Exhibit 10.4





Exhibit 10.4




NEWMONT

SENIOR EXECUTIVE COMPENSATION PROGRAM




(As Amended and Restated Effective January 1, 2011)




 


 









 







NEWMONT

SENIOR EXECUTIVE COMPENSATION PROGRAM




(Effective as of January 1, 2011)




PURPOSE




This Senior Executive Compensation Program includes the Financial Performance Bonus program,
Performance Leveraged Stock Bonus program, Strategic Objectives Bonus and AICP Corporate
Performance Bonus for the eligible Employees. The purpose of the Financial Performance Bonus
program, Performance Leveraged Stock Bonus program and the ACIP Corporate Performance Bonus is to
provide eligible Employees a direct interest in the success of the operations of Newmont Mining.
The purpose of the Strategic Objectives Bonus is to provide eligible Employees additional incentive
to meet strategic objectives set by the Compensation Committee. The eligible Employees will be
rewarded in accordance with the terms and conditions described below.



I. DEFINITIONS




The capitalized terms used in this compensation program shall have the same meaning as the
capitalized terms in the Annual Incentive Compensation Program (“AICP”), unless otherwise defined
or stated herein. The following terms used in this compensation program shall have the meanings
set forth below.



1.1 “AICP Corporate Performance Bonus” means the bonus payable pursuant to Section 5.1 (or
portion thereof as provided in Section 5.2).



1.2 “Change of Control Price” means the price per share of Common Stock offered to a holder
thereof in conjunction with any transaction resulting in a Change of Control on a fully-diluted
basis (as determined by the Compensation Committee as constituted before the Change of Control, if
any part of the offered price is payable other than in cash), or, in the case of a Change of
Control occurring solely by reason of a change in the composition of the Board, the highest Fair
Market Value of a share of Common Stock on any of the 30 trading days immediately preceding the
date on which such Change of Control occurs.




1.3 “Common Stock” means the $1.60 par value common stock of Newmont Mining.



1.4 “Employee Target AICP Corporate Performance Bonus” means the target bonus for eligible
Employees as set forth in Appendix B.



1.5 “Extended Performance Period” means three calendar years over which the Compensation
Committee will calculate and determine the Performance Leveraged Stock Bonus.



1.6 “Fair Market Value” has the meaning given such term in the 2005 Stock Incentive Plan.


 












 





1.7 “Financial Performance Bonus” means the bonus payable to an eligible Employee in the form
of Performance Stock under this compensation program with respect to a Performance Period (or
portion thereof as provided in Section 3.2), which shall be determined by multiplying the eligible
Employee’s Target Financial Performance Bonus times a weighted average of the annual Aggregate
Payout Percentage calculated in accordance with the Annual Incentive Compensation Program, for
three consecutive Performance Periods comprised of 20% weighting for the first year (two years ago)
of AICP bonus, 30% weighting for the second year (one year ago) of AICP Corporate Performance
bonus, and 50% weighting for the third year (the current year) of AICP Corporate Performance bonus.
The Performance Stock awarded as a Financial Performance Bonus shall have terms and conditions,
and shall be subject to such restrictions as defined by the Compensation Committee.



1.8 “Performance Leveraged Stock Bonus” means the bonus payable to an eligible Employee in the
form of Common Stock under this compensation program with respect to an Extended Performance Period
(or portion thereof as provided in Section 4.4) and is calculated as described in Section 4.2.



1.9 “Performance Period” means the calendar year over which the Compensation Committee will
calculate and determine the Financial Performance Bonus, AICP Corporate Performance Bonus and
Strategic Objectives Bonus.



1.10 “Performance Stock” means the right to receive from Newmont Mining Common Stock or
restricted stock units under terms and conditions defined in a restricted stock unit or other award
agreement, as determined by the Compensation Committee.



1.11 “Relative Total Shareholder Return” means Newmont Mining’s total shareholder return,
defined as the change in the closing price of a share of Common Stock, with dividends reinvested,
over the Extended Performance Period, as compared to the total shareholder return, with dividends
reinvested, of an index of peer companies selected and determined by the Compensation Committee.
The Committee retains authority to make adjustments for extraordinary events affecting the
calculations.



