{"id":39793,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/executive-change-of-control-severance-plan-newmont-mining-corp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"executive-change-of-control-severance-plan-newmont-mining-corp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/executive-change-of-control-severance-plan-newmont-mining-corp.html","title":{"rendered":"Executive Change Of Control Severance Plan &#8211; Newmont Mining Corp."},"content":{"rendered":"<pre>                           NEWMONT MINING CORPORATION\n\n                   EXECUTIVE CHANGE OF CONTROL SEVERANCE PLAN\n\n\n                                  INTRODUCTION\n\n                  The Board of Directors of Newmont Mining Corporation\nrecognizes that, as is the case with many publicly held corporations, there\nexists the possibility of a Change of Control of the Company. This possibility\nand the uncertainty it creates may result in the loss or distraction of\nexecutives of the Company and its Subsidiaries to the detriment of the Company\nand its shareholders.\n\n                  The Board considers the avoidance of such loss and distraction\nto be essential to protecting and enhancing the best interests of the Company\nand its shareholders. The Board also believes that when a Change of Control is\nperceived as imminent, or is occurring, the Board should be able to receive and\nrely on disinterested service from executives regarding the best interests of\nthe Company and its shareholders without concern that executives might be\ndistracted or concerned by the personal uncertainties and risks created by the\nperception of an imminent or occurring Change of Control.\n\n                  In addition, the Board believes that it is consistent with the\nCompany's employment practices and policies of the Company and its Subsidiaries\nand in the best interests of the Company and its shareholders to treat fairly\nits executives whose employment terminates in connection with or following a\nChange of Control.\n\n                  Accordingly, the Board has determined that appropriate steps\nshould be taken to assure the Company and its Subsidiaries of the continued\nemployment and attention and dedication to duty of its executives and to seek to\nensure the availability of their continued service, notwithstanding the\npossibility, threat or occurrence of a Change of Control.\n\n                  Therefore, in order to fulfill the above purposes, the\nfollowing plan has been developed and is hereby adopted.\n\n                                    ARTICLE I\n                              ESTABLISHMENT OF PLAN\n\n                  As of the Effective Date, the Company hereby establishes a\nseparation compensation plan known as the Newmont Mining Corporation Executive\nChange of Control Severance Plan, as set forth in this document.\n\n                                   ARTICLE II\n                                   DEFINITIONS\n\n                  As used herein the following words and phrases shall have the\nfollowing respective meanings unless the context clearly indicates otherwise.\n\n\n\n\n\n                  (a) Affiliate. Any entity which controls, is controlled by or\nis under common control with the Company.\n\n                  (b) Annual Bonus. The aggregate annual bonus that a\nParticipant is eligible to earn pursuant to the Annual Incentive Compensation\nPlan and Intermediate Term Incentive Compensation Plan of the Company or any\nAffiliate, or any successor or replacement plans.\n\n                  (c) Annual Bonus Amount. The highest amount a Participant\nreceived as an annual bonus in any of the last three full fiscal years prior to\nthe Change of Control.\n\n                  (d) Annual Salary. The Participant's regular annual base\nsalary immediately prior to his or her termination of employment, including\ncompensation converted to other benefits under a flexible pay arrangement\nmaintained by the Company or any Affiliate or deferred pursuant to a written\nplan or agreement with the Company or any Affiliate, but excluding overtime pay,\nallowances, premium pay, compensation paid or payable under any bonus or\nincentive plan of the Company or any Affiliate or any similar payment.\n\n                  (e) Board. The Board of Directors of Newmont Mining\nCorporation.\n\n                  (f) Cause. With respect to any Participant: (i) the willful\nand continued failure of the Participant to perform substantially the\nParticipant's duties with the Company or one of its Affiliates (other than any\nsuch failure resulting from incapacity due to physical or mental illness), after\na written demand for substantial performance is delivered to the Participant by\nthe Board or the Chief Executive Officer of the Company which specifically\nidentifies the manner in which the Board or Chief Executive Officer believes\nthat the Participant has not substantially performed the Participant's duties,\nor (ii) the willful engaging by the Participant in illegal conduct or gross\nmisconduct which is materially and demonstrably injurious to the Company or any\nAffiliate. For purposes of this definition, no act or failure to act on the part\nof the Participant shall be considered 'willful' unless it is done, or omitted\nto be done, by the Participant in bad faith or without reasonable belief that\nthe Participant's action or omission was in the best interests of the Company or\nany Affiliate. Any act or failure to act based upon authority given pursuant to\na resolution duly adopted by the Board or upon the instructions of the Chief\nExecutive Officer or a senior officer of the Company or any Affiliate or based\nupon the advice of counsel for the Company shall be conclusively presumed to be\ndone, or omitted to be done, by the Participant in good faith and in the best\ninterests of the Company.