Exhibit 10.5
SEVERANCE RELEASE AND WAIVER
I.RECITALS
A. ThisAGREEMENT, which is effective on theEFFECTIVE DATE, is by and between Newmont International Services Limited and Russell Ball hereinafter “EMPLOYEE”).
B. In consideration of the promises contained in thisAGREEMENT, NEWMONT andEMPLOYEE agree 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 betweenEMPLOYEE andNEWMONT, 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 whichEMPLOYEE prepared, caused to be prepared, or received in connection withEMPLOYEE’s employment 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 INFORMATION does 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 whichEMPLOYEE is required to disclose by order of a governmental agency or court after timely notice has been provided toNEWMONT of such order.
D.“EFFECTIVE DATE” means the first date upon which all of the following have occurred: (1) EMPLOYEE has executed thisAGREEMENT; (2) the revocation period, if any, has expired without revocation byEMPLOYEE; (3) the executed agreement has been timely returned to Lori Ann Kocon, Employee Relations, Human Resources, Newmont, 6363 South Fiddlers Green Circle, Suite 800, Greenwood Village, CO 80111; and (4) anyCLAIMS byEMPLOYEE have been withdrawn and dismissed with prejudice.
E.“EMPLOYEE” means Russell Ball.
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.“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.
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III.COVENANTS
A.Separation from Employment.EMPLOYEE shall be separated from employment withNEWMONT, effective May 2, 2013(“DATE OF SEPARATION”).
B.Severance Benefits toEMPLOYEE. Contingent upon execution of thisAGREEMENT without revocation,NEWMONT will provide toEMPLOYEE a payment, less all applicable local, state, and federal withholding taxes, and benefits pursuant to the provisions of the Executive Severance Plan of Newmont. This amount shall be paid sixty (60) days after theDATE OF SEPARATION.
C.No Other Payments. Payment of all sums set forth in thisAGREEMENT shall discharge all obligations ofNEWMONT toEMPLOYEE, andEMPLOYEE waives 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 units granted prior to theEFFECTIVE DATE of thisAGREEMENT are governed by the severance clause of the applicable award agreement or plan document if there is no award agreement.
D.Return and Protection ofCOMPANY INFORMATION.EMPLOYEE will not use or discloseCOMPANY INFORMATIONat any time subsequent to theEFFECTIVE DATE of thisAGREEMENT.EMPLOYEE will, by theDATE OF SEPARATION, return toNEWMONT allNEWMONT PROPERTY and all documents and other material containingCOMPANY INFORMATION. EMPLOYEE will not retain copies or excerpts ofCOMPANY INFORMATION. EMPLOYEE will not discloseCOMPANY INFORMATION at any time prior to theEFFECTIVE DATE of thisAGREEMENT, except as required in the course ofEMPLOYEE’s employment withNEWMONT. EMPLOYEE acknowledges 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, NEWMONT may cease any remaining payments otherwise dueEMPLOYEE under thisAGREEMENT and will be entitled to injunctive relief and damages againstEMPLOYEE.
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E.Release of Claims ByEMPLOYEE. As a material inducement toNEWMONT to enter into thisAGREEMENT, EMPLOYEE,as a free and voluntary act, hereby forever releases and dischargesNEWMONT from, and covenants not to sueNEWMONT for,CLAIMS whichEMPLOYEE might have or assert againstNEWMONT (1) by reason ofEMPLOYEE’S employment and/or termination of employment byNEWMONT and all circumstances related thereto; or (2) by reason of any other matter, cause or thing whatsoever which may have occurred betweenEMPLOYEE andNEWMONT prior to theEFFECTIVE DATE of thisAGREEMENT, excluding claims regardingEMPLOYEE’s vested 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’S employment or termination of employment withNEWMONT, EMPLOYEE acknowledges thatEMPLOYEE knowingly 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, EMPLOYEE is solely responsible for the payment of all such taxes and penalties assessed againstEMPLOYEE, except for legally mandated employer contributions, and thatNEWMONT has no duty to defendEMPLOYEE against any such tax claim, penalty or assessment.EMPLOYEE agrees to cooperate in the defense of any such claim brought againstNEWMONT.NEWMONT agrees to cooperate in the defense of any such claim brought againstEMPLOYEE.
G.Non-disparagement. As a free and voluntary act,EMPLOYEE agrees 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 forEMPLOYEE to 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,EMPLOYEE will 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 thisAGREEMENT forEMPLOYEE to disclose the terms and provisions of thisAGREEMENT to his or her spouse, attorneys, accountants, tax advisors, or as compelled by law.
I.Affirmation of FLSA Compliance.EMPLOYEE affirms thatNEWMONT has not violatedEMPLOYEE’S rights under the Fair Labor Standards Act of 1938, as amended.
J.Nonsolicitation of Employees.EMPLOYEE agrees thatEMPLOYEE will not for a period of one (1) year immediately following the date of separation of employment fromNEWMONT, for any reason, either onEMPLOYEE’s own 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 date of separation of employment fromNEWMONT, 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.EMPLOYEE Cooperation. As a free and voluntary act,EMPLOYEE agrees afterEMPLOYEE’s separation to cooperate atNEWMONT’S expense with any investigations or lawsuits involvingNEWMONT on matters whereEMPLOYEE had specific knowledge or responsibility.EMPLOYEE will be reimbursed at a rate equal to his or her final base salary computed on an hourly basis.EMPLOYEE shall make himself or herself available atNEWMONT’S expense for any litigation, including specifically, but not exclusively, preparation for depositions and trial.EMPLOYEE will not receive reimbursement for time spent testifying in depositions or trial.EMPLOYEE agrees not to assist or provide information in any litigation againstNEWMONT, except as required under law or formal legal process after timely notice is provided toNEWMONT to allowNEWMONT to take legal action with respect to the request for information or assistance. Nothing in thisAGREEMENT shall restrict or precludeEMPLOYEE from, or otherwise influenceEMPLOYEE in, 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 thisAGREEMENT shall 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. ThisAGREEMENT supersedes all prior written and verbal promises and agreements between the parties. ThisAGREEMENT constitutes 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 ofNEWMONT shall modify or otherwise affect the terms and provisions of thisAGREEMENT.
D.Governing Law. ThisAGREEMENT shall 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 againstEMPLOYEE in violation of any federal, state, or local law or common law principle. The parties agree that thisAGREEMENT shall 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, Human Resources, 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 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
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| NEWMONT | | | | EMPLOYEE | | |
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| By: | | /s/ Logan Hennessey | | | | /s/ Russell Ball | | |
| Title: | | Vice President & Secretary | | | | | | | | |
| Date: | | May 2, 2013 | | | | Date: | | May 2, 2013 | | |
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