AMENDED 1999 EXECUTIVE SUPPLEMENTAL RETIREMENT PLAN
HOMESTAKE MINING COMPANY
EFFECTIVE APRIL 1, 1999, AMENDED AS OF SEPTEMBER 1, 1999
HOMESTAKE MINING COMPANY
AMENDED 1999 EXECUTIVE SUPPLEMENTAL RETIREMENT PLAN
1. This Amended 1999 Executive Supplemental Retirement Plan for
designated key executives of Homestake Mining Company is
effective as of April 1, 1999, and amended as of September
1, 1999 (the "Plan").
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 Homestake Mining Company of
California, Homestake Canada Inc., Homestake Gold of
Australia Limited, Plutonic Resources Limited, and any
other affiliated organizations designated by the
Committee to participate in the Plan.
(b) "Board" means the Board of Directors of Homestake
Mining Company.
(c) "Change of Control" means any of the following
events (except as specifically provided elsewhere):
(i) The Company or any of its Subsidiaries is a party
to a consolidation or merger or other combination,
or there is an acquisition by the Company or any
of its Subsidiaries of another corporation or
entity or its assets, or there is any other
corporate reorganization or acquisition
transaction in which the Company or any of its
Subsidiaries is a participant, under the terms of
which capital stock having less than 62.5% of the
voting power in election of directors in the
Company or the resulting or surviving publicly
held corporation or entity (if not the Company) is
held by the Stockholders of the Company
immediately preceding such event;
(ii) At least 75% in fair market value of the Company's
assets are sold; or
(iii)Capital stock having at least 25% in voting
power in election of directors of the Company is
acquired by any one person or group as that term
is used in Rule 13d-5 under the Securities
Exchange Act of 1934.
For purposes of this Plan, holders of Homestake Canada
Inc. Exchangeable Shares shall be deemed to be
Stockholders of Homestake.
(d) "Company" or "Homestake" means Homestake Mining Company.
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(e) "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.
(f) "Compensation" means all regular base salary and
performance bonuses paid under the Homestake Variable
Pay Plan which are or would be reported on Form W-2 (or
comparable form) for any calendar year; any pre-tax
reductions of such compensation made pursuant to
election under a Section 401(k), Cafeteria, Deferred
Income or similar plan; and any amount of cash bonus
for such year under the Homestake Variable Pay Plan
that has been foregone in lieu of restricted stock
awards. "Compensation" does not include: directors'
fees; amounts resulting or relating to exercise of or
vesting in stock options, stock appreciation rights or
other restricted stock rights under stock option and
share rights plans (including stock received on vesting
of restricted stock awards received in lieu of cash
bonuses foregone); relocation or signing bonuses; loan
forgiveness amounts; tax gross-up payments; tax
equalization payments; other fees and commissions; and
any other payments (or deemed payments) not described
in the preceding sentence.
(g) "Normal Retirement Date" means, with respect to a
Participant, the first day of the calendar month
coincident with or next following the first date on
which the Participant has both attained age 62 and
attained a Vesting Event.
(h) "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 in the Plan by the Committee, and who
agrees to be a participant in the Plan.
(i) "Prior Plan" means the Amended and Restated Executive
Supplemental Retirement Plan effective August 1, 1995,
as modified January 23, 1998.
(j) "Retirement Benefit" means the benefits payable
under this Plan, calculated in accordance with Section 4.
(k) "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.
(l) "Reorganization Vesting Events" has the meaning set out
in Section 13 hereof.
(m) "Service" means all periods of employment with the
Company and any Affiliate and any other entity
designated by the Committee.
(n) "Subsidiary" means any corporation or other entity that
is controlled by the Company.
(o) "Vesting Event" means the earliest of the following dates:
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(i) A Participant has attained age 55 and has
completed 10 years of Service;
(ii) A Participant has been a Participant in the Plan
(and/or the Prior Plan) for five years and has
completed 15 years of Service; or
(iii)A Participant has attained age 55 and has
been a Participant in the Plan (and/or the Prior
Plan) for five years.
4. RETIREMENT BENEFIT
(a) Normal Retirement Benefit. A Participant who
retires at the Normal Retirement 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 15
years) by
(iii)the average monthly
Compensation paid to the Participant during
the period of his 36 consecutive months of
highest Compensation (or, if employed for
less than 36 consecutive months, the period
of such Participant's actual employment);
The monthly Retirement Benefit thus calculated
shall be reduced by:
(iv) commencing on the Participant's
attainment of age 65, (x) 50% of the
primary insurance amount of United
States Social Security which the Participant
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") benefits which the
Participant 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 Participant's attainment of 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.
