EXECUTIVE CHANGE OF CONTROL PLAN OF NEWMONT As Amended and Restated Effective January 1, 2004 TABLE OF CONTENTS

EX-10.2 3 dex102.htm AMENDED AND RESTATED EXECUTIVE CHANGE OF CONTROL PLAN Amended and Restated Executive Change of Control Plan

Exhibit 10.2

EXECUTIVE CHANGE OF CONTROL PLAN OF NEWMONT

As Amended and Restated Effective January 1, 2004

TABLE OF CONTENTS


		Page
INTRODUCTION		1
ARTICLE I
DEFINITIONS		1
ARTICLE II

ELIGIBILITY
Section 2.01.	Eligibility Requirements	6
Section 2.02.	Duration of Participation	6
ARTICLE III

BENEFITS
Section 3.01.	Separation Benefits	7
Section 3.02.	Timing and Amount of Separation Benefits	7
Section 3.03.	Other Benefits Payable	8
Section 3.04.	Certain Additional Payments by the Employer	9
Section 3.05.	Coordination with Governmental Plans	11
ARTICLE IV

TERMINATION OF BENEFITS
Section 4.01.	Termination of Benefits Generally	12
ARTICLE V
CONTINUATION OF HEALTH CARE COVERAGE		12
ARTICLE VI
PROTECTION OF MEDICAL PRIVACY		12
ARTICLE VII

COMMITTEES
Section 7.01.	Appointment of Committees	12
Section 7.02.	Responsibilities of the Administration Committee	12
Section 7.03.	Responsibilities of the Appeals Committee	13
Section 7.04.	Organization of Committees	13
Section 7.05.	Indemnification of Committee Members	13

Executive Change of Control Plan of Newmont

Effective January 1, 2004


ARTICLE VIII

CLAIMS PROCEDURE
Section 8.01.	Claim for Benefits	14
Section 8.02.	Timing of Benefit Determinations	14
Section 8.03.	Notification of Denial of Claim	14
Section 8.04.	Appeal Procedure	15
Section 8.05.	Timing of Decision on Appeal	15
Section 8.06.	Notification of Decision on Appeal	16
Section 8.07.	Legal Actions	16
Section 8.08.	Discretion of Administration Committee and Appeals Committee	16

ARTICLE IX

MISCELLANEOUS
Section 9.01.	Full Settlement	16
Section 9.02.	Confidential Information	17
Section 9.03.	Unfunded Plan Status	17
Section 9.04.	Employment Status	17
Section 9.05.	Validity and Severability	17
Section 9.06.	Governing Law	17
Section 9.07.	Right of Offset	17
Section 9.08.	Conformance With Applicable Laws	17
Section 9.09.	Payments Due Minors or Incapacitated Persons	18

ARTICLE X

DURATION, AMENDMENT AND TERMINATION
Section 10.01.	Duration	18
Section 10.02.	Amendment or Termination	18
Section 10.03.	Procedure for Extension, Amendment or Termination	18

Executive Change of Control Plan of Newmont

Effective January 1, 2004

EXECUTIVE CHANGE OF CONTROL PLAN OF NEWMONT

INTRODUCTION

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

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

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

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

Therefore, in order to fulfill the above purposes, the following Plan has been developed and is hereby adopted.

DEFINITIONS

The following definitions shall apply to the Plan.

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

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

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“Annual Bonus” means the aggregate annual bonus that a Participant is eligible to earn pursuant to the Annual Incentive Compensation Payroll Practice of the Employer or any Affiliated Entity or any successor or replacement plans or payroll practices. “Annual Bonus” shall not include the value of any stock-based compensation (including stock options, deferred stock, restricted stock and restricted stock units), incentive payments pursuant to the Employee Incentive Compensation Payroll Practice or the stock component of the Intermediate Term Incentive Compensation Plan. “Annual Bonus” shall include the cash component and cash transition payments under the Intermediate Term Incentive Compensation Plan.