1.12 “Retirement” means retirement as defined in the Pension Plan of Newmont Mining (or any
successor plan), regardless of the relevant Employee’s participation in the Pension Plan of Newmont
Mining (or any successor plan).



1.13 “Strategic Objectives Bonus” means the cash bonus payable to an eligible Employee based
on the individual contribution of such eligible Employee to achievement of the Corporation’s
strategic objectives during the Performance Period, as set forth in section 6.1 (or portion thereof
as provided in section 6.2).



1.14 “Target Financial Performance Bonus” means the number of shares of Common Stock
equivalent to the percentage of base salary (for final calculation purposes, base salary shall be
Bonus Eligible Earnings as defined in the AICP) set by the Compensation Committee which is set
forth in Appendix A, using the average closing price of Common Stock for the month of December of
the calendar year prior to the Performance Period.


 


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1.15 “Target Performance Leveraged Stock Bonus” means the number of shares of Common Stock
equivalent to the percentage of base salary (for final calculation purposes, base salary shall be
Bonus Eligible Earnings as defined in the AICP for the first year of the Extended Performance
Period) set by the Compensation Committee which is set forth in Appendix D, using the average
closing price of Common Stock for the fourth quarter of the calendar year immediately prior to the
Extended Performance Period.



1.16 “Terminated Eligible Employee” for purposes of the Financial Performance Bonus and the
Performance Leveraged Stock Bonus means an executive grade level Employee of a Participating
Employer at grade level E-4 or above during the relevant Performance Period, or Extended
Performance Period for purposes of the Performance Leveraged Stock Bonus program, who terminates
employment with Newmont Mining and/or a Participating Employer during the relevant Performance
Period, or Extended Performance Period for purposes of the Performance Leveraged Stock Bonus
program, on account of death, Retirement or Disability, or for purposes of the Performance
Leveraged Stock Bonus, severance as provided in Section 4.4(a). “Terminated Eligible Employee” for
purposes of the AICP Corporate Performance Bonus and the Strategic Objectives Bonus shall have the
same meaning as in the AICP.



1.17 “2005 Stock Incentive Plan” means the Newmont Mining Corporation 2005 Stock Incentive
Plan (or any successor plan), as amended from time to time.



II. ELIGIBILITY




All executive grade level Employees of a Participating Employer at grade level E-4 or above,
are eligible to receive a Financial Performance Bonus, Performance Leveraged Stock Bonus, AICP
Corporate Performance Bonus and Strategic Objectives Bonus under this compensation program,
provided (i) they are on the payroll of a Participating Employer as of the last day of the relevant
Performance Period or Extended Performance Period for the Performance Leveraged Stock Bonus, and at
the time the award is granted, or (ii) they are a Terminated Eligible Employee with respect to such
Performance Period, or Extended Performance Period for the Performance Leveraged Stock Bonus.
Eligible Employees who are on short-term disability under the Short-Term Disability Plan of
Newmont, or a successor plan, or not working because of a work-related injury as of the last day of
the Performance Period, or Extended Performance Period for the Performance Leveraged Stock Bonus,
but are still on the payroll of a Participating Employer shall be eligible to receive a Financial
Performance Bonus, Performance Leveraged Stock Bonus, AICP Corporate Performance Bonus and
Strategic Objectives Bonus. Notwithstanding the foregoing provisions of this Section II, the
Compensation Committee may, prior to the end of any Performance Period, or Extended Performance
Period for the Performance Leveraged Stock Bonus, exclude from or include in eligibility for
participation under this compensation program with respect to such Performance Period, or Extended
Performance Period for the Performance Leveraged Stock Bonus, any executive grade level Employee of
a Participating Employer. If an Employee of a Participating Employer is eligible to participate in
this program, such Employee is not eligible to participate in the Annual Incentive Compensation
Program or the Employee Performance Incentive Compensation Program.


 


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III. FINANCIAL PERFORMANCE BONUS




3.1 Determination of Financial Performance Bonus—In General. The Financial
Performance Bonus shall be calculated as soon as reasonably practicable after the Compensation
Committee determines the Aggregate Payout Percentage. Following such determination, payment of the
Financial Performance Bonus shall be made to eligible Employees as soon as reasonably practicable,
in accordance with Section 3.3 below.