\n\n                  (g) Change of Control The occurrence of any of the following\nevents:\n\n                      (i) The acquisition by any individual, entity or group \n(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange\nAct of 1934, as amended (the 'Exchange Act')) (a 'Person') of beneficial\nownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act)\nof 20% or more of either (x) the then outstanding shares of common stock of the\nCompany (the 'Outstanding Company Common Stock') or (y) the \n\n\n\n\n                                      -2-\n\n\ncombined voting power of the then outstanding voting securities of the Company\nentitled to vote generally in the election of directors (the 'Outstanding\nCompany Voting Securities'); provided, however, that for purposes of this\nsubsection (i), the following acquisitions shall not constitute a Change of\nControl: (A) any acquisition directly from the Company, (B) any acquisition by\nthe Company, (C) any acquisition by any employee benefit plan (or related trust)\nsponsored or maintained by the Company or any corporation controlled by the\nCompany or (D) any acquisition by any corporation pursuant to a transaction\nwhich complies with clauses (A), (B) and (C) of paragraph (iii) below; or\n\n                       (ii) Individuals who, as of the Effective Date, \nconstitute the Board (the 'Incumbent Board') cease for any reason to constitute\nat least a majority of the Board; provided, however, that any individual\nbecoming a director subsequent to the Effective Date whose election, or\nnomination for election by the Company's shareholders, was approved by a vote of\nat least a majority of the directors then comprising the Incumbent Board shall\nbe considered as though such individual were a member of the Incumbent Board,\nbut excluding, for this purpose, any such individual whose initial assumption of\noffice occurs as a result of an actual or threatened election contest with\nrespect to the election or removal of directors or other actual or threatened\nsolicitation of proxies or consents by or on behalf of a Person other than the\nBoard; or\n\n                       (iii) Consummation of a reorganization, merger or\nconsolidation or sale or other disposition of all or substantially all of the\nassets of the Company or an acquisition of assets of another corporation (a\n'Business Combination'), in each case, unless, following such Business\nCombination, (A) all or substantially all of the individuals and entities who\nwere the beneficial owners, respectively, of the Outstanding Company Common\nStock and Outstanding Company Voting Securities immediately prior to such\nBusiness Combination beneficially own, directly or indirectly, more than 50% of,\nrespectively, the then outstanding shares of common stock and the combined\nvoting power of the then outstanding voting securities entitled to vote\ngenerally in the election of directors, as the case may be, of the corporation\nresulting from such Business Combination (including, without limitation, a\ncorporation which as a result of such transaction owns the Company or all or\nsubstantially all of the Company's assets either directly or through one or more\nsubsidiaries) in substantially the same proportions as their ownership,\nimmediately prior to such Business Combination of the Outstanding Company Common\nStock and Outstanding Company Voting Securities, as the case may be, (B) no\nPerson (excluding any corporation resulting from such Business Combination or\nany employee benefit plan (or related trust) beneficially owns, directly or\nindirectly, 20% or more of, respectively, the then outstanding shares of common\nstock of the corporation resulting from such Business Combination or the\ncombined voting power of the then outstanding voting securities of such\ncorporation, except to the extent that such ownership existed prior to the\nBusiness Combination and (C) at least a majority of the members of the board of\ndirectors of the corporation resulting from such Business Combination were\nmembers of the Incumbent Board at the time of the execution of the initial\nagreement, or of the action of the Board, providing for such Business\nCombination; or\n\n                                      -3-\n\n\n                       (iv) Approval by the shareholders of the Company of a\ncomplete liquidation or dissolution of the Company.\n\n                  (h) Code. The Internal Revenue Code of 1986, as amended from\ntime to time.\n\n                  (i) Committee. The Compensation Committee of the Board.\n\n                  (j) Company. Newmont Mining Corporation and any successor\nthereto.\n\n                  (k) Date of Termination. The date on which a Participant\nceases to be an Employee of the Company and its Affiliates.\n\n                  (l) Disability. A condition such that the Employee has\nterminated employment with the Company and\/or all participating Employers with a\nqualifying disability and has immediately began receiving benefits from a\nlong-term disability plan of the Company or any participating Employer.\n\n                  (m) Effective Date. February 1, 1999.\n\n                  (n) Employee. Any full-time, regular-benefit, non-bargaining\nemployee of an Employer.\n\n                  (o) Employer. The Company or any Subsidiary which participates\nin the Plan pursuant to Article V hereof or, under the circumstances set forth\nin the second sentence of Section 3.1 hereof, any Subsidiary or Affiliate\ndescribed in such sentence.\n\n                  (p) ERISA. The Employee Retirement Income Security Act of\n1974, as amended from time to time.