Exhibit 10.1





Exhibit 10.1




EXECUTIVE SEVERANCE PLAN OF NEWMONT




Effective October 26, 2011




 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE I

	 
	 	 	 	 
	DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	ARTICLE II

ELIGIBILITY

	 
	 	 	 	 
	Section 2.01. General Eligibility Requirements
	 	 	3	 
	 
	 	 	 	 
	ARTICLE III

BENEFITS

	 
	 	 	 	 
	Section 3.01. Basic Severance Benefits
	 	 	4	 
	Section 3.02. Coordination With Certain Change in Control Programs
	 	 	4	 
	Section 3.03. Payment of Severance Benefits
	 	 	4	 
	Section 3.04. Other Benefits
	 	 	5	 
	Section 3.05. Return of Benefits in the Event of Cause
	 	 	5	 
	 
	 	 	 	 
	ARTICLE IV

	 
	 	 	 	 
	CONTINUATION OF HEALTH CARE COVERAGE
	 	 	6	 
	 
	 	 	 	 
	ARTICLE V

	 
	 	 	 	 
	PROTECTION OF MEDICAL PRIVACY
	 	 	6	 
	 
	 	 	 	 
	ARTICLE VI

ADMINISTRATION COMMITTEE AND CLAIMS FOR BENEFITS

	 
	 	 	 	 
	Section 6.01. Appointment of the Administration Committee
	 	 	6	 
	Section 6.02. Responsibilities of the Administration Committee
	 	 	6	 
	Section 6.03. Organization of the Administration Committee
	 	 	6	 
	Section 6.04. Indemnification of Administration Committee Members
	 	 	7	 
	Section 6.05. Benefits Claims and Appeals
	 	 	7	 
	 
	 	 	 	 
	ARTICLE VII

MISCELLANEOUS

	 
	 	 	 	 
	Section 7.01. Plan Documentation
	 	 	7	 
	Section 7.02. Funding of Severance Benefits
	 	 	7	 
	Section 7.03. Amount Payable Upon Death of Eligible Participant
	 	 	7	 
	Section 7.04. Confidential Information
	 	 	8	 
	Section 7.05. Release
	 	 	8	 




Executive Severance Plan of Newmont

Effective October 26, 2011




 


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	 	 	Page	 
	 
	 	 	 	 
	Section 7.06. Employment Status
	 	 	8	 
	Section 7.07. Validity and Severability
	 	 	8	 
	Section 7.08. Governing Law
	 	 	8	 
	Section 7.09. Right of Offset
	 	 	8	 
	Section 7.10. Conformance With Applicable Laws
	 	 	9	 
	Section 7.11. Payments Due Minors or Incapacitated Persons
	 	 	9	 
	 
	 	 	 	 
	ARTICLE VIII

DURATION, AMENDMENT AND TERMINATION

	 
	 	 	 	 
	Section 8.01. Duration
	 	 	9	 
	Section 8.02. Amendment or Termination
	 	 	9	 






Executive Severance Plan of Newmont

Effective October 26, 2011




 


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EXECUTIVE SEVERANCE PLAN OF NEWMONT




INTRODUCTION




Newmont USA Limited, and certain related entities (“Newmont”), hereby establishes this
Executive Severance Plan of Newmont (the “Plan”) effective October 26, 2011 for the purpose of
providing certain Executive Employees as defined below with severance benefits.



This Plan is intended to constitute a health and welfare benefit plan under the Employee
Retirement Income Security Act of 1974 and not subject to the provisions of Internal Revenue Code
Section 409A. Notwithstanding any provision herein to the contrary, Newmont explicitly reserves
the right to amend or modify the Plan in any manner necessary to comply with any laws or
regulations that may be determined by Newmont as applicable to the Plan.



ARTICLE I




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 VI.



“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.




