Exhibit 10(c)(5)
EMPLOYMENT TERMINATION AND NON-COMPETITION AGREEMENT
This EMPLOYMENT TERMINATION AND NON-COMPETITION AGREEMENT, dated as of
July 20, 2000 (this "Agreement"), is by and between Xxxxxx X. Xxxxxx
("Executive") and Battle Mountain Gold Company, a Nevada corporation ("BMG").
WHEREAS, under the terms of the Agreement and Plan of Merger, dated as
of June 21, 2000 (the "Merger Agreement"), by and among Newmont Mining
Corporation, a Delaware corporation ("Newmont"), BMG, and Merger Sub, BMG will
become a wholly-owned subsidiary of Newmont (the "Merger");
WHEREAS, as a condition to the Merger, Newmont wishes that BMG enter
into an agreement with Executive, which will be binding on Newmont as successor
to BMG, to protect its investment in BMG by preventing Executive from competing
against the business of BMG, as set forth in this Agreement in the event of
Executive's termination of employment following the Merger (the "Agreement");
WHEREAS, Executive is willing to enter into such and Agreement in
exchange for the payment and provision to Executive of certain amounts and
benefits as provided in this Agreement; and
NOW, THEREFORE, in consideration of the covenants and agreements set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which is acknowledged, the parties agree as follows:
1. Defined Terms. All capitalized terms used in this Agreement shall
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have the meanings given to them in the Merger Agreement unless otherwise defined
in this Agreement.
2. Termination of Employment Agreement; Payments and Benefits.
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(a) BMG and Executive agree that in the event that Executive's
employment is terminated for any reason following the consummation of the
Merger, the provisions of this Agreement shall be of full force and effect and
shall be binding upon the parties; provided that this Agreement shall have no
effect on the Executive's rights or obligations under any other arrangements
with the BMG.
(b) In consideration of the covenants of executive contained in this
Agreement, BMG covenants and agrees as follows:
(i) BMG shall pay to Executive an amount equal to Two
Hundred Seventy-Five Thousand Dollars (US$275,000.00) for the one year
period from and after the date of termination of Executive's
employment with BMG following the Closing under the Merger Agreement
(the "Restricted Period"), which amount shall be payable, by wire
transfer of immediately available funds to an account nominated by
Executive, on the first day of the month next following the date of
the termination of Executive's employment (or, if any such payment
date is not a business day, on the first business day after such
payment date).
(ii) All amounts payable under this Agreement are payments
"in the nature of compensation" within the meaning of Code Section
280G. No amount payable under this Agreement shall be treated as a
"parachute payment" within the meaning of Code Section 280G for
purposes of (i) any agreement between the BMG and the Executive or
(ii) any plan or arrangement of BMG (or its Affiliates) for the
benefit of Executive, and no amount payable to Executive under the
terms of this Agreement shall be reduced or serve as the basis for a
reduction of any other amounts due Executive from the Company or its
Affiliates.
3. Agreement Not To Compete. In exchange for the consideration
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described in Section 2(b) and other good and valuable consideration, Executive
covenants and agrees that he will not, for a period of one year commencing on
the date of Executive's termination of employment, unless (i) acting with the
prior written consent of BMG or (ii) following the termination of this provision
under Section 7 or otherwise:
(a) directly or indirectly, own or participate in, or be connected
with, as an officer, director, employee, manager, agent, stockholder, partner,
member, co-venturer, investor, creditor, consultant or advisor, or in any other
capacity, with any Restricted Entity (as defined below), except as the holder of
not more than 1% of the outstanding capital securities of a Restricted Entity.
For purpose of this Agreement, "Restricted Entity" shall mean any of the
entities whose names appear on Appendix A hereto.
(b) solicit, induce or attempt to hire, or hire any employee of BMG or
Newmont, or assist in such hiring by any other person or business entity or
induce or encourage any such employee to terminate his or her employment with
any of the Companies, except where such solicitation, inducement, attempt to
hire or hire occurs by or as the result of a general public solicitation; or
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(c) induce or attempt to induce any person, business or entity that is
an advertiser with or supplier of BMG or Newmont, or that otherwise is a
contracting party with any of the Companies, as of the date of this Agreement,
or at any time during the term of this Agreement, to terminate any written or
oral agreement or understanding with any of the Companies existing as of the
date of this Agreement.