\n\n                  (q) Good Reason. With respect to any Participant, without such\nParticipant's written consent, (i) the assignment to the Participant of any\nduties inconsistent in any respect with the Participant's position (including\nstatus, offices, titles and reporting requirements), authority, duties or\nresponsibilities immediately before the Change of Control, or any other action\nby the Company which results in a significant diminution in such position,\nauthority, duties or responsibilities, excluding for this purpose an isolated,\ninsubstantial and inadvertent action not taken in bad faith and which is\nremedied by the Company or the Employer promptly after receipt of notice thereof\ngiven by the Participant; (ii) any reduction in the Participant's Annual Salary,\nor annual target bonus opportunity, or any material reduction in other\ncompensation or employee benefits, as in effect during the 120-day period\nimmediately preceding the Change of Control (or as such amounts may be increased\nfrom time to time), other than as a result of an isolated and inadvertent action\nnot taken in bad faith and which is remedied by the Company promptly after\nreceipt of notice thereof given by the Participant; (iii) the Company or the\nEmployer requiring the Participant to relocate his or her principal place of\n\n\n                                      -4-\n\nbusiness to a location which is more than 35 miles from his or her previous\nprincipal place of business; (iv) any purported termination of the Plan\notherwise than as expressly permitted by the Plan; or (v) any failure by the\nCompany to comply with and satisfy Article V of the Plan. For purposes of the\nPlan, any good faith determination of 'Good Reason' made by the Participant\nshall be conclusive.\n\n                  (r) Participant. An individual who is designated as such\npursuant to Section 3.1.\n\n                  (s) Plan. The Newmont Mining Corporation Executive Change of\nControl Severance Plan.\n\n                  (t) Separation Benefits. The benefits described in Section 4.2\nthat are provided to qualifying Participants under the Plan.\n\n                  (u) Subsidiary. Any corporation in which the Company, directly\nor indirectly, holds a majority of the voting power of such corporation's\noutstanding shares of capital stock.\n\n                  (v) Target Annual Bonus. The annual bonus that the Participant\nwould have received for the year in which his or her Date of Termination occurs,\nif the target goals had been achieved.\n\n                                   ARTICLE III\n                                   ELIGIBILITY\n\n                  3.1 Participation. Each of the individuals named on Schedule 1\nhereto shall be a Participant in the Plan. Schedule 1 may be amended by the\nChief Executive Officer of the Company from time to time to add individuals as\nParticipants. If a Participant's employment is transferred from an Employer to a\nSubsidiary or Affiliate of the Company which is not a participating Employer\nunder the Plan, the provisions of the Plan will continue to apply to such\nParticipant while employed by such Subsidiary or Affiliate.\n\n                  3.2 Duration of Participation. A Participant shall only cease\nto be a Participant in the Plan as a result of an amendment or termination of\nthe Plan complying with Article VII of the Plan, or when he ceases to be an\nEmployee of any Employer, unless, at the time he ceases to be an Employee, such\nParticipant is entitled to payment of a Separation Benefit as provided in the\nPlan or there has been an event or occurrence constituting Good Reason that\nwould enable the Participant to terminate his employment and receive a\nSeparation Benefit. A Participant entitled to payment of a Separation Benefit or\nany other amounts under the Plan shall remain a Participant in the Plan until\nthe full amount of the Separation Benefit and any other amounts payable under\nthe Plan have been paid to the Participant.\n\n\n\n                                      -5-\n\n\n                                   ARTICLE IV\n                               SEPARATION BENEFITS\n\n                  4.1 Terminations of Employment Which Give Rise to Separation\nBenefits Under This Plan. A Participant shall be entitled to Separation Benefits\nas set forth in Section 4.2 below if, at any time following a Change of Control\nand prior to the third anniversary of the Change of Control, the Participant's\nEmployment is terminated (i) by the Company for any reason other than Cause,\ndeath, or Disability or (ii) by the Participant within 120 days after the\nParticipant has knowledge of the occurrence of Good Reason.\n\n                  4.2 Separation Benefits.\n\n                  (a) If a Participant's employment is terminated in\ncircumstances entitling such participant to Separation Benefits pursuant to\nSection 4.1, the Company shall provide to such Participant, within ten days\nfollowing the Date of Termination, a lump sum cash payment as set forth in\nsubsection (b) below, and shall provide to the Participant the continued\nbenefits as set forth in subsection (c) below and the outplacement services set\nforth in subsection (d) below. For purposes of determining the benefits set\nforth in subsections (b) and (c), if the termination of the Participant's\nemployment is for Good Reason based upon a reduction of the Participant's Annual\nSalary, opportunity to earn annual bonuses, or other compensation or employee\nbenefits, such reduction shall be ignored.