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

(i) the Salaried Employee’s Annual Salary,

(ii) the higher of the Salaried Employee’s greatest Annual Bonus received in the last three years immediately prior to the Change of Control or the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Salaried Employee was employed for less than 12 full months), for the most recently completed fiscal year prior to the Salaried Employee’s Date of Termination, and

(iii) the highest employer matching contribution made to the Newmont Retirement Savings Plan on behalf of the Salaried Employee, during the last three full fiscal years prior to the Change of Control.

“Annual Salary” means the Salaried Employee’s regular annual base salary immediately prior to his or her termination of employment (including premium pay) and pre-tax deferrals under the Retirement Savings Plan of Newmont or similar plans. “Annual Salary” shall not include any extra pay for foreign service or foreign assignment, hardship pay, overtime, moving allowances, the cost of goods and services, danger pay, the value of any stock-based compensation (including stock options, deferred stock, restricted stock and restricted stock units), incentive payments pursuant to the Employee Performance Incentive Compensation Payroll Practice or the Intermediate Term Incentive Compensation Plan or any other incentive-based payroll practice, bonus or extraordinary compensation payments.

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

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

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

(i) the willful and continued failure of the Salaried Employee to perform substantially the Salaried Employee’s duties with the Employer or one of its Affiliated Entities (other than any such failure resulting from incapacity due to physical or mental illness) or his failure to follow policies, directions or the Employer’s code of conduct, after a written demand for substantial performance is delivered to the Salaried Employee by the Board or its delegate. Such written demand shall identify the manner in which the

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Board or its delegate believes that the Salaried Employee has not substantially performed the Salaried Employee’s duties. Notwithstanding the foregoing, written demand for substantial performance shall not be required if the Board or its delegate determines that immediate action, including termination of the Salaried Employee, is necessary to avoid potential injury or harm to the Employer or any person; or

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

(iii) any dishonest or fraudulent activity by the Salaried Employee or the reasonable belief by the Employer of the Salaried Employee’s breach of any contract, agreement or representation with the Employer or an Affiliated Entity.

In the event “Cause” is determined to exist by the Employer, and the Salaried Employee had received payments under the Plan or otherwise been credited with amounts under the Plan, the Employer shall be entitled to recover such amounts from the Salaried Employee or offset such amount from any other amounts owed by the Employer to the Salaried Employee.

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

(i) The acquisition in one or a series of transactions by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of either (x) the then outstanding shares of common stock of Newmont Mining (the “Outstanding Company Common Stock”) or (y) the combined voting power of the then outstanding voting securities of Newmont Mining entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that for purposes of this subsection (i), the following acquisitions shall not constitute a Change of Control: (A) any acquisition directly from Newmont Mining other than an acquisition by virtue of the exercise of a conversion privilege, unless the security being so converted was itself acquired directly from Newmont Mining, (B) any acquisition by Newmont Mining, (C) any acquisition by any employee benefits plan (or related trust) sponsored or maintained by Newmont Mining or any corporation controlled by Newmont Mining or (D) any acquisition by any corporation pursuant to a transaction which complies with clauses (A), (B) and (C) of paragraph (iii) below; or

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

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excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board of Directors of Newmont Mining; or

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

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

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

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

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

“Effective Date” means the restatement date of January 1, 2004.

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

“Employer” means Newmont USA Limited and any Affiliated Entities.

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

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

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

(ii) the Employer requiring the Salaried Employee to relocate his or her principal place of business to a location which is more than 35 miles from his or her previous principal place of business;

(iii) any failure by the Employer to comply with and satisfy its obligations under the Plan; or

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

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Notwithstanding the foregoing, “Good Reason” shall not exist if, within 30 days of receiving notice from the Salaried Employee of the occurrence of any of the above events, the Employer remedies any of the above.

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

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

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

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

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

ELIGIBILITY

Section .01. Eligibility Requirements. Each Salaried Employee at a pay grade level of 109 or above shall be a Salaried Employee in the Plan. A Salaried Employee shall remain a Participant and shall be eligible for benefits under the Plan regardless of his transfer(s) to any Affiliated Entities (including entities domiciled outside the United States) regardless of whether the Affiliated Entity is a participating Employer in the Plan. Notwithstanding the foregoing, the Board or its delegate may deny an otherwise eligible Salaried Employee participation in the Plan at any time prior to a Change of Control or Good Reason. Hourly-Rated Employees are not eligible for benefits under the Plan.