4. Specific Performance. The parties acknowledge and agree that the
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remedies at law for a breach or threatened breach of this Agreement would be
inadequate and, in recognition of this fact, each of them agrees that, in the
event of such a breach or threatened breach, in addition to any remedies at law,
such party, without posting any bond, shall be entitled to obtain equitable
relief in the form of specific performance, temporary restraining order,
temporary or permanent injunction or any other equitable remedy which may then
be available.
5. Liquidated Damages.
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BMG agrees that if BMG (i) fails to make payment due to Executive
under Section 2(b)(i) within three business days after the receipt of demand for
such payment or breaches the covenant contained in Section 2(b)(ii), Executive
shall be entitled against BMG to receive a lump sum payment of liquidated
damages equal to the aggregate amount that would have been payable to Executive
under this Agreement in respect of the Restricted Period. Executive shall also
be entitled to monthly reimbursement from BMG for any costs, fees or expenses,
incurred in good faith, related to the enforcement of his rights under this
Agreement, including, but not limits to, attorneys' fees and filing fees.
Should Executive become entitled to a payment under Section 5(a), all
other obligations of Executive under this Agreement, including without
limitation, all non-compete, non-solicitation and non-inducement obligations,
shall cease and be of no further effect.
6. Notice. All notices, requests, demands or other communications in
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connection with this Agreement shall be in writing and shall be deemed to have
been duly given when delivered by hand; or when sent by facsimile transmission,
upon receipt; or when mailed by first class, certified mail, postage prepaid,
upon receipt; in each case as follows:
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(a) If to Executive:
Xxxxxx X. Xxxxxx
00 X. Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxx 00000
with a copy to:
Xxxxxx X. Xxxxxxx, Esq
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX
Telecopy: (000) 000-0000
(b) If to BMG:
Vice President, Human Resources
Battle Mountain Gold Company
000 Xxxx Xxxxxx Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
with a copy to:
General Counsel
Battle Mountain Gold Company
000 Xxxx Xxxxxx Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
7. Miscellaneous Provisions.
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(a) This Agreement may be amended only by a written instrument signed
by BMG and Executive. No provision of this Agreement may be waived except by an
instrument in writing signed by the party sought to be bound.
(b) If any provision of this Agreement shall be determined to be
unenforceable by any court of competent jurisdiction by reason of its extending
for too great a period of time or over too large a geographic area or over too
great a
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range of activities, it shall be interpreted to extend only over the maximum
period of time, geographic area or range of activities as to which it may be
enforceable. If, after application of the immediately preceding sentence, any
provision of this Agreement shall be determined to be invalid, illegal or
otherwise unenforceable by any court of competent jurisdiction, the validity,
legality and enforceability of the other provisions of this Agreement shall not
be affected by such determination. Except as otherwise provided in this
paragraph, any invalid, illegal or unenforceable provision of this Agreement
shall be severable, and after any such severance, all other provisions of this
Agreement shall remain in full force and effect.
(c) For purposes of this Agreement, the term "BMG" shall mean BMG and
its parent, subsidiaries and affiliates, and the successors and assigns of BMG
or any such subsidiary or affiliate.
(d) This Agreement shall be binding upon Executive and his heirs,
executors, administrators, successors and assigns, except that the non-compete
obligation under Section 3 shall bind Executive only. This Agreement shall
inure to the benefit of BMG and its successors and assigns.
(e) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York (without reference to such
State's conflicts of laws rules), except with respect to matters governed by
federal law relating to radio communications.
(f) No failure or delay on the part of any party to exercise any
right, power or privilege under this Agreement shall be deemed a waiver of any
rights or remedies to which such party may be entitled.
(g) This Agreement may be signed in counterparts, each of which shall
be deemed an original and shall together constitute the same agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed, as of the date first written in this Agreement.
Executive
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
BATTLE MOUNTAIN GOLD
By: /s/ Xxxxxxxx X. Xxxxx
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Xxxxxxxx X. Xxxxx
Vice President - Human Resources
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