\n\n                  (b) The cash lump sum referred to in Section 4.2(a) shall be\nthe aggregate of the following amounts:\n\n                      (i) the sum of (A) the Participant's Annual Salary through\n              the Date of Termination, (B) the product of (1) the Participant's\n              Target Annual Bonus and (2) a fraction, the numerator of which is\n              the number of days in the such year through the Date of\n              Termination, and the denominator of which is 365, and (C) any\n              compensation previously deferred by the Participant (together with\n              any accrued interest or earnings thereon) and any accrued vacation\n              pay, in each case to the extent not theretofore paid and in full\n              satisfaction of the rights of the Participant thereto;\n\n                      (ii) an amount equal to the product of (A) two, times (B)\n              the sum of (1) the Participant's Annual Salary, (2) the higher of\n              the Participant's Annual Bonus Amount or the annual bonus paid or\n              payable, including any bonus or portion thereof which has been\n              earned but deferred (and annualized for any fiscal year consisting\n              of less than 12 full months or during which the Participant was\n              employed for less than 12 full months), for the most recently\n              completed fiscal year prior to the Participant's Date of\n              Termination, and (3) the highest employer matching contribution\n              made to the 401(k) Plan of the Company or any Affiliate, or any\n              successor or replacement plans, on behalf of the Participant,\n              during the last three full fiscal years prior to the Change of\n              Control; and\n\n                                      -6-\n\n\n                      (iii) an amount (calculated consistent with the example\n              set forth on Exhibit A to this Plan) equal to the excess (without\n              present value discount, as a result of receiving such amount prior\n              to the end of the three-year period following the Date of\n              Termination) of (a) the actuarial equivalent of the benefit under\n              the qualified defined benefit retirement plan of the Company or\n              any Affiliate in which the Participant participates immediately\n              prior to the Change of Control, or under any such plan with more\n              favorable benefits in which the Participant participates\n              following the Change of Control (the 'Retirement Plan'), and any\n              excess or supplemental retirement plan, program or arrangement of\n              the Company or any Affiliate in which the Participant\n              participates immediately prior to the Change of Control or under\n              any such plans, programs or arrangements with more favorable\n              benefits in which the Participant participates following the\n              Change of Control (together, the 'SERP') which the Participant\n              would receive if the Participant's employment continued for three\n              years after the Date of Termination, assuming for this purpose\n              that (i) the Participant is fully vested in all benefits to be\n              calculated under this clause (a), and (ii) the Participant is\n              treated as having attained three additional years of age under\n              the Retirement Plan or the SERP, including for purposes of\n              reducing any otherwise applicable actuarial reduction, but not\n              for purposes of reducing the number of years of the Participant's\n              life expectancy, over (b) the actuarial equivalent of the\n              Participant's actual benefit (paid or payable), if any, under the\n              Retirement Plan and the SERP as of the Date of Termination. The\n              actuarial assumptions used for determining actuarial equivalence\n              in this Section 4.2(b)(iii) shall be no less favorable to the\n              Participant, than the most favorable of those in effect under the\n              Company's Retirement Plan and SERP, as the case may be,\n              immediately prior to the Change of Control or on the Date of\n              Termination.\n\n                  (c) During the three-year period following the Participant's\nDate of Termination, the Participant and his or her family shall be provided\nwith medical, dental, disability and life insurance benefits as if the\nParticipant's employment had not been terminated; provided, that such benefits\nand the cost to the Participant shall be no less favorable than under the\nprograms in which the Participant participated during the 120-day period\nimmediately prior to the Change of Control); provided, however, that if the\nParticipant 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 Participant for retiree medical, dental and life insurance\nbenefits under the Company's plans, practices, programs and policies, the\nParticipant shall be considered to have remained employed during the two-year\nperiod following the Date of Termination and to have retired on the last day of\nsuch period. To the extent any benefits described in this Section 4.2(c) cannot\nbe provided pursuant to the appropriate plan or program maintained for\nEmployees, the Company shall provide such benefits outside such plan or program\nat no additional cost (including without limitation tax cost) to the\nParticipant.\n\n                  (d) The Company shall, at its sole expense as incurred,\nprovide the Participant with outplacement services the scope and provider of\nwhich shall be consistent with the Company's practices during the one-year\nperiod immediately preceding the Change of Control.\n\n\n\n                                      -7-\n\n\n                  4.3 Other Benefits Payable. To the extent not theretofore paid\nor provided, the Company shall timely pay or provide (or cause to be paid or\nprovided) to a Participant entitled to the Separation Benefits, any other\namounts or benefits required to be paid or provided to the Participant or which\nthe Participant is eligible to receive under any plan, program, policy or\npractice or contract or agreement of the Company and its Affiliates, but\nexcluding any severance pay or pay in lieu of notice required to be paid to such\nParticipant under applicable law or any other severance pay plan or policy of\nthe Company or any Employer.