Exhibit 10.2
TRANSITION AGREEMENT
RELEASE AND WAIVER
RELEASE AND WAIVER
I.RECITALS
A. ThisAGREEMENT, which is effective on theEFFECTIVE DATE, is by and between Newmont International Services Limited and Alan Blank (hereinafter “EMPLOYEE”).
B. 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 Release and Waiver.
B. “CLAIMS” means any debt, obligation, demand, application for attorneys’ fees and/or dispute resolution costs, cause of action, judgment, controversy or claim of any kind whatsoever betweenEMPLOYEEandNEWMONT, whether arising under common law or statute, including but not limited to claims for breach of contract (express or implied), quasi-contract, promissory estoppel, tort, fraud, misrepresentation, discrimination or any other legal theory; disputes relating to the employment relationship between the parties, termination thereof, or the interpretation of thisAGREEMENT; any and all debts, obligations, claims, demands, compensation, or rights under the company’s employee benefit plans; claims under Title VII of the Civil Rights Act of 1964, as amended; claims under the Civil Rights Act of 1991; claims under the Family and Medical Leave Act of 1993; claims under the Age Discrimination in Employment Act of 1967, as amended; claims under 42 U.S.C. § 1981, § 1981a, § 1983, § 1985, or § 1988; claims under the Americans with Disabilities Act of 1990, as amended; claims under the Employee Retirement Income Security Act of 1974, as amended; claims under the Worker Adjustment and Retraining Notification Act; or any other applicable federal, state, or local statute or ordinance, excluding claims for workers’ compensation benefits and claims under the Fair Labor Standards Act of 1938, as amended.
C. “COMPANY INFORMATION” means any confidential legal, financial, marketing, business, technical, or other information, including specifically but not exclusively, information whichEMPLOYEEprepared, caused to be prepared, or received in connection withEMPLOYEE’semployment withNEWMONT, such as management and business plans, business strategies, software, software evaluations, trade secrets, personnel information, marketing methods and techniques, and any of the above-recited information as it relates toNEWMONT.COMPANY INFORMATIONdoes not include: (a) information or knowledge which may subsequently come into the public domain after the termination ofEMPLOYEE’s employment other than by way of unauthorized disclosure byEMPLOYEE; or (b) information or knowledge whichEMPLOYEEis required to disclose by order of a governmental agency or court after timely notice has been provided toNEWMONTof such order.
D. “CAUSE” means theEMPLOYEEengaged in illegal, dishonest or fraudulent conduct in the course of his employment at any time between June 16, 2008 and the Effective Date, regardless of when such conduct is discovered by Newmont.
E. “EFFECTIVE DATE” means the first date upon which all of the following have occurred: (1)EMPLOYEEhas executed thisAGREEMENT; (2) the revocation period, if any, has expired without revocation byEMPLOYEE; (3) the executed agreement has been timely returned to Executive Vice President of Human Resources, Newmont, 6363 South Fiddlers Green Circle, Greenwood Village, CO 80111; and (4) anyCLAIMSbyEMPLOYEEhave been withdrawn and dismissed with prejudice.
F. “EMPLOYEE” means Alan Blank.
G.“Initial Date”means June 30, 2010.
H. “NEWMONT” means Newmont International Services 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.
I. “NEWMONT PROPERTY” shall include, but not be limited to, keys, access cards, files, memoranda, reports, software, credit cards, computer disks, instructional and management manuals, books, cellular phones, blackberries and computer equipment ofNEWMONT.