3.2 Separation of Employment and Payment of Financial Performance Bonus. Unless
otherwise stated in this section 3.2, an eligible Employee shall not be entitled to payment of a
Financial Performance Bonus on or after any separation of employment, voluntary or involuntary. In
the event an eligible Employee separates employment from a Participating Employer as a result of
death, Disability or Retirement prior to payment of the Financial Performance Bonus, such eligible
Employee shall be a Terminated Eligible Employee and shall receive a Financial Performance Bonus
equal to such Terminated Eligible Employee’s Target Financial Performance Bonus, pro-rated for the
time of employment with a Participating Employer during the Performance Period, upon separation of
employment.



3.3 Form of Payment. The amount of Financial Performance Bonus payable under this
compensation program shall be paid in Performance Stock (payable in whole shares only rounded down
to the nearest share). The Performance Stock shall be subject to the restrictions set forth in
Section 3.4 below.




3.4 Restrictions on Performance Stock.



(a) Newmont Mining shall issue Performance Stock to eligible Employees for one-third of the
Financial Performance Bonus without any restrictions as soon as practicable following the end of
the Performance Period in the form of Common Stock. Newmont Mining shall issue Performance Stock,
in the form of restricted stock units for the remainder of the Financial Performance Bonus and such
restricted stock units shall have a two-year vesting period, with one-half of the Performance Stock
in the form of restricted stock units vesting each year on the anniversary of the date of grant.



(b) Shares of Performance Stock issued hereunder in the form of restricted stock units as part
of a Financial Performance Bonus shall not be subject to transfer by the eligible Employee. Shares
of Common Stock issued to an eligible Employee upon vesting of such restricted stock units may be
freely transferred by the eligible Employee subject to all applicable laws, regulations and Newmont
Mining policies.



3.5 Timing of Payment. Except as provided in section 3.2 above, payment of the Financial
Performance Bonus will be made no later than the 15th day of the third month following
the Performance Period to which such Financial Performance Bonus relates.



IV. PERFORMANCE LEVERAGED STOCK BONUS




4.1 Determination of Performance Leveraged Stock—In General. The Performance
Leveraged Stock Bonus shall be calculated as soon as reasonably practicable after the
Compensation Committee determines the Performance Leveraged Stock Bonus Payout Factor as
described in section 4.3 below. Following such determination, payment of the Performance Leveraged
Stock Bonus shall be made to eligible Employees as soon as reasonably practicable, in accordance
with Section 4.5 below.


 


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4.2 Calculation of Performance Leveraged Stock Bonus. The Performance Leveraged
Stock Bonus equals the Target Performance Leveraged Stock Bonus times the Performance Leveraged
Stock Bonus Payout Factor.



4.3 Calculation of the Performance Leveraged Stock Bonus Payout Factor. The
Performance Leveraged Stock Bonus Payout Factor will be the sum of the Market Payout Factor and the
TSR Payout Factor:




(a) “Market Payout Factor” means a percentage calculated as follows: 100 times the
quotient of (i) the average closing price of Common Stock for the fourth quarter of the last
calendar year of the Extended Performance Period; divided by (ii) the average closing price
of Common Stock for the fourth quarter of the calendar year prior to the Extended
Performance Period, as adjusted for stock splits or similar reorganizations. The maximum
Market Payout Factor shall be 150% and if the Market Payout Factor, calculated as described
in the preceding sentence, is below 50%, the Market Payout Factor shall be 50%.




(b) “TSR Payout Factor” means a percentage calculated as follows: two times the number
of percentage points that the Relative Total Shareholder Return is above the 50th
percentile, to a maximum of 50%.



4.4 Separation of Employment and Payment of Performance Leveraged Stock Bonus. Unless
otherwise stated in this section 4.4, an eligible Employee shall not be entitled to payment of a
Performance Leveraged Stock Bonus on or after any separation of employment, voluntary or
involuntary.




