EXHIBIT 10.4
AMENDED AND RESTATED
EXECUTIVE SUPPLEMENTAL RETIREMENT PLAN
Homestake Mining Company
Effective August 1, 1995
HOMESTAKE MINING COMPANY
AMENDED AND RESTATED EXECUTIVE SUPPLEMENTAL RETIREMENT PLAN
1. The Amended and Restated Executive Supplemental Retirement Plan (the
"Plan") for designated key executives of Homestake Mining Company is
effective as of August 1, 1995.
2. General Purpose of Plan
This Plan is established to provide supplementary Retirement Benefits
for key executives designated by the Compensation Committee of the
Board of Directors.
3. Definitions
(a) "Affiliate" means any affiliated organizations designated by
the Compensation Committee to participate in the Plan.
(b) "Board" means the Board of Directors of Homestake Mining
Company.
(c) "Company" means Homestake Mining Company.
(d) "Committee" means the Compensation Committee of the Board, as
constituted from time to time, or, in the event there is no
such Committee of the Board, means the Board.
(e) "Compensation" means all regular base salary; performance
bonuses paid under the Homestake Mining Company Bonus Plan;
plus any pre-tax reductions of such compensation made at the
election of the Member under a Section 401 (k), cafeteria,
deferred income or similar plans paid by the Company and
Affiliates. All other payments to a Member, such as relocation
bonuses, tax equalization payments, fees, commissions,
directors fees and payments resulting from or relating to the
exercise of stock option or appreciation rights are excluded.
(f) "Participant" means a key executive of the Company or
Affiliate who receives written notification from the Company
that he or she has been designated as a participant of the
Plan by the Compensation Committee.
(g) "Normal Retirement Date" means with respect to a Member the
first day of the calendar month coincident with or next
following the first date on which the Member has both attained
age sixty-two and completed ten or more continuous years of
Service.
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(h) "Reorganization" means any of the following events:
(i) the Company is a party to a merger or consolidation under
the terms of which less than 75% of the shares in the
resulting company are owned by the shareholders of the Company
immediately preceding such events; (ii) at least 75% in fair
market value of the Company's assets are sold in a single
transaction or series of related transactions; or (iii) at
least 25% in voting power of the Company's shares for electing
directors are acquired by any one person or group as that term
is used in Rule 13d-5 under the Securities Exchange Act of
1934.
(i) "Retirement Benefit" means the benefits payable under this
Plan, calculated in accordance with Section 4.
(j) "Homestake Retirement Plan" means the Homestake Retirement
Plan, restated as of January 1, 1989, as it has been and may
be amended and restated from time to time.
(k) "Service" means all periods of employment with the Company
and any Affiliate and any other entity designated by the
Company.
4. Retirement Benefit
(a) Normal Retirement Benefit--At the Normal Retirement Date a Member who
retires at such date shall be entitled to receive a monthly Retirement
Benefit equal to the amount determined by multiplying:
(i) 4-1/3% by
(ii) the complete or fractional years of Service (up to a
maximum of fifteen years) by
(iii)the average monthly Compensation paid to the Member
during the period of his thirty-six consecutive months
of highest Compensation (or, if employed for less than
thirty-six consecutive months, the period of such
Member's actual employment);
The monthly Retirement Benefit thus calculated shall be
reduced by:
(iv) commencing on the Member's attainment of age 65, (x)
50% of the primary insurance amount of United States
Social Security which the Member would be entitled to
receive if he retired and commenced receipt of benefits
at that time, and (y) an amount equal to any reduction
for Canada Pension Plan, Quebec Pension Plan and any
similar foreign employment related social security plan
("foreign plans")
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benefits which the Member would be entitled to receive
if he retired and commenced receipt of benefits at that
time, but only to the extent the Homestake Retirement
Plan has been amended prior to the Member's attainment
or age 65 to provide for such a reduction in respect
of foreign plans from benefits payable under the
Homestake Retirement Plan, and
(v) benefits from time to time received or receivable
before giving effect to any spousal or contingent
annuitant benefit election under the Homestake
Retirement Plan, the Supplemental Retirement Plan or
any other of the Company's pension or retirement plans
(not including the Savings Plan), and any disability
plan or worker's compensation plan.