J. “SEPARATION DATE” shall mean January 11, 2011.
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III.COVENANTS
A. Term of Employment.EMPLOYEEshall remain employed byNEWMONTin the position of Executive Vice President until the Initial Date and thereafter as Technical Advisor to the Chief Executive Officer ofNEWMONTuntil the Separation Date (“Term of Employment”). Until June 30, 2010,EMPLOYEE’smonthly base salary shall continue at the same rate as designated on January 1, 2010. After June 30, 2010,EMPLOYEEshall be paid for any hours worked on behalf ofNEWMONTat an hourly rate of $500, rather than a monthly base salary. Through the entire Term of Employment,EMPLOYEEshall be eligible for health and welfare benefits under the applicable plans ofNEWMONTand shall be entitled to continue to insure his family members under the same terms as available to otherNEWMONTemployees; and after the Term of Employment,EMPLOYEEshall be eligible to continue such health and welfare benefits pursuant to the COBRA provisions of the applicable plans. From and after the Initial Date,EMPLOYEEshall not be entitled to any benefits under the Executive Change of Control Plan of Newmont. In addition, during the Term of Employment,EMPLOYEE shall not receive any bonus, stock or option awards for 2010 or 2011 performance, it being understood that the benefits described elsewhere in this paragraph and elsewhere in this Agreement are meant in part to compensateEMPLOYEEfor such foregone benefits. During the Term of Employment and for a period of one year from theSEPARATION DATE,NEWMONTshall 1) reimburseEMPLOYEEfor any lossEMPLOYEEand his spouse actually incur due to the sale ofEMPLOYEE’sprimary residence in Denver if such loss is incurred during the Term of Employment or within one year after theSEPARATION DATEand in connection with separation of service; 2) provide standardNEWMONT domestic relocation benefits toEMPLOYEE(per the executive relocation benefit packageEMPLOYEEwas granted upon his relocation to Denver in 2008), ifEMPLOYEErelocates during the Term of Employment or within one year after theSEPARATION DATE, and; 3) at the election ofEMPLOYEE, provide outplacement services withNEWMONT’soutplacement service provider up to an amount of $25,000; provided that any expenses paid or reimbursed byNEWMONTin connection with the foregoing are actually incurred byEMPLOYEEand directly related to the termination of services forNEWMONT. In no event shall any payments, benefits or reimbursements described in the preceding sentence be paid or provided with respect to expenses incurred later than the last day of the second calendar year following the calendar year in whichEMPLOYEE’sseparation from service withNEWMONToccurs, provided that any such reimbursements may be paid through the last day of the third calendar year following the calendar year of such separation. On January 11, 2011,EMPLOYEE’Semployment withNEWMONTshall terminate without triggering any sort of severance payment under the Severance Plan of Newmont. Notwithstanding the provisions set forth above,NEWMONTshall be entitled to terminateEMPLOYEE’Semployment withNEWMONTprior to January 11, 2011 forCAUSEwithout any severance or other sort of termination payment toEMPLOYEE.
B. Termination Payments and Consideration toEMPLOYEE. Contingent uponEMPLOYEE remaining employed until theINITIAL DATEwithNEWMONT,NEWMONTshall: 1) make an initial lump sum termination payment in the amount of $1,000,000 less all applicable local, state and federal withholding taxes to EMPLOYEE; and 2) vest any unvested restricted stock or restricted stock units previously granted toEMPLOYEE. Contingent uponEMPLOYEEremaining employed until theSEPARATION DATEwithNEWMONTand contingent upon execution of the Release and Waiver attached hereto asEXHIBIT A on January 11, 2011 without revocation,NEWMONTshall: 1) make a final lump sum termination payment in the amount of $471,180 less all applicable local, state, and federal withholding taxes toEMPLOYEE; 2) or thereafter, if there has not yet been a sale ofEMPLOYEE’s primary residence in Denver and within fifteen (15) days after a determination of whether any payment shall be made under Section 1 of paragraph III, A, make an additional lump sum payment of up $250,000 to the extent that any amount paid under subsection 1 of paragraph III, A. above is less than $250,000; and; 3) treat any options granted toEMPLOYEEpursuant to the severance provision of the applicable award agreement.
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C.Early Termination of Employment.