Section .02. Duration of Participation. A Salaried Employee shall only cease to be a Participant in the Plan as a result of an amendment or termination of the Plan in accordance with Article X, or when he ceases to be a Salaried Employee of any Employer, unless, at the time he ceases to be a Salaried Employee, the Salaried Employee is entitled to payment of a Separation Benefit as provided in the Plan or there has been an event or occurrence constituting Good Reason that would enable the Salaried Employee to terminate his employment and receive a Separation Benefit. A Salaried Employee entitled to payment of a Separation Benefit or any other amounts under the Plan shall remain a Participant in the Plan until the full amount of the Separation Benefit and any other amounts payable under the Plan have been paid to the Salaried Employee.

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BENEFITS

Section .01. Separation Benefits. A Salaried Employee shall be entitled to Separation Benefits as set forth in Section 3.02 below if, at any time following a Change of Control and prior to the third anniversary of the Change of Control, the Salaried Employee’s employment is terminated (i) by the Employer for any reason other than Cause, death, or Disability or (ii) by the Salaried Employee within 120 days after the Salaried Employee has knowledge of the occurrence of Good Reason.

Section .02. Timing and Amount of Separation Benefits. If a Salaried Employee’s employment is terminated in circumstances entitling such Salaried Employee to Separation Benefits pursuant to Section 3.01, the Employer shall provide to such Salaried Employee, as soon as administratively practicable following the Date of Termination, a lump sum cash payment as set forth in subsection (a) below, and shall provide to the Salaried Employee the continued benefits as set forth in subsection (b) below and the outplacement services set forth in subsection (c) below. For purposes of determining the benefits set forth in subsections (a) and (b), if the termination of the Salaried Employee’s employment is for Good Reason based upon a reduction of the Salaried Employee’s Annual Salary, opportunity to earn Annual Bonuses, or other compensation or employee benefits, such reduction shall be ignored.

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

(i) the sum of (A) any Annual Salary owed to the Salaried Employee as of the Date of Termination, (B) the product of (1) the Salaried Employee’s Target Annual Bonus and (2) a fraction, the numerator of which is the number of days in such year through the Date of Termination and the denominator of which is 365, and (C) any compensation previously deferred by the Salaried Employee (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid and in full satisfaction of the rights of the Salaried Employee; and

(ii) an amount equal to two times Annual Pay or, with respect to individuals specified by the Board, three times Annual Pay; and

(iii) an amount equal to the excess (without present value discount, as a result of receiving such amount prior to the end of the three-year period following the Date of Termination) of (A) the actuarial equivalent of the benefit under the Pension Plan of Newmont or any successor or replacement qualified defined benefit retirement plan in which the Salaried Employee participates immediately prior to the Change of Control, or under any such plan with more favorable benefits in which the Salaried Employee participates following the Change of Control (the “Retirement Plan”), and the Pension Equalization Plan of Newmont and the Newmont Savings Equalization Plan or other excess or supplemental retirement plans, programs or arrangements of Newmont Mining or any Affiliated

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Entity in which the Salaried Employee participates immediately prior to the Change of Control or under any such plans, programs or arrangements with more favorable benefits in which the Salaried Employee participates following the Change of Control (together, the “SERP”) which the Salaried Employee would receive if the Salaried Employee’s employment continued for three years after the Date of Termination. For purposes of this subsection, the following apply: (1) the Salaried Employee is fully vested in all benefits and (2) the Salaried Employee is treated as having attained three additional years of age under the Retirement Plan and the SERP. The three additional years of age shall be included for purposes of reducing any otherwise applicable actuarial reduction, but not for purposes of reducing the number of years of the Salaried Employee’s life expectancy, over (B) the actuarial equivalent of the Salaried Employee’s actual benefit (paid or payable), if any, under the Retirement Plan and the SERP as of the Date of Termination. The actuarial assumptions used for determining actuarial equivalence in this Section shall be no less favorable to the Salaried Employee than the most favorable of those in effect under the Employer’s Retirement Plan and SERP, as the case may be, immediately prior to the Change of Control or on the Date of Termination.