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



“Cause” means: a) engagement in illegal conduct or gross negligence or willful misconduct,
provided that if the Executive Employee acted in accordance with an authorized written opinion of
Employer’s, or an affiliated entity’s, legal counsel, such action will not constitute “Cause;” b)
any dishonest or fraudulent activity by the Executive Employee or the reasonable belief by the
Employer of the Executive Employee’s breach of any contract, agreement or representation with the
Employer or an affiliated entity, or c) violation of Newmont Mining Corporation’s Code of Business
Ethics and Conduct.




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



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


 


 









 





“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 a disability plan of Newmont following termination of employment.



“Employee” means an employee of an Employer 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.



“Executive Employee” means an Employee with the classification or title of Chief Executive
Officer (“CEO”), Executive Vice President (“E2-E3”), Senior Vice President (“E4”), Vice President
(“E5”), Group Executive (“E6”) or Director (“109”) and is on the Newmont’s United States payroll.



“Involuntary Termination” means any involuntary termination of employment of an Executive
Employee by the Employer for any reason other than: (a) Cause, as determined in the sole discretion
of Employer, (or if after termination it is determined the Executive Employee could have been
terminated for Cause), (b) termination of employment due to disability under a disability plan of
Newmont (as determined by the Administration Committee or its delegate in its sole discretion), (c)
retirement as of Normal or Early Retirement pursuant to the Pension Plan of Newmont as those terms
are defined therein, and (d) death of the Executive Employee prior to termination of employment.
An Involuntary Termination shall not be deemed to have occurred if the Executive Employee accepts
any position with Employer, or the Employer offers the Executive Employee employment within a 75
mile radius of the Executive Employee’s prior position, at Executive Employee’s same or higher
annual base salary and within one compensation grade level of Executive Employee’s prior position.




“Plan” means this Executive Severance Plan of Newmont.



“Salary” means the Executive Employee’s annual base salary as of termination of employment.
Salary shall not include any extra pay for foreign service or foreign assignment, hardship pay,
moving allowances, the cost of goods and services, danger pay, the value of any
stock/equity based compensation (including but not limited to stock options, deferred stock,
restricted stock, restricted stock units, common stock or performance stock units).


 


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“Service” means continuous service with the Employer or an Affiliated Entity commencing on the
Executive Employee’s date of hire and each successive 12-month period.



“Target Annual Bonus” means the Annual Incentive Compensation Payroll Practice or other annual
bonus payroll practice amount that the Executive Employee would have received for the year in which
his Date of Termination occurs if the target goals had been achieved. “Annual Bonus” shall not
include any extra pay for foreign service or foreign assignment, hardship pay, moving allowances,
the cost of goods and services, danger pay, the value of any stock/equity based compensation
(including but not limited to stock options, deferred stock, restricted stock, restricted stock
units, common stock or performance stock units).



ARTICLE II




ELIGIBILITY




Section 2.01. General Eligibility Requirements. The benefits provided under this Plan will be
available to any Executive Employee employed by Newmont or any of its U.S. based affiliates in
salary grades 109 to E-1 at the time of termination of employment provided the following
requirements are met:




(a) The Executive Employee leaves employment with the Employer due to Involuntary
Termination; and




(b) The Executive Employee delivers to the Administration Committee or its delegate,
within the timeframe prescribed by the Administration Committee or its delegate, an executed
Agreement and Release that conforms to Section 7.05 and is acceptable to the Administration
Committee or its delegate and the Agreement and Release is not subsequently revoked.



Subject to the coordination provisions of Section 3.02 pertaining to change in control plans,
if an Executive Employee is eligible for benefits under this Plan, the Executive Employee shall not
be entitled to severance benefits under any other severance plan of Newmont, including but not
limited to the Severance Plan of Newmont.