(a) In the event an eligible Employee separates employment from a Participating
Employer and is entitled to severance benefits of any kind, including but not limited to
benefits under the Severance Plan of Newmont (or any successor plan) or redundancy benefits,
prior to payment of the Performance Leveraged Stock Bonus and prior to the expiration of the
first year of any Extended Performance Period, such eligible Employee is not entitled to
payment of the Performance Leveraged Stock Bonus in any amount for that Extended Performance
Period. In the event an eligible Employee separates employment from a Participating
Employer and is entitled to severance benefits of any kind, including but not limited to
benefits under the Severance Plan of Newmont (or any successor plan) or redundancy benefits,
prior to payment of the Performance Leveraged Stock Bonus and after expiration of the first
year of any Extended Performance Period, such eligible Employee is a Terminated Eligible
Employee and shall receive a Performance Leveraged Stock Bonus at the lesser of his or her
Target Performance Leveraged Stock Bonus or the actual Performance Leveraged Stock Bonus
otherwise payable, pro-rated based on the time he or she was actually employed by a
Participating Employer during the Extended Performance Period and paid following the
expiration of the Extended Performance Period.


 


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(b) In the event an eligible Employee separates employment from a Participating
Employer as a result of Retirement prior to payment of the Performance Leveraged Stock
Bonus, such eligible Employee is a Terminated Eligible Employee and shall receive a
Performance Leveraged Stock Bonus at actual payout amount in the form of Common Stock,
following expiration of the Extended Performance Period, pro-rated based on the time he or
she was actually employed by a Participating Employer during the Extended Performance
Period.




(c) In the event an eligible Employee separates employment from a Participating
Employer as a result of death or Disability as defined in the Long-Term Disability Plan of
Newmont (or any successor plan), regardless of the Employee’s participation in the Long-Term
Disability Plan of Newmont (or any successor plan), prior to payment of the Performance
Leveraged Stock Bonus, such eligible Employee is a Terminated Eligible Employee and shall
receive upon separation of employment a Performance Leveraged Stock Bonus equal to his or
her Target Performance Leveraged Stock Bonus, pro-rated based on the time he or she was
actually employed by a Participating Employer during the Extended Performance Period.



4.5 Form of Payment. The amount of Performance Leveraged Stock Bonus payable under
this compensation program shall be paid in Common Stock (payable in whole shares only rounded down
to the nearest share).



4.6 Timing of Payment. Except as otherwise provided in section 4.4(c) above, payment
of the Performance Leveraged Stock Bonus will be made as soon as reasonably practicable during the
calendar year following the Extended Performance Period to which such Performance Leveraged Stock
Bonus relates.



V. AICP CORPORATE PERFORMANCE BONUS




5.1 Determination of AICP Corporate Performance Bonus—In General. For all
participants in this program, with the exception of Regional Senior Vice Presidents at operating
sites, the AICP Corporate Performance Bonus shall be determined and paid in conformance with the
determination and payment of the Corporate Performance Bonus in the AICP, utilizing the Employee
Target AICP Corporate Performance Bonus attached in Appendix B, rather than the Target Performance
Level attached to the AICP. For all Regional Senior Vice Presidents at operating sites the AICP
Corporate Performance Bonus shall be based upon the AICP and the applicable regional bonus plan.
Twenty-five percent of the Regional Senior Vice Presidents’ AICP Corporate Performance Bonus shall
be determined and paid in conformance with the determination and payment of the Corporate
Performance Bonus in the AICP, utilizing the Employee Target AICP Corporate Performance Bonus
attached in Appendix B, rather than the Target Performance Level attached to the AICP.
Seventy-five percent of the Regional Senior Vice Presidents’ AICP Corporate Performance Bonus shall
be determined and paid in
conformance with the applicable regional bonus plan, utilizing the Employee Target AICP
Corporate Performance Bonus attached in Appendix B, rather than the Target Performance Level
attached to the AICP.


 


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5.2 Separation of Employment and Payment of AICP Corporate Performance Bonus. In the
event an eligible Employee separates employment from a Participating Employer and is a Terminated
Eligible Employee, the AICP Corporate Performance Bonus shall be paid in accordance with the
Terminated Eligible Employee provisions of the Corporate Performance Bonus provisions of the AICP.
If an eligible Employee is not a Terminated Eligible Employee, such eligible Employee shall not be
entitled to payment of an AICP Corporate Performance Bonus on or after any separation of
employment, voluntary or involuntary.