IfEMPLOYEE’semployment withNEWMONTterminates prior to January 11, 2011 due to death or disability ofEMPLOYEE,NEWMONTshall deliver the payments and consideration contained in paragraph III.B above, however such amount s shall be offset by any death or disability benefits paid toEMPLOYEEthrough anyNEWMONTdeath or disability benefit or plan.
D. Return and Protection ofCOMPANY INFORMATION.EMPLOYEEwill not use or discloseCOMPANY INFORMATIONat any time subsequent to theEFFECTIVE DATEof thisAGREEMENT.EMPLOYEEwill, by January 11, 2011, return toNEWMONTallNEWMONT PROPERTYand all documents and other material containingCOMPANY INFORMATION.EMPLOYEEwill not retain copies or excerpts ofCOMPANY INFORMATION.EMPLOYEEwill not discloseCOMPANY INFORMATIONat any time prior to theEFFECTIVE DATEof thisAGREEMENT, except as required in the course ofEMPLOYEE’semployment withNEWMONT.EMPLOYEEacknowledges that this paragraph is a material term of thisAGREEMENT. Accordingly, in the event of a breach of this paragraph byEMPLOYEE, in addition to any other remedy available toNEWMONT,NEWMONTmay cease any remaining payments otherwise dueEMPLOYEEunder thisAGREEMENTand will be entitled to injunctive relief and damages againstEMPLOYEE.
E. Release of Claims ByEMPLOYEE. As a material inducement toNEWMONTto enter into thisAGREEMENT,EMPLOYEE, as a free and voluntary act, hereby forever releases and dischargesNEWMONTfrom, and covenants not to sueNEWMONTfor,CLAIMSwhichEMPLOYEEmight have or assert againstNEWMONT(1) by reason ofEMPLOYEE’Semployment byNEWMONTand all circumstances related thereto prior to theEFFECTIVE DATEof thisAGREEMENT; or (2) by reason of any other matter, cause or thing whatsoever which may have occurred betweenEMPLOYEEandNEWMONTprior to theEFFECTIVE DATEof thisAGREEMENT, excluding claims regardingEMPLOYEE’svested Pension or Savings Plan benefits. With respect to any charges of discrimination filed with any federal, state or local agency, pending or otherwise, arising from or related toEMPLOYEE’Semployment or termination of employment withNEWMONT,EMPLOYEEacknowledges thatEMPLOYEEhas the right to file a charge, but thatEMPLOYEEknowingly and voluntarily waives his or her right to seek individual relief on his or her own behalf.
F. Non-disparagement. As a free and voluntary act,EMPLOYEEagrees that he or she will make no written or oral statements that directly or indirectly disparageNEWMONTin any manner whatsoever. It will not be a violation of this paragraph forEMPLOYEEto make truthful statements, under oath, as required by law or formal legal process.
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G. Affirmation of FLSA Compliance.EMPLOYEEaffirms thatNEWMONThas not violatedEMPLOYEE’Srights under the Fair Labor Standards Act of 1938, as amended.
IV.ADDITIONAL PROVISIONS
A. EMPLOYEECooperation. As a free and voluntary act,EMPLOYEEagrees afterEMPLOYEE’s separation to cooperate atNEWMONT’Sexpense with any investigations or lawsuits involvingNEWMONT on matters whereEMPLOYEEhad specific knowledge or responsibility.EMPLOYEEwill be reimbursed at a rate equal to his final base salary as of June 30, 2010, computed on an hourly basis.EMPLOYEE shall make himself available atNEWMONT’Sexpense for any litigation, including specifically, but not exclusively, preparation for depositions and trial.EMPLOYEEwill not receive reimbursement for time spent testifying in depositions or trial.EMPLOYEEagrees not to assist or provide information in any litigation againstNEWMONT, except as required under law or formal legal process after timely notice is provided toNEWMONTto allowNEWMONTto take legal action with respect to the request for information or assistance. Nothing in thisAGREEMENTshall restrict or precludeEMPLOYEEfrom, or otherwise influenceEMPLOYEEin, testifying fully and truthfully in legal or administrative proceedings againstNEWMONT, as required by law or formal legal process.