 


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ARTICLE III




BENEFITS




Section 3.01. Basic Severance Benefits. Severance benefits shall consist of a portion of
Salary and Target Annual Bonus calculated as follows:




(a) Salary Schedule by Grade



	 	 	 	 	 	 	 
	Salary Grade	 	 	 	 	 	Benefit
	CEO

	 	 	E1	 	 	24 months of Salary
	 
	 	 	 	 	 	 
	EVP

	 	 	E2

E3	 	 	15 months of Salary + 1 month of Salary for
every year of Service up to a maximum total of 18 months of Salary
	 
	 	 	 	 	 	 
	SVP

	 	 	E4	 	 	12 months of Salary + 1 month of Salary for
every year of Service up to a maximum total of
15 months of Salary
	 
	 	 	 	 	 	 
	VP

	 	 	E5	 	 	12 months of Salary
	 
	 	 	 	 	 	 
	Group Executive

	 	 	E6	 	 	9 months of Salary + 1 month of Salary for
every year of Service up to a maximum total of
12 months of Salary
	 
	 	 	 	 	 	 
	Senior Director

	 	 	109	 	 	6 months of Salary + 1 month of Salary for
every year of Service up to a maximum total of
9 months of Salary







Monthly Salary is determined in one-twelfth increments based on regular annual Salary
at the time of termination of employment.




(b) The Executive Employee’s Target Annual Bonus pro-rated for the percentage of the
calendar year of termination for which the Employee was employed by Employer. In the event
that an Employee experiences an Involuntary Termination at the beginning of a calendar year
before the Annual Incentive Compensation Payroll Practice or other annual bonus payroll
practice amount is paid for the prior calendar year, the Employee shall receive (i) the
Target Annual Bonus pro-rated for the percentage of the calendar year of termination for
which the Employee was employed by Employer and (ii) the actual Annual Incentive
Compensation Payroll Practice or other annual bonus payroll practice amount for the prior
calendar year when such payment is made in the normal course of events.



Section 3.02. Coordination With Certain Change in Control Programs. If an Executive Employee
who is eligible for benefits and payments under this Plan is also eligible to receive benefits and
payments under a change of control plan of Newmont, the Executive Employee shall only be entitled
to receive payments and benefits under this Plan or under the applicable change of control plan,
but not both, and shall be entitled to receive the greater of the benefits and payments otherwise
payable under this Plan or the benefits and payments otherwise payable under the applicable change
of control plan.



Section 3.03. Payment of Severance Benefits. The amount of severance benefits payable to an
Executive Employee under this Article III shall be paid in a single cash lump sum as soon as
administratively possible following the date of the Executive Employee’s termination of employment
and the Executive Employee’s execution of a release described in Section 7.05 and the expiration of
the applicable revocation period. Such amount shall be paid no later than the fifteenth day of the
third month following the year in which the Executive Employee met the requirements to receive
benefits under this Plan.


 


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Section 3.04. Other Benefits.




(a) Medical, Vision, Prescription Drug and Dental Coverage. An Executive Employee who
is eligible to receive severance benefits under this Plan will be entitled to Employer paid
Consolidated Omnibus Budget Reconciliation Act (“COBRA”) coverage for medical, vision,
prescription drug and dental plan (if and as such plans then exist) for a period of months
equal to the number of months of Salary that the Executive Employee receives as a severance
benefit as determined under Article III, if the Executive Employee elects COBRA coverage.
However, in no event shall the Employer paid COBRA coverage extend beyond the period of time
that the Executive Employee would otherwise be entitled to continue coverage under the
provisions of COBRA. The COBRA period will run concurrent with medical coverage provided
for under this Section. In the event the number of months of salary paid as a severance
benefit is less than the Employee’s COBRA period, COBRA coverage shall continue at the
Employee’s expense for the remaining COBRA period.