(b) Employee Benefits. During the three-year period following the Salaried Employee’s Date of Termination, the Salaried Employee and his or her family shall be provided with health, dental, vision, prescription, disability and Employer provided life insurance benefits (insuring the lives of the Salaried Employee and his spouse) as if the Salaried Employee’s employment had not been terminated (provided, that such benefits and the cost to the Salaried Employee shall be no less favorable than under the programs in which the Salaried Employee participated during the 120-day period immediately prior to the Change of Control). If the Salaried Employee becomes reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. To the extent any benefits described in this Section cannot be provided pursuant to the appropriate plan or program maintained for Employees, the Employer shall provide such benefits outside such plan or program at no additional cost (including without limitation tax cost) to the Salaried Employee. The benefits provided pursuant to this Section shall be offered concurrent with COBRA continuation coverage where applicable.

(c) Outplacement Services. The Employer shall, at its sole expense as incurred, provide the Salaried Employee with outplacement services for a position that is commensurate with the position previously held. The scope and provider of the outplacement services shall be consistent with the Employer’s practices during the one-year period immediately preceding the Change of Control.

Section .03. Other Benefits Payable. To the extent not previously paid or provided, the Employer shall timely pay or provide (or cause to be paid or provided) to a Salaried Employee entitled to the Separation Benefits any other amounts or benefits required to be paid or provided to the Salaried Employee or which the Salaried Employee is eligible to receive under any plan,

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program, policy or practice or contract or agreement of the Employer and its Affiliated Entities, but excluding any severance pay or pay in lieu of notice required to be paid to such Salaried Employee under applicable law or any other severance pay plan or policy of the Employer.

Section .04. Certain Additional Payments by the Employer. The additional payment provisions of this Section shall apply except as may be prohibited by law as determined by the Board or its delegate.

(a) Anything in this Plan to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any payment or distribution by Newmont or an Affiliated Employer to or for the benefit of a Salaried Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Plan or otherwise, but determined without regard to any additional payments required under this Section) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Salaried Employee with respect to such excise tax (such excise tax, together with any such interest and penalties, is hereinafter collectively referred to as the “Excise Tax”), then the Salaried Employee shall be entitled to receive an additional payment (a “Gross-Up Payment”). The Gross-Up Payment shall be in an amount such that after payment by the Salaried Employee of all taxes (including any interest or penalties imposed with respect to such taxes) and Excise Tax imposed upon the Gross-Up Payments the Salaried Employee shall retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section, if it shall be determined that the Salaried Employee is entitled to a Gross-Up Payment, but the Payments do not exceed 110% of the greatest amount (the “Safe Harbor Amount”) that could be paid to the Salaried Employee such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to the Salaried Employee and the amounts payable under this Plan shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 3.02(a)(ii), unless an alternative method of reduction is elected by the Salaried Employee. For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under this Plan (and no other Payments) shall be reduced. If the reduction of the amount payable under this Plan would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Plan shall be reduced pursuant to this Section.

(b) Subject to the provisions of Section 3.04(c), all determinations required to be made under this Section, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm selected by the Board or its delegate retained by the Employer (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Employer and the Salaried Employee within a reasonable time after receipt of notice from the Salaried Employee that there has been a Payment, or such earlier time as is requested by the Employer. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Salaried Employee shall appoint another nationally recognized accounting firm to make the determinations required

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hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Employer. Any Gross-Up Payment, as determined pursuant to this Section, shall be paid by the Employer to the Salaried Employee within a reasonable time after the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Employer and the Salaried Employee. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Employer should have been made (“Underpayment”) consistent with the calculations required to be made hereunder. In the event that the Employer exhausts its remedies pursuant to this Section and the Salaried Employee thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Employer to or for the benefit of the Salaried Employee.