B. 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.
C. Entire Agreement. ThisAGREEMENTsupersedes all prior written and verbal promises and agreements between the parties. ThisAGREEMENTconstitutes the entire agreement between the parties and may be amended, modified or superseded only by a written agreement signed by both parties. No oral statements by any employee ofNEWMONTshall modify or otherwise affect the terms and provisions of thisAGREEMENT.
D. Governing Law. ThisAGREEMENTshall be construed in accordance with the laws of the State of Colorado.
E. No Admission of Liability.NEWMONTdenies that it has taken any improper action againstEMPLOYEEin violation of any federal, state, or local law or common law principle. The parties agree that thisAGREEMENTshall not be admissible in any proceeding as evidence of any improper conduct byNEWMONT.
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F. Free and Voluntary Act. This release means, in part, that EMPLOYEE gives up all rights to damages and/or money based upon any claims against NEWMONT of age discrimination that arise through the date this AGREEMENT is signed. EMPLOYEE acknowledges that EMPLOYEE has been given at least twenty-one (21) days to consider this AGREEMENT and that EMPLOYEE has been advised to consult with an attorney prior to signing this AGREEMENT. EMPLOYEE may waive the balance of the twenty-one (21) day consideration period by signing this AGREEMENT sooner. EMPLOYEE further acknowledges that by law EMPLOYEE has the right to revoke (that is, cancel) this AGREEMENT within seven (7) calendar days of signing it. To be effective, EMPLOYEE’S revocation must be in writing and tendered to Executive Vice President of Human Resources, Newmont, 6363 South Fiddlers Green Circle, Greenwood Village, CO 80111, either by mail or by hand delivery within the seven (7) day period. If by mail, the revocation must be: 1) postmarked within the seven (7) day period; 2) properly addressed; and 3) sent by Certified Mail, Return Receipt Requested. In the event that EMPLOYEE exercises this right to revoke, EMPLOYEE agrees to return to NEWMONT any and all sums paid to EMPLOYEE in consideration of the AGREEMENT.
G. No Other Representations.EMPLOYEEacknowledges that no promises or representations have been made to induceEMPLOYEEto sign thisAGREEMENTother than as expressly set forth herein and thatEMPLOYEEhas signed thisAGREEMENTas a free and voluntary act.
THIS IS A RELEASE — BY SIGNING, YOU ARE ACKNOWLEDGING THAT YOU
HAVE READ, UNDERSTAND, AND AGREE TO THE TERMS SET FORTH
ABOVE. BEFORE SIGNING YOU SHOULD READ CAREFULLY
AND CONSULT WITH AN ATTORNEY
HAVE READ, UNDERSTAND, AND AGREE TO THE TERMS SET FORTH
ABOVE. BEFORE SIGNING YOU SHOULD READ CAREFULLY
AND CONSULT WITH AN ATTORNEY
NEWMONT | EMPLOYEE | |||||||||
By: | /s/ William MacGowan | /s/ Alan Blank | ||||||||
Name: | William MacGowan | |||||||||
Title: | President | |||||||||
Date: May 5, 2010 | Date: May 5, 2010 |
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EXHIBIT A
RELEASE AND WAIVER
I.RECITALS
A. ThisEXHIBIT A RELEASE AND WAIVER(hereinafter “EXHIBIT”), which is effective on theEFFECTIVE DATE, is by and between Newmont International Services Limited and Alan Blank (hereinafter “EMPLOYEE”).
B. Unless otherwise defined herein, thisEXHIBITincorporates the definitions set forth in theAGREEMENT.
C. ThisEXHIBITsets forth the understanding betweenNEWMONTandEMPLOYEEconcerning all ofEMPLOYEE’sdisputes withNEWMONT, including but not limited to all claims whichEMPLOYEEhas or could have raised againstNEWMONTin connection withEMPLOYEE’semployment and related benefits. It is the desire of the parties to settle all disputes, known and unknown, in accordance with the terms and conditions set forth in thisAGREEMENT.