(b) Life Insurance Plan. An Executive Employee will continue to be covered under the
basic group term life insurance portion of the Employer’s life insurance and accidental
death and dismemberment insurance plan (the “Life Insurance Plan”) (if and as such plan then
exists) to the extent such benefits are paid by the Employer insuring the lives of the
Executive Employee and his spouse for a period of months equal to the number of months of
Salary that the Executive Employee receives as a severance benefit, but such coverage under
the Life Insurance Plan shall not exceed six months from the date of the Executive
Employee’s termination of employment. Coverage under the Life Insurance Plan will cease at
the end of such period without any notification by the Employer to the Executive Employee.
Any supplemental life insurance coverage and accidental death and dismemberment coverage
under the Life Insurance Plan will terminate on the Executive Employee’s termination of
employment.




(c) Outplacement Services. An Executive Employee who is eligible to receive severance
benefits under this Plan will be entitled to outplacement services with a vendor of
Employer’s choice for the period of months of Salary payable under this Plan, not to exceed
12 months beginning with the month immediately following termination of employment.




(d) Controlling Plan Provisions. Benefits provided pursuant to this Section 3.04 shall
be governed by the respective benefit plans including rules pertaining to HIPAA, COBRA and
claims for benefits.



Section 3.05. Return of Benefits in the Event of Cause. In the event the Employer determines
that Cause existed for the termination of an Executive Employee’s employment after the Executive
Employee has been offered or received benefits pursuant to this Plan, the Employer shall be
entitled to recover such amounts from the Executive Employee or offset any other amounts owed by
the Employer to the Executive Employee.


 


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ARTICLE IV




CONTINUATION OF HEALTH CARE COVERAGE




Continuation of coverage under the Plan shall be permitted only with respect to health
coverage described in Section 3.04(a) in accordance with the applicable health plan and Section
3.04(a) of this Plan. No continuation of coverage is otherwise permitted under this Plan.



ARTICLE V




PROTECTION OF MEDICAL PRIVACY




The Plan is generally not subject to HIPAA. HIPAA shall apply only with respect to medical
benefits described in Section 3.04(a) in accordance with the applicable health plan.



ARTICLE VI




ADMINISTRATION
COMMITTEE AND

CLAIMS FOR BENEFITS




Section 6.01. Appointment of the Administration Committee. The Board or its delegate shall
appoint the members of the Administration Committee who may be, but need not be, officers,
directors or Employees of Newmont. The members of the Administration Committee shall hold office
at the pleasure of the Board and shall serve without compensation.



Section 6.02. 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
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. 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. Any decisions by the Administration Committee in respect of
eligibility for benefits under the Plan shall be subject to de novo review.



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 6.03. Organization of the Administration Committee. The Administration 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. The Administration Committee may appoint agents (who
need not be members of the Administration Committee) to whom it may delegate such powers as it
deems appropriate. The Administration 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 the Administration Committee shall be taken
by a majority of the members attending a meeting of the
Administration Committee (provided at least a majority of the Administration Committee members
are at such meeting) or by a majority of the members of the Administration Committee executing a
written instrument setting forth the action taken.


 


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Section 6.04. Indemnification of Administration Committee Members. Newmont shall indemnify
the members of the Administration 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 the Administration Committee members or any individuals
delegated authority by the Administration Committee if such individuals are employed by Newmont or
an Affiliated Entity. Newmont does not hereby indemnify any entity or person that is not an
Employee of Newmont 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.



Section 6.05. Benefits Claims and Appeals. The intention of Newmont is that the Plan be
construed as a “welfare plan,” as defined in Section 3(1) of ERISA, and this Section 6.05 shall
apply. The Administration Committee shall establish a claims and appeals procedure applicable to
persons eligible to participate in the Plan. Unless otherwise required by applicable law, such
procedures will provide that any such person has not less than 60 days following receipt of any
adverse benefit determination within which to appeal the determination in writing with the
Administration Committee, and that the Administration Committee must respond in writing within 60
days of receiving the appeal, specifically identifying those Plan provisions on which the benefit
denial was based and indicating what, if any, information such person must supply in order to
perfect a claim for benefits. The claims procedures of this Section must be exhausted prior to an
individual bringing a legal claim or action for benefits under the Plan.