(b) Early Retirement Benefit--A Member who has attained age fifty-five and
has completed ten or more continuous years of Service may elect to
retire on the first day of any month prior to the Member's Normal
Retirement Date, upon written election filed with, and subject to the
approval of, the Compensation Committee. The Compensation Committee,
at its discretion, may withhold such approval, but in no event beyond
age sixty-two. Upon such retirement, the Member shall be entitled to
receive a monthly Retirement Benefit determined as provided in clauses
(i), (ii) and (iii) of paragraph (a) above, reduced as follows:
(i) by four percent of such amount for each year (prorated
on a monthly basis for parts of a year) by which such
commencement of benefits precedes the Member's Normal
Retirement Date; and
(ii) there shall then be made the reductions provided in
clauses (iv) and (v) of paragraph (a) above.
(c) Postponed Retirement Benefit--A Member who retires after the Normal
Retirement Date will receive monthly the same dollar amount of
Retirement Benefit that would have been payable had the Member's
retirement not been postponed, except that such Member's years of
Service shall include all years of Service (up to a maximum of fifteen
years) prior to such Member's actual retirement.
(d) Surviving Spouse Benefit--If a Member with ten or more continuous
years of Service dies after age fifty-five, either before or after
retirement, the Member's qualifying spouse will receive a Surviving
Spouse Benefit for life if the Member did not, at the time of death,
have in effect a valid election to receive an optional form of joint
and survivor annuity pursuant to Section 5. A "qualifying spouse" is
the spouse of a Member at the Member's death who has been lawfully
married to the Member throughout the one-year period ending on the
earlier of the Member's death or Normal Retirement Date. The Surviving
Spouse Benefit shall commence on the first day of the month following
the Member's death and terminate with the payment for the month in
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which the spouse's death occurs. Such benefit amount shall equal
one-half of the Retirement Benefit which would have been payable if
the Member had been living and had commenced receipt of benefits on
the date of death, reduced by one percent of such benefit for each
full year in excess of ten that the date of birth of such surviving
spouse occurred after that of the deceased Member.
(e) For the purposes of paragraphs (a), (b) and (c) of Section 4, the
payment of any benefit provided under this Plan will commence on the
first day of the month following the month in which retirement occurs.
The final payment will be the payment made on the first day of the
month in which death occurs.
5. Optional Forms of Benefits
Instead of the Retirement Benefit with Surviving Spouse Benefit
provided in Section 4, a Member may elect, effective upon the
attainment of age fifty-five with ten or more continuous years of
Service, to receive an actuarially determined Retirement Benefit to
provide an optional surviving spouse or contingent annuitant benefit,
which benefits to a spouse or contingent annuitant shall be paid upon
the Member's death, whether before or after retirement. The optional
surviving spouse or contingent annuitant benefit shall be actuarially
adjusted to take into account the amount to be continued as well as the
ages of the spouse or contingent annuitant and the Member. The optional
forms of benefits are as follows:
(a) Surviving Spouse: The Retirement Benefit may be actuarially reduced to
provide a benefit to a qualifying surviving spouse equal to:
(i) the benefit the Member would have been entitled to receive, or
(ii) two-thirds of the benefit the Member would have been entitled to
receive.
(b) Contingent Annuitant: With the written consent of a spouse, if any, a
member may designate a person other than a qualifying spouse to be a
contingent annuitant, in which case the Retirement Benefit will be
actuarially reduced to provide a benefit to the contingent annuitant
equal to:
(i) the benefit the Member would have been entitled to receive,
or
(ii) two-thirds of the benefit the Member would have been entitled to
receive, or
(iii)one-half of the benefit the Member would have been entitled to
receive.
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Any actuarial reduction in benefits made pursuant to this Section 5
shall be made in accordance with the actuarial assumptions used in
computing alternative forms of benefits under the Homestake Retirement
Plan at the time that such reduction is made.
6. Benefit Increases
It is anticipated that the retirement benefits payable to Member
hereunder will exceed those to which Member is entitled pursuant to the
Homestake Retirement Plan, the Supplemental Retirement Plan or any
other retirement plans from time to time in effect and its employment
policies generally and, in the event that Member becomes entitled to
retirement benefits under said plans and policies which benefits at any
time or from time to time are greater than those herein provided, no
additional benefits shall be payable under this Plan. If at any time
the Company increases the benefits paid to persons then retired under
the Company's retirement plans generally or to then retired senior
executives generally, such increases shall be applied pro rata to all
of the Retirement Benefits payable to Members hereunder. For purposes
of this section 6, any annual adjustment to the Member's retirement
benefits under the Homestake Retirement Plan will also apply to
Retirement Benefits payable hereunder.
7. Termination of Service
A Member who ceases to be employed by the Company for any reason (other
than retirement or early retirement under the provisions of Section 4
of this Plan), after attaining age fifty-five and having completed ten
or more continuous years of Service shall be entitled, with the
approval of the Compensation Committee as provided in Section 4(b), to
receive early Retirement Benefits as provided in Section 4(b). With the
approval of the Compensation Committee the terminated Member may elect
to begin receiving benefits on the Normal Retirement Date, such benefit
will be calculated based on the Member's actual years of continuous
service and earnings, up to the date of termination.