VI. STRATEGIC OBJECTIVES BONUS




6.1 Determination of Strategic Objectives Bonus—In General. At the end of each
Performance Period, the Compensation Committee will evaluate each eligible Employee’s performance
against relevant strategic objectives and award a Strategic Objectives Bonus, up to the maximum
amounts listed in Appendix C. The Compensation Committee will seek the input of the Chief Executive
Officer on the Strategic Objectives Bonuses to be awarded to other eligible Employees. Following
such determination, payment of the Strategic Objectives Bonus shall be made to eligible Employees
as soon as reasonably practicable following the end of the applicable Performance Period, provided
that such payment shall be made no later than the 15th day of the third month following
the Performance Period to which such Strategic Objectives Bonus relates.



6.2 Separation of Employment and Payment of Strategic Objectives Bonus. In the event
an eligible Employee separates employment from a Participating Employer and is a Terminated
Eligible Employee, the Strategic Objectives Bonus shall be paid at 50% of the maximum level shown
on Appendix C, pro-rated for the time of employment during the Performance Period, and shall be
paid as soon as practicable. If an eligible Employee is not a Terminated Eligible Employee,
eligible Employee shall not be entitled to payment of a Strategic Objectives Bonus on or after any
separation of employment, voluntary or involuntary.



VII. CHANGE OF CONTROL




7.1 AICP Corporate Performance Bonus and Strategic Objectives Bonus. In the event of
a Change of Control (as defined in the AICP), each eligible Employee, excluding any Terminated
Eligible Employee who terminated prior to the Change of Control, shall become entitled to the
payment of an AICP Corporate Performance Bonus, in accordance with the provisions of the Corporate
Performance Bonus provisions of the AICP and 50% of the maximum Strategic Objectives Bonus,
pro-rated for partial service during any Performance Period, payable within 5 days following the
date of such Change of Control.



7.2 Financial Performance Bonus. In the event of a Change of Control (as defined in
the 2005 Stock Incentive Plan), each eligible Employee’s outstanding but not yet vested or fully
vested Financial Performance Bonuses, granted for performance in a year prior to the Performance
Period in which the Change of Control occurs, shall be subject to Section 16(c) of the 2005 Stock
Incentive Plan.


 


