Exhibit 10.4
RETENTION AND TRANSITION AGREEMENT
I.RECITALS
A. ThisAGREEMENT, which is effective on theEFFECTIVE DATE, is by and between Newmont USA Limited and Brant Hinze (hereinafter “EMPLOYEE”).
B. WHEREAS,NEWMONThas requested thatEMPLOYEEremain employed atNEWMONTto facilitate the transfer ofEMPLOYEE’Sduties toEMPLOYEE’Ssuccessor.
C. WHEREAS,EMPLOYEEhas agreed to remain employed atNEWMONTandEMPLOYEEhas forgone an alternative offer of employment to obtain the consideration contained in thisAGREEMENT.
D. In consideration of the promises contained in thisAGREEMENT,NEWMONTandEMPLOYEEagree as follows:
II.DEFINITIONS
The following definitions shall be applicable for the purposes of only thisAGREEMENT:
A. “AGREEMENT” means this Retention and Transition Agreement.
B. "CAUSE” means the material failure ofEMPLOYEEto performEMPLOYEE’Swork duties or the material failure to followNEWMONTpolicies or procedures.CAUSEshall also mean theEMPLOYEE engaged in illegal, dishonest or fraudulent conduct.
C. "EFFECTIVE DATE” means the first date upon which all of the following have occurred: (1)EMPLOYEEhas executed thisAGREEMENT; and (2) the executedAGREEMENThas been timely returned to Director of Executive Compensation, Newmont, 6363 South Fiddler’s Green Circle, Greenwood Village, Colorado 80111.
D. “EMPLOYEE” means Brant Hinze.
E. “NEWMONT” means Newmont USA Limited and any predecessor or current or former subsidiary, parent, affiliated company, or successor of any of them, or benefit plan maintained or participated in by any of them, and the current and former directors, officers, employees, shareholders and agents of any or all of them, unless otherwise specifically stated in thisAGREEMENT.
III.COVENANTS
A. Retention Period.EMPLOYEEagrees to remain in his position of Regional Senior Vice President, North America, or any other position thatNEWMONTdeems appropriate, in its reasonable discretion, until December 31, 2009 (“Retention Period”).EMPLOYEE’Sbase salary during the Retention Period shall not be less thanEMPLOYEE’Sbase salary as of theEFFECTIVE DATEof thisAGREEMENT. During the Retention Period,EMPLOYEEshall remain eligible for all benefits and bonuses applicable to his position, including restricted stock, restricted stock unit or stock option awards for 2009 performance granted in 2010.EMPLOYEEunderstands and agrees that he is not eligible for any restricted stock, restricted stock unit or stock option award for 2010 performance. During the Retention Period,EMPLOYEEshall remain an at-will employee ofNEWMONT, unless Richard O’Brien, Brian Hill and Alan Blank are all three no longer officers of Newmont Mining Corporation. If Richard O’Brien, Brian Hill and Alan Blank are all three simultaneously no longer officers of Newmont Mining Corporation any time prior to January 1, 2010, thenNEWMONTshall not be entitled to terminate the employment ofEMPLOYEEduring the Retention Period withoutCAUSE. Prior to terminating the employment ofEMPLOYEEduring the Retention Period for failure to perform at acceptable standards, as determined in the reasonable discretion ofNEWMONT,NEWMONTshall issueEMPLOYEEa written notice of such performance deficiencies and allowEMPLOYEEa minimum of 10 days to cure performance deficiencies, and up to 30 days to cure performance deficiencies ifEMPLOYEEis diligently pursuing cure of such performance deficiencies. IfNEWMONTterminatesEMPLOYEE’S employment for any reason prior to January 1, 2010,EMPLOYEEshall not be entitled to any of the consideration in paragraph III.B of thisAGREEMENT. IfEMPLOYEEterminates employment withNEWMONT for any reason prior to January 1, 2010,EMPLOYEEshall not be entitled to any of the consideration in paragraph III.B or III.C of thisAGREEMENT.