D. In consideration of the promises contained in thisEXHIBIT,NEWMONTandEMPLOYEEagree as follows:
II.DEFINITIONS
The following definitions shall be applicable for the purposes of only thisAGREEMENT:
A. “EFFECTIVE DATE” means the first date upon which all of the following have occurred: (1)EMPLOYEEhas executed thisEXHIBITand (2) the revocation period, if any, has expired without revocation byEMPLOYEE; (3) the executedEXHIBIThas been timely returned to Executive Vice President of Human Resources, Newmont, 6363 South Fiddlers Green Circle, Greenwood Village, CO 80111; and (4) anyCLAIMSbyEMPLOYEEhave been withdrawn and dismissed with prejudice.
B. “EXHIBIT” means this Exhibit A Release and Waiver.
C. “COMPANY INFORMATION” means any confidential legal, financial, marketing, business, technical, or other information, including specifically but not exclusively, information whichEMPLOYEEprepared, caused to be prepared, or received in connection withEMPLOYEE’semployment withNEWMONT, such as management and business plans, business strategies, software, software evaluations, trade secrets, personnel information, marketing methods and techniques, and any of the above-recited information as it relates toNEWMONT.COMPANY INFORMATIONdoes not include: (a) information or knowledge which may subsequently come into the public domain after the termination ofEMPLOYEE’semployment other than by way of unauthorized disclosure byEMPLOYEE; or (b) information or knowledge whichEMPLOYEEis required to disclose by order of a governmental agency or court after timely notice has been provided toNEWMONTof such order.
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D. “NEWMONT PROPERTY” shall include, but not be limited to, keys, access cards, files, memoranda, reports, software, credit cards, computer disks, instructional and management manuals, books, cellular phones, blackberries and computer equipment ofNEWMONT.
E. “SEPARATION DATE” means January 11, 2011.
III.COVENANTS
A. Consideration toEMPLOYEE. Contingent upon execution of thisEXHIBITwithout revocation on or after theSEPARATION DATE,NEWMONTwill provide the payment and consideration stated in paragraph III.(B) of theAGREEMENT, less all applicable local, state, and federal withholding taxes.
B. No Other Payments. Payment of all sums set forth in thisEXHIBITshall discharge all obligations ofNEWMONTtoEMPLOYEE, andEMPLOYEEwaives all rights to other compensation and benefits including specifically, but not exclusively, salaries, bonuses, benefits of whatsoever kind and description, and allowances for perquisites, but excluding all vested rights pursuant toNEWMONT’sPension and Savings plans.
C. Return and Protection ofCOMPANY INFORMATION.EMPLOYEEwill not use or discloseCOMPANY INFORMATIONat any time subsequent to theEFFECTIVE DATEof thisEXHIBIT.EMPLOYEEwill, by theSEPARATION DATE, return toNEWMONTallNEWMONT PROPERTYand all documents and other material containingCOMPANY INFORMATION.EMPLOYEEwill not retain copies or excerpts ofCOMPANY INFORMATION.EMPLOYEEacknowledges that this paragraph is a material term of thisAGREEMENT. Accordingly, in the event of a breach of this paragraph byEMPLOYEE, in addition to any other remedy available toNEWMONT,NEWMONTmay cease any remaining payments otherwise dueEMPLOYEEunder thisAGREEMENTand will be entitled to injunctive relief and damages againstEMPLOYEE.