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7.3 Performance Leveraged Stock Bonus. In the event of a Change of Control (as defined
in the AICP), each eligible Employee or a Terminated Eligible Employee who terminated employment on
account of Retirement (all other Terminated Eligible Employees who terminated employment prior to
the Change of Control shall be excluded), shall become entitled to the payment of a Performance
Leveraged Stock Bonus for an Extended Performance Period that has elapsed at least one year. The
Performance Leveraged Stock Bonus shall be calculated in the manner stated in section 4.2 above,
with the exception that (i) the Extended Performance Period shall be deemed to end on the date of
the Change of Control, (ii) the Change of Control Price shall be substituted for the average
closing price of Common Stock for the fourth quarter of the last calendar year of the Extended
Performance Period for purposes of section 4.3(a)(i) above, and (iii) the TSR Payout Factor will be
based on Relative Total Shareholder Return utilizing the Change of Control Price as the final
closing price of a share of Common Stock. The Performance Leveraged Stock Bonus shall be paid out
as follows: (A) the percentage of the Performance Leveraged Stock Bonus equal to the percentage of
the Extended Performance Period that elapsed up to the Change of Control shall be paid in a number
of shares of common stock of the acquiring or resulting corporation or any parent or subsidiary
thereof or that may be issuable by another corporation that is a party to the transaction resulting
in such Change of Control received in such transaction by holders of Common Stock (such common
stock, “Acquirer Stock”) equal to (x) the number of shares of Acquirer Stock received by
such a holder for each share of Common Stock held by such holder in such transaction multiplied by
(y) the number of shares of Common Stock subject to such percentage of the Performance Leveraged
Stock Bonus, or (B) if Acquirer Stock is not issued in connection with such transaction, cash in an
amount equal to the Change of Control Price multiplied by the number of shares of Common Stock
subject to such percentage of the Performance Leveraged Stock Bonus, within 5 days following the
date of the Change of Control (provided, however, that if such Change of Control does not
constitute a change in the ownership or effective control of Newmont Mining or of a substantial
portion of the assets of Newmont Mining, pursuant to Treasury Regulations Section 1.409A-3(i)(5) (a
“409A CoC”), such percentage of the Performance Leveraged Stock Bonus shall be so paid when the
Performance Leveraged Stock Bonus would otherwise have been paid in accordance with Article IV),
and b) the percentage of the Performance Leveraged Stock Bonus equal to the percentage of the
Extended Performance Period that did not elapse prior to the Change of Control shall be paid in the
form of (A) restricted stock units covering a number of shares of Acquirer Stock equal to
(x) the number of shares of Acquirer Stock received by a holder of Common Stock for each share of
Common Stock held by such holder in such transaction multiplied by (y) the number of shares of
Common Stock subject to such percentage of the Performance Leveraged Stock Bonus, that will have a
vesting period equal to the Extended Performance Period otherwise remaining as of the date of the
Change of Control, or (B) if Acquirer Stock is not issued in connection with such
transaction, a deferred compensation arrangement with a balance initially equal to the Change of
Control Price multiplied by the number of shares of Common Stock subject to such percentage of the
Performance Leveraged Stock Bonus, that will have a vesting period equal to the Extended
Performance Period otherwise
remaining as of the date of the Change of Control and a value from time to time as if such initial
balance were invested in such deemed investment as the Compensation Committee as constituted before
the Change of Control shall determine in its discretion. The portion of the Performance Leveraged
Stock Bonus described in clause (b) of the preceding sentence shall vest upon any termination of
employment of the eligible Employee with a Participating Employer prior to the expiration of the
vesting period, with the exception of voluntary termination or termination for Cause, as defined in
Newmont Mining’s Executive Change of Control Plan. Such portion shall be paid in cash within 5
days following vesting; provided, however, that if such Change of Control does not
constitute a 409A CoC, such portion, to the extent vested in accordance with this sentence, shall
be so paid when they would otherwise have been paid in accordance with Article IV.


 


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VIII. GENERAL PROVISIONS




8.1 Administration. This compensation program shall be administered by the
Compensation Committee or its delegee. All actions by Newmont Mining under this program shall be
taken by the Compensation Committee or its delegee. The Compensation Committee shall interpret the
provisions of this program in its full and absolute discretion. All determinations and actions of
the Compensation Committee with respect to this program shall be taken or made in its full and
absolute discretion in accordance with the terms of this program and shall be final, binding and
conclusive on all persons. 



8.2 Plan Unfunded. This compensation program shall be unfunded and no trust or other
funding mechanism shall be established for this program. All benefits to be paid pursuant to this
program shall be paid by Newmont Mining or another Participating Employer from its respective
general assets, and an eligible Employee or Terminated Eligible Employee (or his heir or devisee)
shall not have any greater rights than a general, unsecured creditor against Newmont Mining or
another Participating Employer, as applicable, for any amounts payable hereunder.



8.3 Amount Payable Upon Death of Employee. If an eligible Employee who is entitled to
payment hereunder dies after becoming eligible for payment but before receiving full payment of the
amount due, or if an eligible Employee dies and becomes a Terminated Eligible Employee, all amounts
due shall be paid as soon as practicable after the death of such eligible Employee or Terminated
Eligible Employee to the beneficiary or beneficiaries designated by such eligible Employee or
Terminated Eligible Employee to receive life insurance proceeds under Newmont Mining’s life
insurance plan. In the absence of an effective beneficiary designation under such plan, any amount
payable hereunder following the death of such eligible Employee or Terminated Eligible Employee
shall be paid to his or her estate.