Any Member who ceases to be employed by the Company or Affiliates for
any reason before completion of ten continuous years of Service and age
fifty-five shall cease to be a Member and shall not be entitled to
received any benefits under this Plan except for any benefits to which
such Member may become entitled through re-employment.
8. Withdrawal Election
A Member or his or her Beneficiary, as the case may be, may elect, at
any time after he or she commences to receive benefits payments under
this Plan, to receive those payments in a lump sum, based on the
actuarial equivalent of his or her remaining vested benefits less a 10%
penalty (as described below). No election to partially accelerate
benefits shall be allowed. The Member shall make this election by
giving the Plan Administrator written notice of the election
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in a form determined from time to time by the Plan Administrator. The
penalty shall be equal to 10% of the lump sum actuarial equivalent
of the Member's remaining vested benefit.
Any actuarial reduction in benefits made pursuant to this Section 8
shall be made in accordance with the actuarial assumptions used in
computing lump sum payments under the Homestake Retirement Plan at the
time such lump sum payment is made. The Member shall be paid the
reduced Benefit Amount within 60 days of his or her election. Once such
is paid, the Member's participation in the Plan shall terminate and the
Member shall not be eligible to participate in the Plan in the future.
9. Suspension or Termination of Benefits
If the Compensation Committee determines that a Member otherwise
entitled to benefits under the Plan is engaged actively or proposes to
engage actively, directly or indirectly in activities which may be
detrimental to the interests of the Company, it shall give such person
written notice of the grounds for its determination. The Compensation
Committee shall afford such person an opportunity to submit to it
within 60 days thereafter a written statement of reasons why such
person considered such determination to be incorrect. After considering
such written statement and any other information which it determines to
be relevant, the Compensation Committee shall have the right to
terminate benefits otherwise payable under the Plan or to suspend them
for such period as it determines to be appropriate. The Compensation
Committee shall advise such person of its action. Any determination by
the Compensation Committee to suspend or terminate benefits shall be
final and binding upon the Member.
10. Trust
The Company may establish one or more grantor Trusts and the Company
and Affiliates shall at least annually transfer over to the Trust such
assets as the Company and Affiliates determine, in their sole
discretion, are necessary to provide for the Company's and Affiliates
future liabilities created under the Plan, provided the assets of the
Trust shall be considered part of the general assets of the Company and
Affiliates subject to the claims of its general creditors.
The provisions of the Plan shall govern rights of a Member to receive
distributions pursuant to the Plan. The provisions of the Trust shall
govern the rights of the Members and the creditors of the Company and
Affiliates to the assets transferred to the Trust. The Company and
Affiliates shall at all times remain liable to carry out its
obligations under the Plan. The Company's and Affiliate's obligations
under the Plan may be satisfied with Trust assets distributed pursuant
to the terms of the Trust.
11. Administration and Interpretation
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This Plan is intended to qualify for exemption from Parts II, III and
IV of the Employee Retirement Income Security Act of 1974, as amended,
as a plan maintained primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated
employees under Sections 201(2), 301(a)(3) and 401(a)(1) of such Act,
and shall be so interpreted.
This plan shall be administered by the Compensation Committee. The
Committee shall have the discretion and authority to make, amend,
interpret and enforce all appropriate rules and regulations for the
administration of this Plan and decide or resolve any and all questions
including interpretations of this Plan, as may arise in connection with
the Plan.
In the administration of this Plan, the Committee may, from time to
time, employ agents and delegate to them such administrative duties as
it sees fit and may, from time to time, consult with counsel who may be
counsel to the Company.
The decision or action of the Committee with respect to any question
arising out of or in connection with the administration, interpretation
and application of the Plan and the rules and regulations promulgated
hereunder shall be final and conclusive and binding upon all persons
having any interest in the Plan.
The Company and Affiliates shall indemnify and hold harmless each
member of the Committee against any and all claims, losses, damages,
expenses or liabilities arising from any action or failure to act with
respect to this Plan, except in the case of willful misconduct by that
member.
To enable the Committee to perform its functions, the Company and
Affiliates shall supply full and timely information to the Committee on
all matters relating to the compensation of its Members, the date and
circumstances of the retirement, disability, death or termination of
employment of its Members, and such other pertinent information as the
Committee may reasonably require.