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D. Release of Claims ByEMPLOYEE. As a material inducement toNEWMONTto enter into thisEXHIBIT,EMPLOYEE, as a free and voluntary act, hereby forever releases and dischargesNEWMONT from, and covenants not to sueNEWMONTfor,CLAIMSwhichEMPLOYEEmight have or assert againstNEWMONT(1) by reason ofEMPLOYEE’Semployment and/or termination of employment byNEWMONTand all circumstances related thereto; or (2) by reason of any other matter, cause or thing whatsoever which may have occurred betweenEMPLOYEEandNEWMONTprior to theEFFECTIVE DATEof thisEXHIBIT, excluding claims regardingEMPLOYEE’svested benefits inNEWMONT’SPension or Savings Plans. With respect to any charges of discrimination filed with any federal, state or local agency, pending or otherwise, arising from or related toEMPLOYEE’Semployment or termination of employment withNEWMONT,EMPLOYEEacknowledges thatEMPLOYEEhas the right to file a charge, but thatEMPLOYEE knowingly and voluntarily waives his or her right to seek individual relief on his or her own behalf.
E. Tax Liability.EMPLOYEEandNEWMONTagree that, in the event any taxing authority determines that amounts paid pursuant to this agreement are taxable beyond any amount withheld byNEWMONT,EMPLOYEEis solely responsible for the payment of all such taxes and penalties assessed againstEMPLOYEE, except for legally mandated employer contributions, and thatNEWMONThas no duty to defendEMPLOYEEagainst any such tax claim, penalty or assessment.EMPLOYEEagrees to cooperate in the defense of any such claim brought againstNEWMONT.NEWMONTagrees to cooperate in the defense of any such claim brought againstEMPLOYEE.
IV.ADDITIONAL PROVISIONS
A. Severability. In case any one or more of the provisions of thisEXHIBITshall 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.
C. No Admission of Liability.NEWMONTdenies that it has taken any improper action againstEMPLOYEEin violation of any federal, state, or local law or common law principle. The parties agree that thisEXHIBITshall not be admissible in any proceeding as evidence of any improper conduct byNEWMONT.
D. Free and Voluntary Act. This release means, in part, that EMPLOYEE gives up all rights to damages and/or money based upon any claims against NEWMONT of age discrimination that arise through the date this AGREEMENT is signed. EMPLOYEE acknowledges that EMPLOYEE has been given at least twenty-one (21) days to consider this AGREEMENT and that EMPLOYEE has been advised to consult with an attorney prior to signing this AGREEMENT. EMPLOYEE may waive the balance of the twenty-one (21) day consideration period by signing this AGREEMENT sooner. EMPLOYEE further acknowledges that by law EMPLOYEE has the right to revoke (that is, cancel) this AGREEMENT within seven (7) calendar days of signing it. To be effective, EMPLOYEE’S revocation must be in writing and tendered to Executive Vice President of Human Resources, Newmont, 6363 South Fiddlers Green Circle, Greenwood Village, CO 80111, either by mail or by hand delivery within the seven (7) day period. If by mail, the revocation must be: 1) postmarked within the seven (7) day period; 2) properly addressed; and 3) sent by Certified Mail, Return Receipt Requested. In the event that EMPLOYEE exercises this right to revoke, EMPLOYEE agrees to return to NEWMONT any and all sums paid to EMPLOYEE in consideration of the AGREEMENT.
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E. No Other Representations.EMPLOYEEacknowledges that no promises or representations have been made to induceEMPLOYEEto sign thisEXHIBITother than as expressly set forth herein and thatEMPLOYEEhas signed thisEXHIBITas a free and voluntary act.
THIS IS A RELEASE — BY SIGNING, YOU ARE ACKNOWLEDGING THAT YOU
HAVE READ, UNDERSTAND, AND AGREE TO THE TERMS SET FORTH
ABOVE. BEFORE SIGNING YOU SHOULD READ CAREFULLY
AND CONSULT WITH AN ATTORNEY
HAVE READ, UNDERSTAND, AND AGREE TO THE TERMS SET FORTH
ABOVE. BEFORE SIGNING YOU SHOULD READ CAREFULLY
AND CONSULT WITH AN ATTORNEY
NEWMONT | EMPLOYEE | |||||||||
By: | ||||||||||
Title: | ||||||||||
Date: | Date: | |||||||||
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