(c) The Salaried Employee shall notify the Employer in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Employer of the Gross-Up Payment. Such notification shall be given as soon as practicable after the Salaried Employee is informed in writing of such claim and shall apprise the Employer of the nature of such claim and the date on which such claim is requested to be paid. The Salaried Employee shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to the Employer (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Employer notifies the Salaried Employee in writing prior to the expiration of such period that it desires to contest such claim, the Salaried Employee shall:

(i) give the Employer any information reasonably requested by the Employer relating to such claim;

(ii) take such action in connection with contesting such claim as the Employer shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Employer;

(iii) cooperate with the Employer in good faith in order to effectively contest such claim; and

(iv) permit the Employer to participate in any proceedings relating to such claim. The Employer shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Salaried Employee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section, the Employer shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative

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appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Salaried Employee to pay the tax claimed and sue for a refund or contest the claim in any permissible manner. The Salaried Employee agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Employer shall determine. If the Employer directs the Salaried Employee to pay such claim and sue for a refund, the Employer shall advance the amount of such payment to the Salaried Employee, on an interest-free basis and shall indemnify and hold the Salaried Employee harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance. Any extension of the statute of limitations relating to payment of taxes for the taxable year of the Salaried Employee with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Employer’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Salaried Employee shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority.

(d) If, after the receipt by the Salaried Employee of an amount advanced by the Employer pursuant to this Section, the Salaried Employee becomes entitled to receive any refund with respect to such claim, the Salaried Employee shall (subject to the Employer’s complying with the requirements of Section 3.04(c)) promptly pay to the Employer the amount of such refund (together with any interest paid or credited thereon after taxes as applicable). If, after the receipt by the Salaried Employee of an amount advanced by the Employer pursuant to Section 3.04(c), a determination is made that the Salaried Employee shall not be entitled to any refund with respect to such claim and the Employer does not notify the Salaried Employee in writing of its intent to contest such denial of refund within a reasonable time after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Section .05. Coordination with Governmental Plans. In the event an eligible Salaried Employee qualifies for benefits under both the Plan and another plan or arrangement offered by a governmental entity due to the Salaried Employee’s termination of employment with an Employer or Affiliated Entity, the Salaried Employee shall receive the greater of the benefit provided by the Plan or the benefit provided by the governmental entity, but not both. In the event the benefit provided through the governmental entity’s plan or program is less than the benefit provided under the Plan, such benefit shall offset the amount payable to the Salaried Employee under the Plan.

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TERMINATION OF BENEFITS

Section .01. Termination of Benefits Generally. Benefits for Salaried Employees shall terminate when any of the following occurs:

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

(b) The Salaried Employee submits a fraudulent claim, provides false or misleading information or otherwise attempts to mislead or defraud the Plan, as determined by the Administration Committee or the Board in its sole discretion.

(d) With respect to an individual Salaried Employee, when all benefits the Salaried Employee is eligible to receive are paid or provided.

CONTINUATION OF HEALTH CARE COVERAGE

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

PROTECTION OF MEDICAL PRIVACY

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

COMMITTEES

Section .01. Appointment of Committees. The Board or its delegate shall appoint the Administration Committee and the Appeals Committee (collectively, the “Committees”) who may be, but need not be, officers, directors or employees of Newmont Mining or Affiliated Entities. The members of each Committee shall hold office at the pleasure of the Board and shall serve without compensation.

Section .02. Responsibilities of the Administration Committee. The Administration Committee shall be responsible for the administration, operation and interpretation of the Plan. The Administration Committee shall establish rules from time to time for the transaction of its business. The Administration Committee shall have the exclusive right to interpret the Plan’s

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provisions and to exercise discretion where necessary or appropriate in the interpretation and administration of the Plan and to decide any and all matters arising thereunder or in connection with the administration of the Plan, except those matters reserved for the Appeals Committee. Such decisions, actions and records of the Administration Committee shall be conclusive and binding upon all persons having or claiming to have any right or interest in or under the Plan.

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

Section .03. Responsibilities of the Appeals Committee. The Appeals Committee shall be responsible for the review and determination of benefit claim appeals as described in Article VIII. The Appeals Committee shall establish rules from time to time for the transaction of its business. The Appeals Committee shall have the exclusive right to interpret the Plan’s provisions and to exercise discretion where necessary or appropriate in the determination of benefit claims on appeal. Such decisions, actions and records of the Appeals Committee shall be conclusive and binding upon all persons having or claiming to have any right or interest in or under the Plan.