8.4 Reimbursement. The Compensation Committee, to the full extent permitted by
governing law, shall have the discretion to require reimbursement of any portion of a Financial
Performance Bonus, Performance Leveraged Stock Bonus, and AICP Corporate Performance Bonus
previously paid to an eligible Employee pursuant to the terms of this compensation program if: a)
the amount of such Financial Performance Bonus, Performance Leveraged Stock Bonus, or AICP
Corporate Performance Bonus was calculated based upon the achievement of
certain financial results that were subsequently the subject of a restatement, and b) the
amount of such Financial Performance Bonus, Performance Leveraged Stock Bonus, or AICP Corporate
Performance Bonus that would have been awarded to the eligible Employee had the financial results
been reported as in the restatement would have been lower than the Financial Performance Bonus,
Performance Leveraged Stock Bonus, or AICP Corporate Performance Bonus actually awarded.
Additionally, the Compensation Committee, to the full extent permitted by governing law, shall have
the discretion to require reimbursement of any portion of a Financial Performance Bonus,
Performance Leveraged Stock Bonus, AICP Corporate Performance Bonus and Strategic Objective Bonus
previously paid to an eligible Employee pursuant to the terms of this compensation program if the
eligible employee is terminated for cause as defined in the Executive Change of Control Plan of
Newmont.


 


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8.5 Withholding Taxes. All bonuses payable hereunder shall be subject to the
withholding of such amounts as Newmont Mining or a Participating Employer may determine is required
to be withheld pursuant to any applicable federal, state or local law or regulation. The
Compensation Committee may, in its sole discretion, permit eligible Employees to satisfy the
minimum withholding applicable to the portion of the bonus payable in shares of Common Stock or
Performance Stock by causing Newmont Mining to withhold the appropriate number of shares of Common
Stock or Performance Stock from the bonus otherwise payable and to make the requisite withholding
payments on behalf of the eligible Employee.



8.6 Issuance of Stock. Shares of Common Stock and Performance Stock issued under this
compensation program may be issued pursuant to the provisions of any stock plan of Newmont Mining
or as otherwise determined in the sole discretion of the Compensation Committee. All awards under
this compensation program that consist of Common Stock or that are valued in whole or in part by
reference to, or are otherwise based on, Common Stock, shall be treated as made under the 2005
Stock Incentive Plan as well as this compensation program and thereby subject to the applicable
terms and conditions of the 2005 Stock Incentive Plan.



8.7 General Operation and Amendment. Notwithstanding anything contained in this
compensation program to the contrary, this compensation program shall be administered and operated
in accordance with any applicable laws and regulations including but not limited to laws affecting
the timing of payment of any bonus under this compensation program.



8.8 Right of Offset. To the extent permitted by applicable law, Newmont Mining or a
Participating Employer may, in its sole discretion, apply any bonus payments otherwise due and
payable under this compensation program against debts of an eligible Employee to Newmont Mining or
an Affiliated Entity. By accepting payments under this compensation program, all eligible
Employees shall consent to the reduction of any compensation paid to the eligible Employee by
Newmont Mining or an Affiliated Entity to the extent the eligible Employee receives an overpayment
from this compensation program.



8.9 Termination and Amendment. The Board may at any time amend, modify, suspend or
terminate this compensation program; provided, however, that the Compensation Committee may,
consistent with its administrative powers, waive or adjust provisions of this compensation program
as it determines necessary from time to time. The Compensation Committee may amend the terms of
any award theretofore granted hereunder, but no such
amendment shall be inconsistent with the terms and conditions of this compensation program or
materially impair the previously accrued rights of the eligible Employee to whom such award was
granted with respect to such award without his or her consent, except such an amendment made to
cause this program or such award to comply with applicable law, tax rules, stock exchange rules or
accounting rules.


 


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8.10 Severability. If any section, subsection or specific provision is found to be
illegal or invalid for any reason, such illegality or invalidity shall not affect the remaining
provisions of this compensation program, and this compensation program shall be construed and
enforced as if such illegal and invalid provision had never been set forth in this compensation
program.



8.11 No Right to Employment. The establishment of this compensation program shall not
be deemed to confer upon any eligible Employee any legal right to be employed by, or to be retained
in the employ of, Newmont Mining, a Participating Employer or any Affiliated Entity, or to give any
eligible Employee any right to receive any payment whatsoever, except as provided under this
compensation program. All eligible Employees shall remain subject to discharge from employment to
the same extent as if this compensation program had never been adopted.



8.12 Transferability. Any bonus payable hereunder is personal to the eligible
Employee and may not be sold, exchanged, transferred, pledged, assigned or otherwise disposed of
except by will or by the laws of descent and distribution.



8.13 Successors. This compensation program shall be binding upon and inure to the
benefit of Newmont Mining and eligible Employees and their respective heirs, representatives and
successors.