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(b) Early Retirement Benefit. A Participant who has
attained a Vesting Event and who is not employed by the
Company or any of its Affiliates at the time Retirement
Benefits are proposed to commence may request
commencement of Retirement Benefits on the first day of
any month after the Participant has attained age 55, by
written request filed with, and subject to the approval
of, the Committee. The Committee, at its discretion,
may withhold such approval, but in no event beyond age
62. If the request is approved, the Participant 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 4% of such amount for each
year (prorated on a monthly basis for parts
of a year) by which such commencement of
benefits precedes the Participant's Normal
Retirement Date; and
(ii) there shall then be made the
reductions provided in clauses (iv) and (v)
of paragraph (a) above.
Notwithstanding the foregoing, if the Committee
withholds such approval, the Participant may
nonetheless elect to commence receiving early
Retirement Benefits on the date requested (or 30 days
after the election, whichever is later), provided that,
in addition to the reductions set out in clauses (i)
and (ii) of this paragraph (b), the Retirement Benefit
shall be subject to an additional penalty reduction of
1% for each year (prorated on a monthly basis for parts
of a year) by which such commencement of benefits
precedes the Participant's Normal Retirement Date, up
to a maximum additional reduction of 5%. Such
election must be made within 30 days after the
Participant receives notice from the Committee
withholding such approval.
(c) Postponed Retirement Benefit. A Participant who
retires after the Normal Retirement Date shall receive
a Retirement Benefit calculated as provided in
paragraph (a), recognizing all years of Service (up to
a maximum of fifteen years) and Compensation paid prior
to the Participant's actual retirement.
(d) Surviving Spouse Benefit. If a Participant who
has attained a Vesting Event or a Reorganization
Vesting Event dies, either before or after commencement
of Retirement Benefits, the Participant's qualifying
spouse shall receive a Surviving Spouse Benefit for
life if the Participant 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
Participant at the Participant's death who has been
lawfully married to the Participant throughout the one-
year period ending on the Participant's death. If the
Participant had previously commenced receiving
Retirement Benefits, the Surviving Spouse Benefit shall
commence on the first day of the month following the
Participant's death. If the Participant had not
previously commenced receiving Retirement Benefits, the
Surviving Spouse Benefit shall commence on the first
day of the month following
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the month in which the
Participant's Normal Retirement date would have
occurred or, at the election of the Spouse in
accordance with the procedures set out in paragraph (b)
above, at any time after what would have been the
Participant's 55th birthday. In all instances, the
Surviving Spouse Benefit shall terminate with the
payment for the month in which the spouse's death
occurs. If the Participant was receiving Retirement
Benefits at the time of the Participant's death, the
Surviving Spouse Benefit shall equal one-half of the
Retirement Benefit then being paid to the Participant,
subject to further reduction as hereafter provided. If
the Participant was not receiving Retirement Benefits
at the time of the Participant's death, the Surviving
Spouse Benefit shall equal one-half of the Retirement
Benefit which would have been payable if the
Participant had been living and had commenced receipt
of benefits on the date of commencement of the
Surviving Spouse Benefit, subject to further reduction
as hereafter provided. Notwithstanding the foregoing,
the Surviving Spouse Benefit shall be reduced by one
percent of such benefit for each full year in excess of
ten that the date of birth of the surviving spouse
occurred after the date of birth of the deceased
Participant.
(e) For the purposes of paragraphs (a), (b) and (c) of
Section 4, the payment of any benefit provided under
this Plan shall commence on the first day of the month
following the month in which retirement occurs or the
month in which the election to receive Retirement
Benefits is made. The final payment shall 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 Participant may elect to
receive an actuarially equivalent Retirement Benefit.
Benefits paid to a surviving spouse or contingent annuitant
shall be governed by the optional form of benefit elected.
The election may be made at any time and may be changed at
any time prior to the commencement of payment of benefits.
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 Participant
would have been entitled to receive, or
(ii) two-thirds of the benefit the
Participant would have been entitled to
receive.
(b) Contingent Annuitant. With the written consent of
a spouse, if any, a Participant 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 Participant
would have been entitled to receive, or
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(ii) two-thirds of the benefit the
Participant would have been entitled to
receive, or
(iii)one-half of the benefit
the Participant would have been entitled to
receive.