\n\n                  4.4 Certain Additional Payments by the Company.\n\n                  (a) Anything in this Plan 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 a\nParticipant (whether paid or payable or distributed or distributable pursuant to\nthe terms of this Plan or otherwise, but determined without regard to any\nadditional payments required under this Section 4.4(a)) (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 Participant 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 Participant shall be\nentitled to receive an additional payment (a 'Gross-Up Payment') in an amount\nsuch that after payment by the Participant of all taxes (including any interest\nor penalties imposed with respect to such taxes), including, without limitation,\nany income taxes (and any interest and penalties imposed with respect thereto)\nand Excise Tax imposed upon the Gross-Up Payment, the Participant retains an\namount of the Gross-Up Payment equal to the Excise Tax imposed upon the\nPayments. Notwithstanding the foregoing provisions of this Section 4.4(a), if it\nshall be determined that the Participant is entitled to a Gross-Up Payment, but\nthat the Payments do not exceed 110% of the greatest amount (the 'Safe Harbor\nAmount') that could be paid to the Participant such that the receipt of Payments\nwould not give rise to any Excise Tax, then no Gross-Up Payment shall be made to\nthe Participant and the amounts payable under this Plan shall be reduced so that\nthe Payments, in the aggregate, are reduced to the Safe Harbor Amount. The\nreduction of the amounts payable hereunder, if applicable, shall be made by\nfirst reducing the payments under Section 4.2(b)(ii), unless an alternative\nmethod of reduction is elected by the Participant. For purposes of reducing the\nPayments to the Safe Harbor Amount, only amounts payable under this Plan (and no\nother Payments) shall be reduced. If the reduction of the amount payable under\nthis Plan would not result in a reduction of the Payments to the Safe Harbor\nAmount, no amounts payable under this Plan shall be reduced pursuant to this\nSection 4.4(a).\n\n                  (b) Subject to the provisions of Section 4.4(c), all\ndeterminations required to be made under this Section 4.4, including whether and\nwhen a Gross-Up Payment is required and the amount of such Gross-Up Payment and\nthe assumptions to be utilized in arriving at such determination, shall be made\nby Arthur Andersen LLP (the 'Accounting Firm') which shall provide detailed\nsupporting calculations both to the Company and the Participant within 15\nbusiness days of the receipt of notice from the Participant that there has been\na Payment, or such earlier time as is requested by the Company. In the event\nthat the Accounting Firm is serving as \n\n\n\n\n                                      -8-\n\n\naccountant or auditor for the individual, entity or group effecting the Change\nof Control, the Participant shall appoint another nationally recognized\naccounting firm to make the determinations required hereunder (which accounting\nfirm shall then be referred to as the Accounting Firm hereunder). All fees and\nexpenses of the Accounting Firm shall be borne solely by the Company. Any\nGross-Up Payment, as determined pursuant to this Section 4.4, shall be paid by\nthe Company to the Participant within five days of the receipt of the Accounting\nFirm's determination. Any determination by the Accounting Firm shall be binding\nupon the Company and the Participant. As a result of the uncertainty in the\napplication of Section 4999 of the Code at the time of the initial determination\nby the Accounting Firm hereunder, it is possible that Gross-Up Payments which\nwill not have been made by the Company should have been made ('Underpayment'),\nconsistent with the calculations required to be made hereunder. In the event\nthat the Company exhausts its remedies pursuant to Section 4.4(c) and the\nParticipant thereafter is required to make a payment of any Excise Tax, the\nAccounting Firm shall determine the amount of the Underpayment that has occurred\nand any such Underpayment shall be promptly paid by the Company to or for the\nbenefit of the Participant.\n\n                  (c) The Participant shall notify the Company in writing of any\nclaim by the Internal Revenue Service that, if successful, would require the\npayment by the Company of the Gross-Up Payment. Such notification shall be given\nas soon as practicable but no later than ten business days after the Participant\nis informed in writing of such claim and shall apprise the Company of the nature\nof such claim and the date on which such claim is requested to be paid. The\nParticipant shall not pay such claim prior to the expiration of the 30-day\nperiod following the date on which it gives such notice to the Company (or such\nshorter period ending on the date that any payment of taxes with respect to such\nclaim is due). If the Company notifies the Participant in writing prior to the\nexpiration of such period that it desires to contest such claim, the Participant\nshall:\n\n                       (i) give the Company any information reasonably requested\nby the Company relating to such claim,\n\n                       (ii) take such action in connection with contesting such\nclaim as the Company shall reasonably request in writing from time to time,\nincluding, without limitation, accepting legal representation with respect to\nsuch claim by an attorney reasonably selected by the Company,\n\n                       (iii) cooperate with the Company in good faith in order\neffectively to contest such claim, and\n\n                       (iv) permit the Company to participate in any proceedings\nrelating to such 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 \n\n\n\n\n                                      -9-\n\n\nindemnify and hold the Participant harmless, on an after-tax basis, for any\nExcise Tax or income tax (including interest and penalties with respect thereto)\nimposed as a result of such representation and payment of costs and expenses.