12. Termination of Plan
The Company and Affiliates reserves the right to change or terminate
the Plan, or both, at any time. The Company and Affiliates shall
promptly notify Members of any change or termination. Any change or
termination will not affect benefits vested on the effective date of
change or termination, but any benefits or expected benefits not then
vested shall be modified or extinguished as the case may be. For this
purpose, the Normal Retirement Benefit shall be deemed vested when a
Member reaches age sixty-five or both completes ten continuous years of
Service and reaches age sixty-two, and the Early Retirement Benefit
shall be deemed vested when a Member completes ten continuous years of
Service and reaches age fifty-five.
13. Effects of Dissolution, Liquidation or Reorganization
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Notwithstanding any other provision of the Plan, if the Company is
dissolved or liquidated or is a party to a Reorganization and if (i)
the Company's successor does not, by operation of law or prior
agreement, assume the Company's obligations with respect to this Plan
or (ii) the Member's employment is terminated for any reason or for no
reason by the Member or by such successor within two years following
the occurrence of such dissolution, liquidation or Reorganization, the
benefits of each member affected thereby under this Plan shall vest
fully as if each member's Service had continued until the Normal
Retirement Date (but in no event for more than a total of 15 years of
Service) but shall be calculated based on each Member's highest average
monthly Compensation over any thirty-six consecutive month period of
actual employment prior to the vesting date, or, if employed for less
than thirty-six consecutive months at such time, the period of such
Member's actual employment. No termination or modification of this Plan
shall affect the rights of a Member to then-vested benefits pursuant to
the preceding sentence.
Benefits so vested pursuant to this Section 13 shall be payable
commencing on the later of attainment of age fifty-five or the first
day of the month following the vesting event, or at such later time as
a Member alone may elect; provided, however, that in computing such
benefits the amount computed pursuant to clauses (i), (ii) and (iii) of
Section 4(a) hereof, as modified in this Section 14, shall be reduced
by 4% for each year (prorated on a monthly basis for parts of a year)
by which such commencement of benefits precedes such Member's Normal
Retirement Date, and then reduced as provided in clauses (iv) and (v)
of Section 4(a).
Any Member who is employed by a successor organization shall be
entitled to the retirement benefits of such organization without offset
of benefits provided under this Plan and to the extent benefits
otherwise receivable from such organization are reduced, benefits under
this Plan shall be correspondingly increased.
14. General Provisions
Members and their Beneficiaries, heirs, successors and assigns shall
have no legal or equitable rights, interest or claims in any property
or assets of the Company or Affiliate's. With respect to the Plan, any
Plan Agreement and the Trust, any and all of the Company's or
Affiliate's assets shall be, and shall remain, the general, unpledged
unrestricted assets of the Company or Affiliate's, except as provided
by the Trust. The Company's or Affiliate's obligation under the Plan
shall be merely that of an unfunded and unsecured promise to pay money
in the future.
The Company's or Affiliate's liability for the payment of benefits
shall be defined only by the Plan. The Company or Affiliate's shall
have no obligation to a Member under the Plan except as expressly
provided in the Plan.
Neither a Member nor any other person shall have any right to commute,
sell, assign, transfer, pledge, anticipate, mortgage or otherwise
encumber, transfer, hypothecate or convey in advance of actual receipt,
the amounts, if any, payable hereunder, or any part thereof, which are,
and all rights to which are, expressly declared to be unassignable and
non-transferable,
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except that the foregoing shall not apply to any family support
obligations set forth in a court order. No part of the amounts payable
shall, prior to actual payment, be subject to seizure or sequestration
for the payment of any debts, judgments, alimony or separate
maintenance owed by a Member or any other person, nor be transferable
by operation of law in the event of a Member's or any other person's
bankruptcy or insolvency.
The terms and conditions of this Plan shall not be deemed to constitute
a contract of employment between the Company or any Affiliate and the
Member. Such employment is an "at will" employment relationship that
can be terminated at any time for any reason, with or without cause,
unless expressly provided in a written employment agreement. Nothing in
this Plan shall be deemed to give a Member the right to be retained in
the service of any Company or Affiliate or to interfere with the right
of any Company or Affiliate to discipline or discharge the Member at
any time.
A Member will cooperate with the Company or Affiliate by furnishing any
and all information requested by the Company or Affiliate and take such
other actions as may be requested in order to facilitate the
administration of the Plan and the payments of benefits hereunder,
including but not limited to taking such physical examinations as any
Company or Affiliate may deem necessary.
Whenever any words are used herein in the masculine, they shall be
construed as though they were in the feminine in all cases where they
would so apply; and wherever any words are used herein in the singular
or in the plural, they shall be construed as though they were used in
the plural or the singular, as the case may be, in all cases where they
would so apply.
