1
Exhibit 10
AGREEMENT dated and entered into on September 8, 1998 between
Newmont Gold Company, a Delaware corporation ("Newmont") and Xxxxxxxx X.
Xxxxxxxxx ("Executive").
W I T N E S S E T H
The parties agree as follows:
1. This Agreement is effective as of August 6, 1998
("Effective Date").
2. In addition to any other pension benefits, qualified and
non-qualified, to be provided Executive other than pursuant to this Agreement,
Executive shall receive a non-qualified retirement benefit, payable within 30
days of Executive's termination of employment (deemed to have occurred on
Executive's last day worked), equal to the lump sum actuarial equivalent value
(determined in the same manner as actuarial equivalent lump sum payments are
determined under Newmont's Pension Equalization Plan) of Executive's accrued
benefit under Newmont's Pension Plan and Pension Equalization Plan determined as
of the date of Executive's termination of employment; provided, however, that
such accrued benefit shall be determined under the assumption that Executive's
credited service is equal to 1.5 times his actual years of credited service
under such Pension Plan and, provided, further, that the amount of such accrued
benefit shall be reduced by Executive's vested accrued benefit as determined
under Newmont's Pension Plan and Pension Equalization Plan and Executive's
accrued benefit payable pursuant to this paragraph 2 shall be nonforfeitable,
except as provided herein.
3. Notwithstanding any other provisions of this Agreement:
(i) Newmont may terminate this Agreement immediately and
without prior notice to Executive for "Cause" as defined below. If
Executive is terminated for Cause, he forfeits all benefits provided in
this Agreement.
Cause shall be limited to the occurrence of any of the following
events:
(a) Executive has misappropriated any funds or property
of Newmont (including from any of its subsidiaries or
affiliates);
(b) Executive has been convicted of a felony;
(c) Executive has obtained personal profit from any
Newmont (including from any of its subsidiaries or
affiliates) transaction with a third party without
the prior approval of such profit by the Board; or
(d) Executive has obtained personal profit from the sale
of Newmont's (including from any of its subsidiaries
or affiliates) trade secrets.
If Executive disputes the commission by him of any act or acts
asserted by Newmont to constitute Cause, either Newmont or Executive
may initiate binding arbitration proceedings in accordance with
paragraph 9 of this Agreement to resolve
24
2
whether Executive has committed an act or acts constituting Cause. If
Executive does not dispute any termination for Cause within 60 days
after such termination, Executive shall be conclusively presumed to
have been terminated for Cause.
(ii) If Executive's employment is terminated by Newmont
without Cause, all rights created pursuant to the non-qualified
retirement benefit provided under paragraph 2 shall cease to accrue and
such benefit shall be payable as provided under paragraph 2.
(iii) If Executive voluntarily resigns (including resignation
due to Executive's permanent disability) from Newmont, all rights
created pursuant to the non-qualified retirement benefit provided under
paragraph 2 shall cease to accrue and such benefit shall be payable as
provided under paragraph 2.
(iv) If Executive dies prior to termination of employment, all
rights created pursuant to the non-qualified retirement benefit
provided under paragraph 2 shall cease to accrue and such benefit shall
be payable to Executive's surviving spouse in an amount and at such
time consistent with paragraph 2, provided, however, that such amount
shall be adjusted in the same manner as surviving spouse benefits are
determined under Newmont's Pension Plan and Pension Equalization Plan.
4. If Newmont or Newmont Mining Corporation shall at any time
be merged or consolidated into or with any other corporation, or if
substantially all of the assets of Newmont or Newmont Mining Corporation are
transferred to another corporation, the provisions of this Agreement shall be
binding upon and inure to the benefit of the corporation resulting from such
merger or consolidation or acquiring such assets, and this paragraph 4 shall
apply in the event of any subsequent merger or consolidation or transfer of
assets.
5. This Agreement constitutes the entire agreement of the
parties with respect to the subject matter set forth herein, and all prior
negotiations or representations are merged herein or replaced hereby. It shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective successors, assigns, heirs and legal representatives, but neither
this Agreement nor any rights hereunder shall be assignable by either party
without the other party's written consent. No change or modification of this
Agreement shall be effective except if made in writing signed by the party to be
bound.
6. If any of the provisions of this Agreement should be deemed
unenforceable, the remaining provisions shall remain in full force and effect.
7. The validity, interpretation and effect of this Agreement
shall be governed by the law of the State of Colorado.
8. Any notice required or permitted to be given hereunder
shall be in writing and may be given by mail - prepaid and certified return
receipt requested - addressed:
(i) if to Newmont, at its principal office, attention:
Corporate Secretary;
(ii) if to Executive, at his home mailing address on file
with Newmont;
25
3
or to such other address as the party to which such notice is to be given shall
have notified (in accordance with the provisions of this paragraph 8) as its
substitute address for the purposes of this Agreement; any notice given as
aforesaid shall be deemed conclusively to have been received on the tenth
business day after such mailing.
9. If any dispute arises under paragraph 3 of this Agreement
or as to whether an amount is payable by Newmont to Executive, the amount or
timing thereof or any interpretation of the provisions of this Agreement or the
arrangements referred to herein, the parties agree that such dispute shall be
resolved by binding arbitration proceedings initiated by either party in
accordance with the rules of the American Arbitration Association and that the
results of such proceedings shall be conclusive on both parties and shall not be
subject to judicial review.
Newmont and Executive acknowledge by execution of this
Agreement that they have expressly relinquished any and all rights to judicial
review of any dispute or any determination by the arbitrator. Newmont also
agrees to pay the cost of any arbitration or legal proceedings initiated by
either party under this Agreement, including Executive's legal fees, and that
Executive's expenses shall be paid to him upon evidence that such expenses have
been incurred without awaiting the outcome of any such proceedings; provided,
however, Executive shall have the obligation to reimburse Newmont for his
expenses advanced by Newmont if it is finally determined by the arbitrator that
Executive's position was frivolous and without merit.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
EXECUTIVE NEWMONT GOLD COMPANY
/s/ Xxxxxxxx X. Xxxxxxxxx By /s/ Xxxxxx X. Xxxxxx
--------------------------------- ------------------------------
Xxxxxxxx X. Xxxxxxxxx Xxxxxx X. Xxxxxx
Chairman, President and
Chief Executive Officer
September 8 , 1998 September 11 , 1998
-------------------- ------------------------
26
