriting in accordance herewith. Notice and communications shall be effective\nwhen actually received by the addressee.\n\n         (c) The invalidity or unenforceability of any provision of this\nAgreement shall not affect the validity or enforceability of any other provision\nof this Agreement.\n\n         (d) The Company may withhold from any amounts payable under this\nAgreement such Federal, state, local or foreign taxes as shall be required to be\nwithheld pursuant to any applicable law or regulation.\n\n         (e) The Executive's or the Company's failure to insist upon strict\ncompliance with any provision of this Agreement or the failure to assert any\nright the Executive or the Company may have hereunder, including, without\nlimitation, the right of the Executive to terminate employment for Good Reason\npursuant to Section 5(c)(i)-(v) of this Agreement, shall not be deemed to be a\nwaiver of such provision or right or any other provision or right of this\nAgreement.\n\n         (f) The Executive and the Company acknowledge that, except as may\notherwise be provided under any other written agreement between the Executive\nand the Company, the employment of the Executive by the Company is 'at will'\nand, subject to Section 1(a) hereof, prior to the Effective Date, the\nExecutive's employment may be terminated by either the Executive or the Company\nat any time prior to the Effective Date, in which case the Executive shall have\nno further rights under this Agreement. From and after the Effective Date, this\nAgreement shall supersede any other agreement between the parties with respect\nto the subject matter hereof. The Executive shall have no rights to severance\nbenefits under any severance plan or policy of the Company in connection with\nany termination of employment during the Employment Period.\n\n         (g) For purposes of this Agreement, employment of the Executive with\nNewmont Gold shall be treated as employment with the Company.\n\n\n                                       15\n\n\n\n         (h) Newmont Gold shall be jointly and severally liable with the Company\nfor any liabilities to the Executive under this Agreement.\n\n         (i) IN WITNESS WHEREOF, the Executive has hereunto set the Executive's\nhand and, pursuant to the authorization from its Board of Directors, the Company\nand Newmont Gold have caused these presents to be executed in its name on its\nbehalf, all as of the day and year first above written.\n\n\n                                   \/s\/ LAWRENCE T. KURLANDER\n                                  ------------------------------------\n                                  Lawrence T. Kurlander\n\n\n                                  NEWMONT MINING CORPORATION\n\n\n                                  By: \/s\/ TIMOTHY J. SCHMITT\n                                     ---------------------------------\n                                     Timothy J. Schmitt\n                                     Vice President and Secretary\n\n\n                                  NEWMONT GOLD COMPANY\n\n\n                                  By: \/s\/ TIMOTHY J. SCHMITT\n                                     ---------------------------------\n                                     Timothy J. Schmitt\n                                     Vice President and Secretary\n\n\n\n                                       16\n\n\n                                                                       EXHIBIT A\n\n                           NEWMONT MINING CORPORATION\n                              LAWRENCE T. KURLANDER\n                              EMPLOYMENT AGREEMENT\n\n\n\n                                            'Enhanced'              'Actual'\n                                              Pension                Pension\n                                              Benefit                Benefit        \n                                            ----------             ----------\n                                                             \n1.       Final average earnings\n         (pensionable earnings)             $  800,000             $  800,000(1)\n\n2.       Times 1.75%                        x    .0175             x    .0175\n                                            ----------             ----------\n                                                14,000                 14,000\n\n3.       Social Security offset(2)                 -0-                    -0-\n                                            ----------             ----------\n\n4.       Net benefit unit                       14,000                 14,000\n\n5.       Times years of\n         credited service                   x     13.5            x      10.5(3)(4)\n                                            ----------            -----------       \n                                               189,000                147,000\n\n6.       Early commencement\n         of pension adjustment(5)\n                  Age                               65                     62\n                  Factor                    x      100%            x      100%\n                                            ----------             ----------\n\n\n7.       Early commencement\n         benefit                               189,000                147,000\n\n8.       Times life expectancy              x   19.784 yrs.        x   19.784 yrs.\n                                            ----------             ----------\n\n9.       Lump sum benefit                   $3,739,176             $2,908,248\n                                            ==========             ==========\n\n10.      Benefit payable pursuant\n         to Section 6(a)(i)(C):             $3,739,176\n                                            (2,908,248)\n                                            ---------- \n                                            $  830,928\n                                            ==========\n\n\n-------------------------\n(1)      Assumes a separation benefit pursuant to Section 6(a)(i)(B) of\n         $1,500,000. Such amount is includible pursuant to Section 1.25(b)(i) of\n         Newmont Gold Company's Pension Plan. Divide by '5' for impact on final\n         average earnings.\n\n(2)      Ignored for purposes of this example.\n\n(3)      Excludes three additional years of deemed service pursuant to Section\n         1.26(d) of Newmont Gold Company's Pension Plan.\n\n(4)      Includes 3.5 additional years of deemed service pursuant to Section\n         4(b)(iii) and to Paragraph 2 of the Agreement, dated September 8, 1998,\n         between Newmont Gold Company and Lawrence T. Kurlander.\n\n(5)      For purposes of this example only, Section 3.7 of Newmont Gold \n         Company's Pension Plan is ignored.\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-39414","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\/39414","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=39414"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39414"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39414"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39414"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}