The captions of the articles, sections and paragraphs of this plan are
for convenience only and shall not control or affect the meaning or
construction of any of its provisions.
The provisions of this Plan shall be construed and interpreted
according to the laws of the State of California.
In case any provision of this Plan shall be illegal or invalid for any
reason, said illegality or invalidity shall not affect the remaining
parts hereof, but this Plan shall be construed and enforced as if such
illegal and invalid provision had never been inserted herein.
Any notice or filing required or permitted to be given to the Committee
under this Plan shall be sufficient if in writing and hand-delivered,
or sent by registered or certified mail, to the address below:
Homestake Mining Company
Attn: Compensation Committee
650 California Street
San Francisco, CA 94108
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Such notice shall be deemed given as of the date of delivery
or, if delivery is made by mail, as of the date shown on the
postmark on the receipt for registration or certification.
Any notice or filing required or permitted to be given to a
Member under this Plan shall be sufficient if in writing and
hand-delivered, or sent by mail, to the last known address of
the Member.
The provisions of this Plan shall bind and inure to the benefit of the
Company and Affiliates and their successors and assigns and the Member,
the Member's Beneficiaries, and their permitted successors and assigns.
The interest in the benefits hereunder of a spouse of a Member who has
predeceased the Member shall automatically pass to the Member and shall
not be transferable by such spouse in any manner, including but not
limited to such spouse's will, nor shall such interest pass under the
laws of intestate succession.
If a benefit under this Plan is to be paid to a minor, a person
declared incompetent or to a person incapable of handling the
disposition of that person's property, the Committee may direct payment
of such benefit to the guardian, legal representative or person having
the care and custody of such minor, incompetent or incapable person.
The Committee may require proof of minority, incompetency, incapacity
or guardianship, as it may deem appropriate prior to distribution of
the benefit. Any payment of a benefit shall be a payment for the
account of the Member and the Participant's Beneficiary, as the case
may be, and shall be a complete discharge of any liability under the
Plan for such payment amount.
15. Distribution in the Event of Taxation
If, for any reason, all or any portion of a Member's benefit under this
Plan becomes taxable to the Member prior to receipt, a Member may
petition the Committee for a distribution of assets sufficient to meet
the Participant's tax liability (including additions to tax, penalties
and interest). Upon the grant of such a petition, which grant shall not
be unreasonably withheld, the Company and Affiliate shall distribute to
the Member immediately available funds in an amount equal to the
Member's federal, state and local tax liability associated with such
taxation (which amount shall not exceed a Participant's accrued benefit
under the Plan), which liability shall be measured by using that
Member's then current highest federal, state and local marginal tax
rate, plus the rates or amounts for the applicable additions to tax,
penalties and interest. If the petition is granted, the tax liability
distribution shall be made within 90 days of the date when
Participant's petition is granted. Such a distribution shall affect and
reduce the benefits to be paid under Article 3.
16. Claims Procedure
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If a Member or Beneficiary ("Claimant") believes that he or she is
entitled to a benefit or greater benefit as the case may be, under the
Plan, the Claimant may submit a signed, written application to the
Committee within 90 days of having been denied such benefit. The
Claimant will generally be notified of the approval or denial of this
application within 90 days of the date that the Committee receives the
application. If the claim is denied, the denial will state specific
reasons for the denial and the Claimant will have 60 days to file a
signed, written request for a review of the denial with the Committee.
This request should include the reasons for requesting a review, facts
supporting the request and any other relevant comments. The Committee,
operating pursuant to its discretionary authority to administer and
interpret the Plan and to determine eligibility for benefits under the
terms of the Plan, will generally make a final, written determination
of the Claimant's eligibility for benefits within 60 days of receipt of
the request for review.
17. Arbitration
Any controversy between a participant and the Company or Affiliates
involving the construction or application of any of the terms,
provisions, or conditions of this Plan shall be settled by arbitration
in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, then in effect, and judgment on the award
rendered by the arbitrator(s) may be entered by any court having
jurisdiction thereof. The exclusive place of arbitration shall be San
Francisco, California. The expenses reasonably incurred by both parties
in connection with arbitration, including attorney fees, shall be borne
by the Company or Affiliates.
IN WITNESS WHEREOF, Homestake Mining Company has adopted this Amended
and Restated Executive Supplemental Retirement Plan, effective August 1, 1995.
HOMESTAKE MINING COMPANY
___________________________ By: __________________________
Date of Execution Chairman and
Chief Executive Officer
___________________________ By: __________________________
Date of Execution Vice President
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