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
Participants hereunder will exceed those to which
Participants are 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 any
Participant 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 Participants hereunder. For purposes of
this section 6, any annual adjustment to the Participants'
retirement benefits under the Homestake Retirement Plan will
also apply to Retirement Benefits payable hereunder.
7. TERMINATION OF SERVICE
A Participant who ceases to be employed by the Company or
any Subsidiary or Affiliate for any reason after having
attained a Vesting Event or a Reorganization Vesting Event
shall be entitled to receive Retirement Benefits as provided
in Section 4 or Section 13. Any Participant who ceases to
be employed by the Company or any Subsidiary or Affiliate
for any reason before having attained a Vesting Event or a
Reorganization Vesting Event shall cease to be a Participant
and shall not be entitled to received any benefits under
this Plan except for any benefits to which such Participant
may become entitled through re-employment.
8. ACCELERATED PAYMENT AND LUMP SUM ELECTIONS.
(a) A Participant or his or her Beneficiary, as the case
may be, may request, at any time after he or she
becomes eligible to receive benefits payments under
this Plan (including an early Retirement Benefit under
Section 4(b)), to receive payments in a lump sum or in
equal monthly installment payments over 10 years, based
on the actuarial equivalent of his or her remaining
vested benefits. Payments may not begin prior to the
date that is or would have been the Participant's 55th
birthday. The written request shall be filed with and
be subject to the approval of, the Committee.
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The Committee, at its discretion, may withhold such
approval. Notwithstanding the foregoing, if the
Committee withholds such approval, the Participant or
Beneficiary may nonetheless elect to receive such
accelerated or lump sum benefits on the date requested
(or 30 days after the election, whichever is later),
provided that, in addition to the reductions set out in
clauses (i) and (ii) of Section 4(b), the amount of the
Retirement Benefit (determined prior to actuarial
adjustment) shall be subject to an additional penalty
reduction of (i) 1% for each year (prorated on a
monthly basis for parts of a year) by which
commencement of such accelerated or lump sum benefits
precedes the date that is or would have been the
Participant's 62nd birthday, subject to a minimum
reduction of 3% and a maximum reduction of 5%, and (ii)
3% as to any other Participant. Such election must be
made within 30 days after the Participant or
Beneficiary receives notice from the Committee
withholding such approval.
(b) Actuarial equivalence shall be determined in accordance
with the actuarial assumptions used in computing lump
sum payments under the Homestake Retirement Plan at the
time such accelerated payments begin or such lump sum
payment is made. Such actuarial benefit shall be paid
(or commence to be paid) within 60 days of his or her
election.
9. SUSPENSION OR TERMINATION OF BENEFITS
If the Committee determines that a Participant 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 Committee shall afford
such person an opportunity to submit to it within 60 days
thereafter a written statement of reasons why such person
considers such determination to be incorrect. After
considering such written statement and any other information
which it determines to be relevant, the 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 Committee shall advise such person of
its action. Any determination by the Committee to suspend or
terminate benefits shall be final and binding upon the
Participant.
10. TRUST
(a) The Company shall 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.
(b) The provisions of the Plan shall govern rights of a
Participant to receive distributions pursuant to the
Plan. The provisions of the Trust shall govern the
rights of the Participants and the creditors of the
Company and Affiliates to the assets transferred
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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 Affiliates' obligations under
the Plan may be satisfied with Trust assets distributed
pursuant to the terms of the Trust.
11. ADMINISTRATION AND INTERPRETATION
(a) 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.
(b) This Plan shall be administered by the 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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 Participants, the date and
circumstances of the retirement, disability, death or
termination of employment of its Participants, 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 Participants of any change
or termination. Any change or termination will not affect
benefits vested on the effective date of change or
termination, but, except as provided in Section 13(a), any
benefits or expected benefits not then vested shall be
modified or extinguished as the case may be. For this
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purpose, benefits shall be deemed vested when a Participant
has attained a Vesting Event or a Reorganization Vesting
Event.