\nWithout limitation on the foregoing provisions of this Section 4.4(c), the\nCompany shall control all proceedings taken in connection with such contest and,\nat its sole option, may pursue or forgo any and all administrative appeals,\nproceedings, hearings and conferences with the taxing authority in respect of\nsuch claim and may, at its sole option, either direct the Participant to pay the\ntax claimed and sue for a refund or contest the claim in any permissible manner,\nand the Participant agrees to prosecute such contest to a determination before\nany administrative tribunal, in a court of initial jurisdiction and in one or\nmore appellate courts, as the Company shall determine; provided, however, that\nif the Company directs the Participant to pay such claim and sue for a refund,\nthe Company shall advance the amount of such payment to the Participant, on an\ninterest-free basis and shall indemnify and hold the Participant harmless, on an\nafter-tax basis, from any Excise Tax or income tax (including interest or\npenalties with respect thereto) imposed with respect to such advance or with\nrespect to any imputed income with respect to such advance; and further provided\nthat any extension of the statute of limitations relating to payment of taxes\nfor the taxable year of the Participant with respect to which such contested\namount is claimed to be due is limited solely to such contested amount.\nFurthermore, the Company's control of the contest shall be limited to issues\nwith respect to which a Gross-Up Payment would be payable hereunder and the\nParticipant 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 Participant of an amount\nadvanced by the Company pursuant to Section 4.4(c), the Participant becomes\nentitled to receive any refund with respect to such claim, the Participant shall\n(subject to the Company's complying with the requirements of Section 4.4(c))\npromptly pay to the Company the amount of such refund (together with any\ninterest paid or credited thereon after taxes applicable thereto). If, after the\nreceipt by the Participant of an amount advanced by the Company pursuant to\nSection 4.4(c), a determination is made that the Participant shall not be\nentitled to any refund with respect to such claim and the Company does not\nnotify the Participant in writing of its intent to contest such denial of refund\nprior to the expiration of 30 days after such determination, then such advance\nshall be forgiven and shall not be required to be repaid and the amount of such\nadvance shall offset, to the extent thereof, the amount of Gross-Up Payment\nrequired to be paid.\n\n                                    ARTICLE V\n                             PARTICIPATING EMPLOYERS\n\n                  Any Subsidiary of the Company may become a participating\nEmployer in the Plan following approval by the Company. The provisions of the\nPlan shall be fully applicable to the Employees of any such Subsidiary who are\nParticipants pursuant to Section 3.1.\n\n\n\n                                      -10-\n\n\n                                   ARTICLE VI\n                              SUCCESSOR TO COMPANY\n\n                  This Plan shall bind any successor of the Company, its assets\nor its businesses (whether direct or indirect, by purchase, merger,\nconsolidation or otherwise), in the same manner and to the same extent that the\nCompany would be obligated under this Plan if no succession had taken place.\n\n                  In the case of any transaction in which a successor would not\nby the foregoing provision or by operation of law be bound by this Plan, the\nCompany shall require such successor expressly and unconditionally to assume and\nagree to perform the Company's obligations under this Plan, in the same manner\nand to the same extent that the Company would be required to perform if no such\nsuccession had taken place. The term 'Company,' as used in this Plan, shall mean\nthe Company as hereinbefore defined and any successor or assignee to the\nbusiness or assets which by reason hereof becomes bound by this Plan.\n\n                                   ARTICLE VII\n                       DURATION, AMENDMENT AND TERMINATION\n\n                  7.1 Duration. If a Change of Control has not occurred, this\nPlan shall expire five years from the Effective Date, unless extended for an\nadditional period or periods by resolution adopted by the Board. If a Change of\nControl occurs while this Plan is in effect, this Plan shall continue in full\nforce and effect for at least three years following such Change of Control, and\nshall not terminate or expire until after all Participants who become entitled\nto any payments hereunder shall have received such payments in full.\n\n                  7.2 Amendment or Termination. The Board may amend or terminate\nthis Plan; provided, that this Plan may not be terminated or amended in a manner\nadverse to Participants (including modifying the eligibility of Employees to\nparticipate in the Plan) prior to the fifth anniversary of the Effective Date or\nduring the three-year period following a Change of Control.\n\n                  7.3 Procedure for Extension, Amendment or Termination. Any\nextension, amendment or termination of this Plan by the Board in accordance with\nthe foregoing shall be made by action of the Board in accordance with the\nCompany's charter and by-laws and applicable law.