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

Section .04. Organization of Committees. Each Committee shall adopt such rules as it deems desirable for the conduct of its affairs and for the administration of its duties under the Plan. Each Committee may appoint agents (who need not be members of the particular Committee) to whom it may delegate such powers as it deems appropriate. Each Committee may make its determinations with or without meetings and it may authorize one or more of its members or agents to sign instructions, notices and determinations on its behalf. Any action taken by a Committee shall be taken by a majority of the members attending a meeting of the Committee (provided at least a majority of the Committee members are at such meeting) or by a majority of the members of the Committee executing a written instrument setting forth the action taken.

Section .05. Indemnification of Committee Members. Newmont Mining shall indemnify the members of each Committee against any and all claims, loss, damages, expense (including attorney fees) and liability arising from any action or failure to act, except when the same is judicially determined to be due to the gross negligence or willful misconduct of such member. Such indemnification shall include any Committee members or any individuals delegated authority by a Committee if such individuals are employed by Newmont Mining or an Affiliated Entity. Newmont Mining does not hereby indemnify any entity or person that is not an employee of Newmont Mining or an Affiliated Entity. The indemnification provided hereunder shall continue as to a person who has ceased acting as a director, officer, member, agent or employee of the Employer, and such person’s rights shall inure to the benefit of his heirs and representatives.

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CLAIMS PROCEDURE

Section .01. Claim for Benefits. In order to receive benefits under the Plan, a claimant must submit a claim. An authorized representative may act on behalf of a claimant, and any reference to “claimant” in this Article VIII shall include such an authorized representative.

All claims for benefits must be submitted to the Administration Committee on the forms (or using the method) prescribed by the Administration Committee along with such other documentation as the Administration Committee may reasonably require within the time period established by the Administration Committee.

Section .02. Timing of Benefit Determinations. The Administration Committee, or its delegate, shall review all materials and approve or deny the claim. The review shall be made in accordance with the Plan, and the Administration Committee, or its delegate, shall apply Plan provisions consistently with respect to similarly situated claimants. If the claim is denied, in whole or in part, then written notice of the denial shall be furnished to the claimant within 90 days of the date the claim was initially received. The notice shall set forth the specific reason for the decision, the pertinent provisions of the Plan on which the decision is based, a description of additional information necessary to perfect the claim and why such information is necessary, an explanation of the appeal procedures and applicable time limitations, and a statement of the claimant’s right to bring a civil action under Section 502 of ERISA if the appeal is denied.

If the Administration Committee, or its delegate, determines that an extension is necessary due to special circumstances beyond the Plan’s control, it shall provide a written notice of the extension to the claimant within the initial 90-day period described in this Section. The notice shall state the reason more time is needed, the date by which the Plan expects to render a decision, the unresolved issues that prevent a decision on the claim, the additional information needed to resolve those issues and the standards on which entitlement to a benefit is based. The extension shall be for a reasonable period of time not to exceed 90 days.

Section .03. Notification of Denial of Claim. If the Administration Committee makes an adverse benefit determination with respect to a claim, the Administration Committee shall provide notice to the claimant regarding the determination. The notice may be written or electronic. The Administration Committee’s notice of an adverse benefit determination shall set forth, in a manner calculated to be understood by the claimant:

(a) the specific reasons for the denial;

(b) specific references to pertinent Plan provisions on which the denial is based;

(c) a description of any additional material and information needed for the claimant to perfect the claim and an explanation of why the material or information is needed;

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(d) an explanation of the appeals procedures under the Plan, the time limits applicable to the appeals procedures and a statement of claimant’s right to bring a civil action under ERISA Section 502(a) following an adverse benefit determination on appeal; and

(e) if an internal rule, guideline, protocol or similar criterion was relied upon in making the adverse benefit determination, either the specific rule, guideline, protocol or other similar criterion or a statement that such will be provided free of charge to the claimant upon request.