ARTICLE VII




MISCELLANEOUS




Section 7.01. Plan Documentation. This Plan shall constitute the “plan document” for purposes
of ERISA and other laws that may apply. In the event the provisions of this Plan are inconsistent
with other documents or communications, the provisions of this Plan shall control.



Section 7.02. Funding of Severance Benefits. All severance benefit payments under this Plan
will be made by the Employer from its general funds and no Executive Employee shall have any right
with respect to any specific assets of the Employer and shall be a general creditor of the Employer
with respect to any amounts payable hereunder.



Section 7.03. Amount Payable Upon Death of Eligible Participant. If an Executive Employee
dies after an Involuntary Termination of employment under the provisions of this Plan but before
receiving payment of the amount due hereunder, such amount shall be paid, in a cash lump sum, to
the beneficiary or beneficiaries designated by the Executive Employee to receive life insurance
proceeds under the Employer’s Life Insurance Plan. In the absence of an effective
beneficiary designation, any amount payable hereunder following the death of an Executive
Employee shall be paid to the Executive Employee’s estate.


 


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Section 7.04. Confidential Information. Each Executive 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 Executive Employee during the Executive 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 Executive Employee or representatives of the Executive Employee in
violation of this Plan). As a condition of participation in this Plan, after termination of an
Executive Employee’s employment with the Employer, the Executive 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.



Section 7.05. Release. As a condition to receipt of any benefits under this Plan, an
Executive Employee eligible to receive benefits under this Plan shall execute an Agreement and
Release, under which the Executive Employee: (a) releases the Employer and Affiliated Entities and
any director, officer, Employee, agent or representative from any cause of action arising out of
the Executive Employee’s employment with and termination from an Employer; (b) agrees to
non-disparagement of Employer and Affiliated Entities, and; (c) agrees to a non-solicitation clause
of Employer’s and Affiliated Entities’ Employees. Such release shall include, but shall not be
limited to, a waiver by the Executive Employee of pursuit of any action based on wrongful
termination, state or federal nondiscrimination in employment laws or state and federal
compensation and benefits laws (including ERISA).



Section 7.06. Employment Status. This Plan does not constitute a contract of employment or
impose on the Employee or the Employer any obligation for the Employee to remain an Employee or
change the status of the Executive Employee’s employment or the policies of the Employer regarding
termination of employment.



Section 7.07. 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 7.08. 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 7.09. 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
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 Executive Employee
shall consent to the reduction of any compensation paid to the Executive Employee by the Employer
to the extent the Executive Employee receives an overpayment from the Plan. Notwithstanding the
foregoing, however, the Employer shall not offset any benefits
payable pursuant to this Plan to the extent such offset would result in the imposition of
taxes or penalties pursuant to Code Section 409A and the Treasury Regulations issued thereunder.


 


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Section 7.10. Conformance With Applicable Laws. Notwithstanding anything contained herein to
the contrary, this Plan shall be administered and operated in accordance with any applicable laws
and regulations, including, but not limited to, laws affecting the timing of payments to 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 7.11. 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.



ARTICLE VIII 


DURATION, AMENDMENT AND TERMINATION




Section 8.01. Duration. Unless terminated by the Board, the Plan shall remain effective
hereafter.



Section 8.02. Amendment or Termination. The Board may amend or terminate this Plan, at its
sole discretion.



*The remainder of this page is intentionally left blank.



 


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The Plan Sponsor, by its duly authorized officer, has executed the Plan on the date written
below.



	 	 	 	 	 
	 	NEWMONT USA LIMITED, Plan Sponsor

 	 
	Dated: October 26, 2011 	By:  	/s/ Stephen P. Gottesfeld
 	 
	 	 	Name:  	Stephen P. Gottesfeld 	 
	 	 	Title:  	Vice President, General Counsel and Secretary 	 




 


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