Exhibit 10.62
EXECUTIVE SEVERANCE RELEASE AND WAIVER
I.RECITALS
A. ThisAGREEMENT,which is effective on theEFFECTIVE DATE,is by and between Newmont International Services Limited and Brian Hill (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 Severance 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’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.
D. “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 Lori Kocon, Employee Relations Manager, Newmont, 6363 South Fiddlers Green Circle, Suite 800, Greenwood Village, CO 80111; and (4) anyCLAIMSbyEMPLOYEEhave been withdrawn and dismissed with prejudice.
E. “EMPLOYEE” means Brian Hill.
F. “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.
G. “NEWMONTPROPERTY”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.
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III.COVENANTS
A.Separation from Employment.EMPLOYEEshall be separated from employment withNEWMONT, effective October 14, 2012.
B.Executive Severance Benefits toEMPLOYEE.Contingent upon execution of thisAGREEMENTwithout revocation,NEWMONTwill provide toEMPLOYEEa payment, less all applicable local, state, and federal withholding taxes, and benefits pursuant to the provisions of the Severance Plan of Newmont. This amount shall be paid within thirty (30) days after theEFFECTIVE DATEof thisAGREEMENT.
C.No Other Payments. Payment of all sums set forth in thisAGREEMENTshall discharge all obligations ofNEWMONT toEMPLOYEE,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 to any applicable pension or retirement savings plan ofNEWMONT.Any stock options or unvested restricted stock units shall be treated according to the schedule in Attachment A.
D.Return and Protection ofCOMPANY INFORMATION.EMPLOYEE will not use or discloseCOMPANY INFORMATIONat any time subsequent to theEFFECTIVE DATEof thisAGREEMENT. EMPLOYEEwill, by the Separation Date, return toNEWMONTallNEWMONTPROPERTYand 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 dischargesNEWMONT from, and covenants not to sueNEWMONTfor,CLAIMSwhichEMPLOYEEmight have or assert againstNEWMONT(l) 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 thisAGREEMENT,excluding claims regardingEMPLOYEE’svested pension 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 with
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NEWMONT,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.Tax Liability.EMPLOYEE andNEWMONT agree 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.
G.Non-disparagement. As a free and voluntary act,EMPLOYEEagrees that he or she will make no written or oral statements that directly or indirectly disparageNEWMONT in 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.
H.Confidentiality.EMPLOYEE agrees that except as otherwise specifically provided in thisAGREEMENT, EMPLOYEEwill not disclose (in whole or in part) any of the terms or provisions of thisAGREEMENT,or characterize any of the terms or provisions of thisAGREEMENT,to any other person or entity. It shall not be a breach of thisAGREEMENTforEMPLOYEEto disclose the terms and provisions of thisAGREEMENTto his or her spouse, attorneys, accountants, tax advisors, or as compelled by law.
I.Nonsolicitation of Employees.EMPLOYEE agrees thatEMPLOYEE will not for a period of one (1) year immediately following his or her separation 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 preceding the Separation Date, 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.)
J.Affirmation of FLSA Compliance.EMPLOYEE affirms thatNEWMONThas not violatedEMPLOYEE’Srights under the Fair Labor Standards Act of 1938, as amended.
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IV.ADDITIONAL PROVISIONS
A.EMPLOYEE Cooperation. As a free and voluntary act,EMPLOYEEagrees afterEMPLOYEE’Sseparation to cooperate atNEWMONT’Sexpense with any investigations or lawsuits involvingNEWMONTon matters whereEMPLOYEEhad specific knowledge or responsibility.EMPLOYEEwill be reimbursed at a rate equal to his or her final base salary computed on an hourly basis.EMPLOYEEshall make himself or herself available atNEWMONT’S expense 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.NEWMONT denies 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 forty- five (45) 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 forty-five (45) 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 Lori Kocon, Employee Relations Manager, Newmont, 6363 South Fiddlers Green Circle, Suite 800, 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.EMPLOYEE acknowledges that no promises or representations have been made to induceEMPLOYEE to sign thisAGREEMENT other than as expressly set forth herein and thatEMPLOYEE has signed thisAGREEMENT as 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
| | | | | | | | |
| NEWMONT | | | | EMPLOYEE |
| | | |
| By: | | /s/ David Kristoff | | | | /s/ Brian Hill |
| Title: | | VP, Total Rewards & HR Systems | | | | Date: | | 15th October, 2012 |
| Date: | | 10/12/12 | | | | | | |
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