Section .04. Appeal Procedure. A claimant may appeal an adverse benefit determination to the Appeals Committee in accordance with the procedures set forth in this Section 8.04.

(a) Appeal of a Denied Claim. A claimant may initiate an appeal by submitting a written request for review to the Appeals Committee within 60 days after the denial is received. The claimant may send the Appeals Committee a written statement of the issues and any other documents in support of the claim. The claimant shall be entitled to copy and review all relevant comments, documents, records and other information free of charge.

(b) Scope of Appeals Review. The appeal shall be conducted by the Appeals Committee. The Appeals Committee shall take into account all comments, documents, records and other information submitted by the claimant relating to the claim, without regard to whether such information was submitted or considered in the initial determination. The review shall be made in accordance with the Plan document, and the Appeals Committee shall apply the Plan provisions consistently with respect to similarly situated claimants.

The claimant shall be entitled to review and receive, free of charge, copies of all documents, records and other information relevant to the claim for benefits. The Appeals Committee shall examine all facts, comments, documents, records and other information considered in the initial denial of benefits or subsequently submitted to the Appeals Committee and make a final determination as to whether the denial of benefits is justified under the circumstances. The final examination and review shall not afford deference to the Administration Committee’s initial benefit determination.

Section ..05. Timing of Decision on Appeal. The Appeals Committee shall render its decision within 60 days after receipt of the appeal and shall send the claimant a written notice of its decision. If the Appeals Committee determines that there are special circumstances requiring an extension of time for review and processing of the appeal, the Appeals Committee shall send the claimant a written notice of the extension which gives the reasons for the delay and the date by which the Plan expects to render the determination on appeal. The notice shall be given before the expiration of the 60-day period described above. The extension shall be for a reasonable period of time not to exceed 60 days.

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Section .06. Notification of Decision on Appeal. The Appeals Committee shall provide a claimant with written or electronic notification of its decision on review. If the appeal is denied, the Appeals Committee’s notice of its decision shall set forth, in a manner calculated to be understood by the claimant:

(a) the specific reasons for the denial;

(b) specific references to Plan provisions on which the denial is based;

(c) a statement that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records and other information relevant to the claimant’s claim for benefits;

(d) a statement of the claimant’s right to bring a civil action under ERISA Section 502(a) following an adverse benefit determination on appeal; and

Section .07. Legal Actions. A claimant must exhaust his or her administrative remedies under the Plan prior to bringing any legal action with respect to a claim for benefits.

Section .08. Discretion of Administration Committee and Appeals Committee. The Administration Committee and the Appeals Committee shall have full discretionary authority to consider claims and appeals filed under the Plan and to determine eligibility, status and rights of all individuals under the Plan and to construe any and all terms of the Plan.

MISCELLANEOUS

Section .01. Full Settlement. The Employer’s obligation to make the payments provided for under this Plan and otherwise to perform its obligations hereunder shall not be affected by any setoff, counterclaim, recoupment, defense or other claim, right or action which the Employer may have against a Salaried Employee or others. In no event shall a Salaried Employee be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to the Salaried Employee under any of the provisions of this Plan and such amounts shall not be reduced whether or not the Salaried Employee obtains other employment. The Employer agrees to pay, to the full extent permitted by law, all legal fees and expenses which a Salaried Employee may reasonably incur as a result of any contest by the Employer, the Salaried Employee or others of the validity or enforceability of, or liability under, any provision of this Plan or any guarantee of performance thereof (including as a result of any contest by the Salaried Employee about the amount of any payment pursuant to this Plan), plus in each case reasonable interest on any delayed payment. Reimbursement shall be made by the Employer to the Salaried Employee only if the Salaried Employee prevails in connection with such dispute. Such reimbursement shall be made as soon as practicable following the resolution of such contest or dispute (whether or not appealed).