13. EFFECTS OF DISSOLUTION, LIQUIDATION OR CHANGE OF CONTROL
(a) Notwithstanding any other provision of the Plan, if the
Company is dissolved or liquidated or is a party to a
Change of Control and if (i) the Company's successor
does not, by operation or law or prior agreement,
assume the Company's obligations with respect to the
Plan, or (ii) a Participant's employment is terminated
for any reason or no reason by the Participant or by
such successor within two years following the
occurrence of such dissolution or liquidation, or (iii)
a Participant's employment is terminated under
circumstances described in Section 13(b) within two
years following the occurrence of a Change of Control
(collectively, "Reorganization Vesting Events" and
individually a "Reorganization Vesting Event"), the
benefits under the Plan of each Participant affected
thereby shall vest fully as if such Participant had a
total of 15 years of Service, and shall be calculated
based on such Participant's highest average monthly
Compensation over any 36 consecutive month period of
actual employment prior to the Reorganization Vesting
Event or, if the Participant has been employed for less
than 36 consecutive months at such time, the period of
such Participant's actual employment. No termination
or modification of the Plan shall affect the rights of
a Participant to then-vested benefits pursuant to the
preceding sentence. If the Company is dissolved or
liquidated or is a party to a Change of Control then,
as to that event, the 1999 Plan may not be terminated
or amended to reduce the benefits provided hereunder
during the two year period following that event.
(b) If a Participant's employment is terminated under the
following circumstances within two years following the
occurrence of a Change of Control, any unvested
benefits of such Participant under the Plan shall vest
fully if:
(i) The Participant's employment is terminated
involuntarily for reasons other than death,
disability or discharge for "Good and Sufficient
Cause" (as defined below); or
(ii) The Participant voluntarily chooses to terminate
employment for "Good Reason" (as defined below).
(c) 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
Reorganization Vesting Event; provided, however, that
the amount of such benefits shall be reduced as
provided in clauses (i) and (ii) of Section 4(b) hereof
for any Participant for whom commencement of benefits
precedes such Participant's Normal Retirement Date.
Sections 4(d) and (e) and Sections 5 and 6 shall apply
to benefits payable pursuant to this Section 13.
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(d) Any Participant or his or her Beneficiary, as the case
may be, receiving or entitled to receive benefits under
this Section 13 may request, at any time, to receive
payments in a lump sum or in equal monthly installment
payments over 10 years, based on the actuarial
equivalent of his or her remaining vested benefits.
Payments may not begin prior to the date that is or
would have been the Participant's 55th birthday. The
written request shall be filed with and be subject to
the approval of, the Committee. The Committee, at its
discretion, may withhold such approval. Notwithstanding
the foregoing, if the Committee withholds such
approval, the Participant or Beneficiary may
nonetheless elect to receive such accelerated or lump
sum benefits on the date requested (or 30 days after
the election, whichever is later), provided that, in
addition to the reductions set out in clauses (i) and
(ii) of Section 4(b), the amount of the Retirement
Benefit (determined prior to actuarial adjustment)
shall be subject to an additional penalty reduction of
(i) 1% for each year (prorated on a monthly basis for
parts of a year) by which commencement of such
accelerated or lump sum benefits precedes the date that
is or would have been the Participant's 62nd birthday,
subject to a minimum reduction of 3% and a maximum
reduction of 5%, and (ii) 3% as to any other
Participant. Such election must be made within 30 days
after the Participant or Beneficiary receives notice
from the Committee withholding such approval. Actuarial
equivalence shall be determined in accordance with the
actuarial assumptions used in computing lump sum
payments under the Homestake Retirement Plan at the
time such accelerated payments begin or such lump sum
payment is made. Such actuarial benefit shall be paid
(or commence to be paid) within 60 days of his or her
election.
(e) Notwithstanding the foregoing, if a Participant or
Beneficiary fails to make any request or election under
clause (d) of this Section 13 and the federal, state,
provincial or local taxing authorities for the
Participant's or Beneficiary's jurisdiction of
residence subsequently contends that the Participant or
Beneficiary had constructive receipt of benefits
hereunder because of the rights provided by clause (d),
then the Participant or Beneficiary may elect a lump
sum with respect to the actuarial equivalent of his or
her remaining vested benefits hereunder within 30 days
receiving notice of such contention. Such lump sum
will be paid within 30 days of receipt of the
Participant's or Beneficiary's written election to
receive such lump sum, accompanied by a copy of the
notice from the applicable taxing authority.
(f) As used herein:
(i) "Good and Sufficient Cause" means any act of fraud
or dishonesty, or conviction of a felony involving
moral turpitude or a Participant knowingly
engaging in acts seriously detrimental to any of
the operations of the Company.