\n\n                                  ARTICLE VIII\n                                  MISCELLANEOUS\n\n                  8.1 Full Settlement. The Company's obligation to make the\npayments provided for under this Plan 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 a\nParticipant or others. In no event shall a Participant be\n\n\n\n\n                                      -11-\n\n\nobligated to seek other employment or take any other action by way of mitigation\nof the amounts payable to the Participant under any of the provisions of this\nPlan and such amounts shall not be reduced whether or not the Participant\nobtains other employment. The Company agrees to pay as incurred, to the full\nextent permitted by law, all legal fees and expenses which a Participant may\nreasonably incur as a result of any contest (regardless of the outcome thereof)\nby the Company, the Participant or others of the validity or enforceability of,\nor liability under, any provision of this Plan or any guarantee of performance\nthereof (including as a result of any contest by the Participant about the\namount of any payment pursuant to this Plan), plus in each case interest on any\ndelayed payment at the applicable Federal rate provided for in Section\n7872(f)(2)(A) of the Code.\n\n                  8.2 Employment Status. This Plan does not constitute a\ncontract of employment or impose on the Participant or the Participant's\nEmployer any obligation for the Participant to remain an Employee or change the\nstatus of the Participant's employment or the policies of the Company and its\naffiliates regarding termination of employment.\n\n                  8.3 Confidential Information. Each Participant shall hold in a\nfiduciary capacity for the benefit of the Company all secret or confidential\ninformation, knowledge or data relating to the Company or any of its affiliated\ncompanies, and their respective businesses, which shall have been obtained by\nthe Participant during the Participant's employment by the Company or any of its\naffiliated companies and which shall not be or become public knowledge (other\nthan by acts by the Participant or representatives of the Participant in\nviolation of this Plan). After termination of a Participant's employment with\nthe Company, the Participant shall not, without the prior written consent of the\nCompany or as may otherwise be required by law or legal process, communicate or\ndivulge any such information, knowledge or data to anyone other than the Company\nand those designated by it. In no event shall an asserted violation of the\nprovisions of this Section 8.3 constitute a basis for deferring or withholding\nany amounts otherwise payable under this Plan.\n\n                  8.4 Named Fiduciary; Administration. The Company is the named\nfiduciary of the Plan, and shall administer the Plan, acting through the Plan\nAdministration Committee.\n\n                  8.5 Claim Procedure. If an Employee or former Employee makes a\nwritten request alleging a right to receive benefits under this Plan or alleging\na right to receive an adjustment in benefits being paid under the Plan, the\nCompany shall treat it as a claim for benefit. All claims for benefit under the\nPlan shall be sent to the Plan Claims Review Committee of the Company and must\nbe received within 30 days after termination of employment. If the Company\ndetermines that any individual who has claimed a right to receive benefits, or\ndifferent benefits, under the Plan is not entitled to receive all or any part of\nthe benefits claimed, it will inform the claimant in writing of its\ndetermination and the reasons therefor in terms calculated to be understood by\nthe claimant. The notice will be sent within 60 days of the claim. The notice\nshall make specific reference to the pertinent Plan provisions on which the\ndenial is based, and describe any additional material or information is\nnecessary. Such notice shall, in addition, \n\n\n\n\n                                      -12-\n\n\ninform the claimant what procedure the claimant should follow to take advantage\nof the review procedures set forth below in the event the claimant desires to\ncontest the denial of the claim. The claimant may within 90 days thereafter\nsubmit in writing to the Company a notice that the claimant contests the denial\nof his or her claim by the Company and desires a further review. The Plan\nAppeals Committee of the Company shall within 60 days thereafter review the\nclaim and authorize the claimant to appear personally and review pertinent\ndocuments and submit issues and comments relating to the claim to the persons\nresponsible for making the determination on behalf of the Company. The Company\nwill render its final decision with specific reasons therefor in writing and\nwill transmit it to the claimant within 60 days of the written request for\nreview. If the Company fails to respond to a claim filed in accordance with the\nforegoing within 60 days, the Company shall be deemed to have denied the claim.\nThis Section 8.5 shall not serve to prohibit any Participant from bringing an\naction in a court of competent jurisdiction to enforce his or her rights under\nthe Plan after satisfaction of the foregoing procedures.\n\n                  8.6 Unfunded Plan Status. This Plan is intended to be an\nunfunded plan maintained primarily for the purpose of providing deferred\ncompensation for a select group of management or highly compensated employees,\nwithin the meaning of Section 401 of ERISA. All payments pursuant to the Plan\nshall be made from the general funds of the Company and no special or separate\nfund shall be established or other segregation of assets made to assure payment.\nNo Participant or other person shall have under any circumstances any interest\nin any particular property or assets of the Company as a result of participating\nin the Plan. Notwithstanding the foregoing, the Company may (but shall not be\nobligated to) create one or more grantor trusts, the assets of which are subject\nto the claims of the Company's creditors, to assist it in accumulating funds to\npay its obligations under the Plan.