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Section .02. Confidential Information. Each Salaried Employee shall hold in a fiduciary capacity for the benefit of the Employer all secret or confidential information, knowledge or data relating to the Employer or any of its Affiliated Entities, and their respective businesses, which shall have been obtained by the Salaried Employee during the Salaried Employee’s employment by the Employer or any of its Affiliated Entities and which shall not be or become public knowledge (other than by acts by the Salaried Employee or representatives of the Salaried Employee in violation of this Plan). After termination of a Salaried Employee’s employment with the Employer, the Salaried Employee shall not, without the prior written consent of the Employer or as may otherwise be required by law or legal process, communicate or divulge any such information, knowledge or data to anyone other than the Employer and those designated by it. In no event shall an asserted violation of the provisions of this Section constitute a basis for deferring or withholding any amounts otherwise payable under this Plan.

Section .03. Unfunded Plan Status. This Plan is intended to be an unfunded plan within the meaning of ERISA. All payments pursuant to the Plan shall be made from the general funds of the Employer. No Salaried Employee or other person shall have under any circumstances any interest in any particular property or assets of the Employer as a result of participating in the Plan. Notwithstanding the foregoing, the Employer may (but shall not be obligated to) create one or more trusts, the assets of which are subject to the claims of the Employer’s creditors, to assist it in accumulating funds to pay its obligations under the Plan.

Section .04. Employment Status. This Plan does not constitute a contract of employment or impose on the Salaried Employee or the Salaried Employee’s Employer any obligation for the Salaried Employee to remain an Employee or change the status of the Salaried Employee’s employment or the policies of the Employer regarding termination of employment.

Section .05. Validity and Severability. The invalidity or unenforceability of any provision of the Plan shall not affect the validity or enforceability of any other provision of the Plan, which shall remain in full force and effect, and any prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

Section .06. Governing Law. The validity, interpretation, construction and performance of the Plan shall in all respects be governed by the laws of Colorado, without reference to principles of conflict of law, except to the extent preempted by federal law.

Section .07. Right of Offset. To the extent permitted by applicable law, the Employer may, in its sole discretion, apply any payments otherwise due and payable under this Plan against any Employee or terminated Employee loans outstanding to the Employer or other debts of the Employee or terminated Employee to the Employer. By accepting payments under this Plan, the Employee shall consent to the reduction of any compensation paid to the Employee by the Employer to the extent the Employee receives an overpayment from the Plan.

Section .08. Conformance With Applicable Laws. Notwithstanding anything contained herein to the contrary, this Plan shall be administered and operated in accordance with

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any applicable laws and regulations including but not limited to laws affecting the timing of payments to Salaried Employees. The Board or its delegate reserves the right to amend this Plan at any time in order for this Plan to comply with any such laws and regulations.

Section .09. Payments Due Minors or Incapacitated Persons. If any person entitled to a payment under this Plan is a minor, or if the Administration Committee or its delegate determines that any such person is incapacitated by reason of physical or mental disability, whether or not legally adjudicated as an incompetent, the Administration Committee or its delegate shall have the power to cause the payment becoming due to such person to be made to another for his benefit, without responsibility of the Administration Committee or its delegate, the Employer or any other person or entity to see to the application of such payment. Payments made pursuant to such power shall operate as a complete discharge of the Administration Committee, this Plan and the Employer.

DURATION, AMENDMENT AND TERMINATION

Section .01. Duration. Unless terminated by the Board, the Plan shall renew each January 1 and remain effective for the ensuing year. If a Change of Control occurs while this Plan is in effect, this Plan shall continue in full force and effect following such Change of Control and shall not terminate or expire until after all Salaried Employees who become entitled to any payments hereunder shall have received such payments in full.

Section .02. Amendment or Termination. The Board may amend or terminate this Plan, provided that this Plan may not be terminated or amended in a manner adverse to Salaried Employees (including modifying the eligibility of Employees to participate in the Plan) or during the three-year period following a Change of Control.

Section .03. Procedure for Extension, Amendment or Termination. Any extension, amendment or termination of this Plan by the Board in accordance with the foregoing shall be made by action of the Board in accordance with Newmont Mining’s charter and bylaws and applicable law.

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Newmont USA Limited, by its duly authorized officer, has executed the Plan on the date written below.


Dated:	NEWMONT USA LIMITED, Plan Sponsor

	By:	/s/ Britt D. Banks
	Name:	Britt D. Banks
	Title:	Vice President and General Counsel

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