(ii) Voluntary termination of employment by a
Participant for "Good Reason" means termination
after a Change of Control of the Company following the
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occurrence of one of the following events
without the Participant's express written consent:
(A) The assignment by the Company to the
Participant of any duties inconsistent with
the Participant's positions, duties,
responsibilities, and status with the Company
immediately prior to the Change of Control;
provided, however, that for purposes of this
subclause (A), the amount "50%" shall be
substituted for "62.5%" in Section 3(c)(i)
above (definition of "Change of Control") and
Sections 3(c)(ii) and (iii) shall not apply;
(B) A material reduction in the Participant's
responsibilities, titles, or offices as in
effect immediately prior to the Change of
Control, or any removal of the Participant
from or any failure to re-elect the
Participant to any such positions, except in
connection with the involuntary termination
of the Participant's employment for Good and
Sufficient Cause, or as a result of the
Participant's death, disability or
retirement, or voluntary termination by the
Participant for other than Good Reason;
provided, however, that for purposes of this
subclause (B), the amount "50%" shall be
substituted for "62.5%" in Section 3(c)(i)
above (definition of "Change of Control");
(C) A reduction by the Company in the
Participant's base salary as in effect
immediately prior to the Change of Control;
(D) If there has been a change in the principal
executive office of the Company to a location
more than 50 miles from the location of the
principal executive office of the Company
immediately prior to the Change of Control,
the requirement by the Company that the
Participant be based anywhere other than
within a 50-mile radius of your location
immediately prior to the Change of Control,
except for required travel on the Company's
business to an extent substantially
consistent with the Participant's business
travel obligations immediately prior to the
Change of Control; provided, however, that
this subclause (D) shall not apply if the new
location at which the Participant is to be
based is as close to or closer to the
Participant's principal residence than the
prior location at which the Participant was
based;
(E) The requirement by the Company that the
Participant be based anywhere other than
within a 50-mile radius of the Participant's
location immediately prior to the Change of
Control, except for required travel on the
Company's business to an extent substantially
consistent with the Participant's travel
obligations immediately prior to the Change
of Control; provided, however,
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that for purposes of this subclause (E), the
amount "50%" shall be substituted for "62.5%" in
Section 3(c)(i) above (definition of "Change
of Control") and Sections 3(c)(ii) and (iii)
shall not apply; and provided, further, that
this subclause (E) shall not apply if the new
location at which the Participant is to be
based is as close to or closer to the
Participant's principal residence than the
prior location at which the Participant was
based; or
(F) The failure by the Company to continue in
effect, or a change of the Participant's
participation or benefits under, any bonus or
incentive compensation plan, any employee
benefit plan qualified under Section 401 (a)
of the Internal Revenue Code of 1954, as
amended from time to time (the "Code"), any
stock ownership, stock purchase, stock option
or other equity incentive plan, any life,
health, accident, disability or similar plan
providing welfare benefits or any plan or
program of fringe benefits in which the
Participant participates immediately prior to
a Change of Control ("Existing Plans"), the
effect of which would be to materially reduce
the total value, in the aggregate, of the
Participant's benefits under all Existing
Plans and all amendments thereto and plans
substituted therefor, as compared to the
Participant's benefits under Existing Plans
as they existed immediately prior to the
Change of Control, or the failure by the
Company to provide the Participant with the
number of paid vacation days to which the
Participant was entitled in accordance with
the Company's general vacation policy for key
executives in effect immediately prior to the
Change of Control.
(g) Some or all of the events which constitute a Change of
Control for purposes of this Plan also may constitute a
change of control under Sections 280G and 4999 of the
Internal Revenue Code ("Code") and related proposed
regulations ("Regulations"). In the event a Change of
Control occurs which also constitutes a change of
control under the Code and Regulations and which
subjects a Participant or Beneficiary to excise taxes
under the Code and Regulations, the Participant or
Beneficiary will be entitled to receive a "gross-up
payment" in an amount sufficient to pay the excise tax,
the taxes (including the excise tax) on the gross-up
payment, and any related interest and penalties.