\n\n                  8.7 Validity and Severability. The invalidity or\nunenforceability of any provision of the Plan shall not affect the validity or\nenforceability of any other provision of the Plan, which shall remain in full\nforce and effect, and any prohibition or unenforceability in any jurisdiction\nshall not invalidate or render unenforceable such provision in any other\njurisdiction.\n\n                  8.8 Governing Law. The validity, interpretation, construction\nand performance of the Plan shall in all respects be governed by the laws of\nColorado, without reference to principles of conflict of law, except to the\nextent pre-empted by Federal law.\n\n\n                                      -13-\n\n\n\n\n                                                                      Schedule 1\n                                                                  to Section 3.1\n\n\n                           NEWMONT MINING CORPORATION\n\n                   EXECUTIVE CHANGE OF CONTROL SEVERANCE PLAN\n\n                                  Participants\n                            (as of February 1, 1999)\n\n\n           Timothy Acton                         Paul Lahti\n           David A. Baker                        Guy L. Lansdown\n           Britt D. Banks                        Brian Levet\n           D. Scott Barr                         Thomas P. Mahoney\n           John Brownlie                         James Miller\n           Robert Bush                           Jack H. Morris\n           Odin Christensen                      Richard Ness\n           Steven A. Conte                       James Osterkamp\n           Thomas Conway                         Richard Perry\n           Anthony Cost                          Jean Rendu\n           Tom Enos                              Scott Santti\n           W. Durand Eppler                      Timothy J. Schmitt\n           Gary Farmar                           Lee Shumway\n           Alan Fitzpatrick                      Gary Simmons\n           Patricia Flanagan                     Craig Smith\n           Bruce D. Hansen                       Ali Soltani\n           Joy E. Hansen                         Douglas Sparks\n           William Hart                          Trent Tempel\n           Gary Hevelone                         Michael Thomsen\n           Don Hullinger                         James Voorhees\n           Jeffrey Huspeni                       Linda K. Wheeler\n           Donald G. Karras                      Mark Wood\n           Leendert Krol\n           Leland Krugerud\n           Ihor Kunasz\n\n\n\n                                                                       EXHIBIT A\n\n                           NEWMONT MINING CORPORATION\n                   EXECUTIVE CHANGE OF CONTROL SEVERANCE PLAN\n\n\n\n                                         'Enhanced'         'Actual'\n                                          Pension           Pension\n                                          Benefit           Benefit        \n                                       ------------      ------------\n                                                               \n1.  Final average earnings\n    (pensionable earnings)             $    350,000      $    350,000(1)\n\n2.  Times 1.75%                        x      .0175      x      .0175\n                                       ------------      ------------\n                                              6,125             6,125\n\n3.  Social Security offset(2)                   -0-               -0-\n\n4.  Net benefit unit                          6,125             6,125\n\n5.  Times years of\n    credited service                   x         15      x         12(3)\n                                       ------------      ------------\n                                             91,875            73,500\n\n6.  Early commencement\n    of pension adjustment(4)\n             Age                                 58                55\n             Factor                    x         84%     x         72%\n                                       ------------      ------------\n\n\n7.  Early commencement\n    benefit                                  77,175            52,920\n\n8.  Times life expectancy              x     25.658 yrs. x     25.658 yrs.\n                                       ------------      ------------\n\n9.  Lump sum benefit                   $  1,980,156      $  1,357,821\n                                       ============      ============\n\n10. Benefit payable pursuant\n    to Section 4.2(b)(iii):            $ 1,980,156\n                                       ( 1,357,821)\n                                       -----------\n                                       $   622,335\n                                       ===========\n\n\n--------\n\n(1)      Assumes a separation benefit pursuant to Section 4.2(b)(ii) of $500,000\n         (excluding any amount attributable to Section 4.2(b)(ii)(3)). Such\n         amount is includible pursuant to Section 1.25(b)(i) of Newmont Gold\n         Company's Pension Plan. Divide by '5' for impact on final average\n         earnings.\n\n(2)      Ignored for purposes of this example.\n\n(3)      Includes two additional years of deemed service pursuant to Section\n         1.26(d) of Newmont Gold Company's Pension Plan.\n\n(4)      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-39793","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\/39793","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=39793"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39793"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39793"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39793"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}