B. Transition Period and Consideration. IfEMPLOYEEremains employed withNEWMONT through December 31, 2009,EMPLOYEEshall become the Technical Advisor to the Executive Vice President of Operations for a term of January 1, 2010 until April 1, 2011 (“Transition Period”) with duties, as determined by the Executive Vice President of Operations, but not to exceed, 20 hours per month. As of theEFFECTIVE DATEof thisAGREEMENT, the Technical Advisor to the Executive Vice President of Operations position meets eligibility requirements for the Health Plan of Newmont and service accrual requirements of the Pension Plan of Newmont and the Salaried Retiree Medical Plan of Newmont.EMPLOYEEshall be subject to any and all amendments or changes to any and all health, welfare and retirement plans, like any other employee, during the Retention Period and the Transition Period. During the Transition Period,EMPLOYEEmay not become employed with an employer other thanNEWMONTwithout the express written consent ofNEWMONT; provided however, that ifNEWMONTterminatesEMPLOYEEduring the Transition Period, then this restriction shall also terminate. During the Transition Period,EMPLOYEEshall receive base salary at the same rate as the base salary ofEMPLOYEEon December 31, 2009 andEMPLOYEEshall be entitled to benefits under the health and retirement benefits of Newmont for whichEMPLOYEEis eligible pursuant to the terms of such plans. During the Transition Period,EMPLOYEE
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shall not be eligible for any benefits under any bonus, equity or any change of control plan.NEWMONTshall be entitled to terminateEMPLOYEE’Semployment withNEWMONTprior to April 1, 2011 forCAUSE(but not for any other reason) without any severance, other sort of termination payment or salary or benefits (beyond the separation date) toEMPLOYEE.IfEMPLOYEEterminates employment withNEWMONTfor any reason prior to April 1, 2011,EMPLOYEEshall not be entitled to any severance, other sort of termination payment or salary or benefits (beyond the separation date).
C. Restricted Stock and Restricted Stock Units. In the event thatNEWMONTterminatesEMPLOYEE’Semployment during the Retention Period for any reason other thanCAUSE, NEWMONTwill make a request to the Board of Directors of Newmont Mining Corporation to vest all ofEMPLOYEE’S unvested restricted stock and restricted stock units.
D. No Other Payments. Upon termination of employment on April 1, 2011,EMPLOYEEshall not be entitled to any payments or benefits beyond the amounts stated in Section III.B of thisAGREEMENTandEMPLOYEEwaives all rights to other compensation and benefits including specifically, but not exclusively, salaries, bonuses, severance benefits or payments, benefits of whatsoever kind and description, and allowances for perquisites, but excluding all vested rights pursuant to any applicable pension or retirement savings plan ofNEWMONT. Any stock options, restricted stock and restricted stock units are governed by the applicable award agreement.
E. Nonsolicitation of Employees.EMPLOYEEagrees thatEMPLOYEEwill not during the Transition Period and for a period of one (1) year immediately following his separation of employment fromNEWMONT, for any reason, either onEMPLOYEE’sown account or in conjunction with or on behalf of any other person or entity whatsoever, directly or indirectly induce, solicit, or entice away any person who, at any time during the three (3) months immediately precedingEMPLOYEE’Sdate of separation, is a managerial level employee ofNEWMONT(including, but not limited to, any executive, director-level employee, manager, or any equivalent or successor term for any such employee.)
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IV.ADDITIONAL PROVISIONS
A. Severability. In case any one or more of the provisions of thisAGREEMENTshall be found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired. Further, any provision found to be invalid, illegal or unenforceable shall be deemed, without further action on the part of the parties hereto, to be modified, amended and/or limited to the minimum extent necessary to render such clauses and/or provisions valid and enforceable.
B. Governing Law. ThisAGREEMENTshall be construed in accordance with the laws of the State of Colorado.
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| NEWMONT | | EMPLOYEE |
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| By: | | /s/ Brian Hill | | /s/ Brant Hinze |
| Title: | | Executive Vice President, Operations | | |
| Date: | | July 22, 2009 | | Date: July 22, 2009 |
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