8.14 Governing Law. This compensation program and all agreements hereunder shall be
construed in accordance with and governed by the laws of the State of Colorado, unless superseded
by federal law.



8.15 Section 409A. It is the intention of Newmont Mining that awards and payments
under this compensation program comply with or be exempt from Section 409A of the Code and the
regulations and guidance promulgated thereunder (collectively “Code Section 409A”), and Newmont
Mining shall have complete discretion to interpret and construe this program and any related plan
or agreement in any manner that establishes an exemption from (or compliance with) the requirements
of Code Section 409A. If for any reason, such as imprecision in drafting, any provision of this
program and/or any such plan or agreement does not accurately reflect its intended establishment of
an exemption from (or compliance with) Code Section 409A, as demonstrated by consistent
interpretations or other evidence of intent, such provision shall be considered ambiguous as to its
exemption from (or compliance with) Code Section 409A and shall be interpreted by Newmont Mining in
a manner consistent with such intent, as determined in the discretion of Newmont Mining. None of
Newmont Mining nor any other Participating Employer shall be liable to any eligible Employee or any
other person (i) if any provisions of this program do not satisfy an exemption from, or the
conditions of, Code Section 409A, or (ii) as to any tax consequence expected, but not realized, by
any eligible Employee or other person due to the receipt or payment of any award under this
program.


 


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APPENDIX A




Target Financial Performance Bonus




	 	 	 	 	 
	Grade	 	Percentage of Base Salary	 
	E-1
	 	 	166.6	%
	E-2
	 	 	—	 
	E-3 Executive Vice President Operations and
Executive Vice President Development
	 	 	116.6	%
	E-3 Executive Vice President and Chief Financial
Officer and Executive Vice President, Strategic
Development
	 	 	100	%
	E-3 Executive Vice President, Human Resources
and Communications
	 	 	90	%
	E-4
	 	 	55	%





 


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APPENDIX B




Employee Target AICP Corporate Performance Bonus




	 	 	 	 	 
	Grade	 	Percentage of Base Salary
	E-1
	 	 	75%	
	E-2
	 	 	—	 
	E-3 Executive Vice President
Operations and Executive Vice
President Development
	 	 	47.5%	
	E-3 Executive Vice President and
Chief Financial Officer and
Executive Vice President,
Strategic Development
	 	 	45%	
	E-3 Executive Vice President,
Human Resources and
Communications
	 	 	42.5%	
	E-4 (excluding Regional Senior
Vice Presidents of operating
sites)
	 	 	37.5%	
	E-4 Regional Senior Vice
Presidents of operating sites
	 	
37.5% (25% of target is based upon 
AICP Corporate Performance and 
75% of target is based upon 
applicable regional bonus plan)





 


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APPENDIX C




Maximum Strategic Objectives Bonuses 




	 	 	 	 	 
	 	 	Maximum Strategic	 
	 	 	Objectives Bonus	 
	 	 	as a Percentage of	 
	 	 	Base Salary (which	 
	 	 	constitutes the	 
	 	 	Eligible Earnings	 
	 	 	for the year as	 
	 	 	defined in the	 
	Pay Grade	 	AICP)	 
	E-1
	 	 	150	%
	E-2
	 	 	—	 
	E-3 Executive Vice President Operations and Executive
Vice President Development
	 	 	95	%
	E-3 Executive Vice President and Chief Financial
Officer and Executive Vice President, Strategic
Development
	 	 	90	%
	E-3 Executive Vice President, Human Resources and
Communications
	 	 	85	%
	E-4
	 	 	75	%





 


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APPENDIX D




Target Performance Leveraged Stock Bonus




	 	 	 	 	 
	Grade	 	Percentage of Base Salary	 
	E-1
	 	 	166.6	%
	E-2
	 	 	—	 
	E-3 Executive Vice President Operations and
Executive Vice President Development
	 	 	116.6	%
	E-3 Executive Vice President and Chief
Financial Officer and Executive Vice President,
Strategic Development
	 	 	100	%
	E-3 Executive Vice President, Human Resources
and Communications
	 	 	90	%
	E-4
	 	 	55	%







 


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