Whether a Participant or Beneficiary is subject to the
excise tax and the amount of the gross-up payment shall
be determined by a law firm, a certified public
accounting firm, and/or a firm of recognized executive
compensation consultants selected by the Company (the
"Consultant"). Determinations of the Consultant shall
be binding upon the Participant or Beneficiary and the
Company. Unless the Consultant concludes that a
contrary method is clearly preferable, the gross-up
payment shall be calculated on the assumption that the
Participant or Beneficiary is subject to tax at the sum
of the maximum marginal tax rates applicable to the
state of residence of the Participant or Beneficiary,
with no adjustment for the amount of income, for
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the deduction of state taxes on a federal return, for the
deduction of federal tax on a state return, for the
loss of itemized deductions or exemptions, or for any
other purpose, and the Company shall make the gross-up
payment in a lump sum within 10 days of receipt of the
Consultant's determination. The Consultant shall
provide the Participant or Beneficiary and the Company
with a written notice of the amount of the excise taxes
that is required to be paid and the amount of the gross-
up payment, including any necessary calculations in
support of its conclusions. The Company shall pay all
fees and expenses of the Consultant.
The Participant or Beneficiary shall notify the Company
in writing within five days if the Internal Revenue
Service takes the position that the amount of excise
tax paid was incorrect. The Company shall have the
right to challenge any excise tax determinations made
by the Internal Revenue Service, and the Participant or
Beneficiary shall cooperate fully with the Company in
connection with any such challenge. The Company shall
control any such challenge and shall bear all costs
associated with the challenge. After the Company has
exhausted the rights to challenge the determination or
indicated that it intends to concede or settle the
excise tax determination, the gross-up payment shall be
recalculated by the Consultant to reflect the actual
excise taxes and any related interest and penalties.
The Company shall pay to the Participant or Beneficiary
any deficiency in the gross-up payment and any related
interest and penalties payable (or the Participant or
Beneficiary shall return to the Company any excess
gross-up payment and any interest received thereon)
within 10 days of receipt of the revised calculations
from the Consultant.
14. GENERAL PROVISIONS
(a) Except as provided by the Trust, Participants 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 its Affiliates.
With respect to the Plan, any Plan Agreement and the
Trust, any and all of the Company's and Affiliates'
assets shall be, and shall remain, the general,
unpledged unrestricted assets of the Company and its
Affiliates, except as provided by the Trust.
(b) The Company's and its Affiliates' liability for the
payment of benefits shall be defined only by the Plan.
The Company and its Affiliates shall have no obligation
to a Participant under the Plan except as expressly
provided in the Plan.
(c) Neither a Participant nor any other person shall have
any right to 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, 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 Participant or
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any other person, nor be transferable by operation of law
in the event of a Participant's or any other person's
bankruptcy or insolvency.
(d) 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 Participant. 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 Participant 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 Participant at any time.
(e) A Participant shall 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.
(f) 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.
(g) 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.
(h) The provisions of this Plan shall be construed and
interpreted according to the laws of the State of
California.
(i) 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.
(j) 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
Such notice shall be deemed given as of the date of
delivery or, if delivery is
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made by mail, as of the date shown on the postmark on
the receipt for registration or certification.
(k) Any notice or filing required or permitted to be given
to a Participant under this Plan shall be sufficient if
in writing and hand-delivered, or sent by mail, to the
last known address of the Participant.
(l) The provisions of this Plan shall bind and inure to the
benefit of the Company and its Affiliates and their
successors and assigns and the Participant, the
Participant's Beneficiaries, and their permitted
successors and assigns.
(m) The interest in the benefits hereunder of a spouse of a
Participant who has predeceased the Participant shall
automatically pass to the Participant 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.
(n) 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, incompetence, 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 Participant 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 Participant's
benefits under this Plan become taxable to the Participant
prior to receipt, a Participant 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 it Affiliates shall cause to be distributed to the
Participant immediately available funds in an amount equal
to the Participant'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 Participant'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
subsequently hereunder.
16. CLAIMS PROCEDURE
If a Participant 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,
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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 its
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 and
its Affiliates.
18. TERMINATION OF PRIOR PLAN AND RIGHTS THEREUNDER
This Plan superceded and replaced the Prior Plan, and all
rights, if any, that the undersigned Participant may have
had under the Prior Plan terminated.
IN WITNESS WHEREOF, Homestake Mining Company has adopted
this 1999 Executive Supplemental Retirement Plan, effective April
1, 1999, amended as of September 1, 1999.
HOMESTAKE MINING COMPANY
__________________________ By: ________________________
Date of Execution
ACKNOWLEDGEMENT AND AGREEMENT
I have read and understand and agree to the 1999 Executive
Supplemental Retirement Plan, as amended as of September 1, 1999
("Plan"), set out above. I acknowledge that the Plan
17
defines the entire obligation of Homestake and its Affiliates with
respect to the benefits identified therein and is limited to
those benefits.
Date:__________________ ________________________
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