NEWMONT MINING CORPORATION 2005 STOCK INCENTIVE PLAN STOCK OPTION AWARD AGREEMENT
Exhibit 10.14
NEWMONT MINING CORPORATION
2005 STOCK INCENTIVE PLAN
2005 STOCK INCENTIVE PLAN
This Stock Option Award Agreement (“Agreement”), dated October 31, 2008, is made between
Newmont Mining Corporation (“Newmont”) and and Xxxxxxx X. X’Xxxxx (“Grantee”). All capitalized terms
that are not defined herein shall have the meaning as defined in the Newmont Mining Corporation
2005 Stock Incentive Plan (“Plan”).
A. Option Grant.
1. Grant of Option. Subject to the terms and conditions of the Plan, the terms and conditions
set forth herein, Newmont hereby grants to Grantee the right and option to purchase from Newmont,
all or any part of 300,000 shares of $1.60 par value common stock of Newmont (“Stock”), at the per
share purchase price equal to $26.91 (“Option”), such Option to be exercisable as hereinafter
provided. This Option shall not be treated as an incentive stock option as defined in Code Section
422.
2. Terms and Conditions. This Option is subject to the following terms and conditions:
(a) Expiration Date. This Option shall expire ten years after the date indicated above, or
such earlier date as (i) all shares of Stock covered by this Option shall have been purchased, or
(ii) this Option shall have expired pursuant to paragraph A.2(d).
(b) Exercise of Option. Subject to the other terms of this Agreement and the Plan, this
Option will vest and may be exercised on or after October 30, 2013.
Any exercise of all or any part of this Option shall be accompanied by payment in full of the
purchase price of the shares of Stock as to which this Option is exercised in accordance with
paragraph A.2(c), including applicable taxes, if any, in accordance with paragraph A.2(f), and a
written notice to Newmont, or its designated agent, specifying the number of shares of Stock as to
which this Option is being exercised.
(c) Consideration. At the time of any exercise of this Option, the purchase price of the
shares of Stock as to which this Option shall be exercised shall be paid to Newmont (i) in United
States dollars by check, bank draft or money order; (ii) if permitted by the Committee and subject
to any conditions or limitations imposed by the Committee or by applicable laws, regulations and
rules, by tendering to Newmont shares of Stock, duly endorsed for transfer to Newmont, already
owned by Grantee (or by Grantee and Grantee’s spouse jointly) for at least six months (or any
shorter period necessary to avoid a charge to Newmont’s or any Subsidiary’s earnings for financial
reporting purposes) prior to such tender, which may include shares received as the result of a
prior exercise of this Option, and having a total Fair Market Value on the date on which this
Option is exercised equal to the aggregate cash purchase price of the shares of Stock as to which
this Option, or portion thereof, is exercised; (iii) if permitted by the Committee and subject to
any conditions or limitations imposed by the Committee or by applicable laws, regulations and
rules, in accordance with a “cashless exercise,” where the
purchase price is settled through a broker-assisted same-day-sale of shares of Stock; or (iv) by
any combination of the consideration provided in the foregoing clauses (i), (ii) and (iii).
(d) Exercise Upon Termination of Employment. Notwithstanding paragraph A.2(b), upon
termination of Grantee’s employment (deemed to have occurred on the last day worked) with Newmont
or any of its Subsidiaries prior to the expiration date of this Option specified in paragraph
A.2(a), this Option shall be exercisable and shall expire as follows (provided that nothing in this
paragraph A.2(d) shall permit this Option to be exercised after the expiration date of this Option
set forth in paragraph A.2(a)):
(i) Death of Grantee. This Option shall expire thirty-six months after termination of
Grantee’s employment caused by the death of Grantee. During such period, this Option may be
exercised in accordance with this Agreement and the number of shares of Stock with respect
to which this Option shall be so exercisable shall not be determined in accordance with
paragraph A.2(b) but shall be determined in accordance with the following formula:
(ii) Long Term Disability. Subject to subparagraph A.2(d)(vii), this Option shall
expire thirty-six months after termination of Grantee’s employment caused by Grantee’s
disability entitling Grantee to long-term disability benefits under the Long-Term Disability
Plan of Newmont (or any successor plan designated by the Committee) (the “Long-Term
Disability Plan”). During such period, the number of shares of Stock with respect to which
this Option shall be exercisable shall not be determined in accordance with paragraph A.2(b)
but shall be determined in accordance with the following formula:
(iii) Retirement. Subject to subparagraph A.2(d)(vii), upon Grantee’s normal or early
retirement entitling Grantee to an immediate pension, or resignation with the consent of the
Board, this Option shall expire thirty-six months after termination of Grantee’s employment.
During such period, this Option may be exercised in accordance with this Agreement and the
number of shares of Stock with respect to which this Option shall be so exercisable shall
not be determined in accordance with paragraph A.2(b) but shall be determined in accordance
with the following formula:
2
(iv) Termination of Employment. Subject to subparagraph A.2(d)(vii), this Option shall
expire thirty-six months after termination of Grantee’s employment (A) by Newmont or a
Subsidiary without Cause (as defined in the Executive Change of Control Plan of Newmont) or
(B) where Grantee terminates Grantee’s employment for Good Reason as defined under the
Executive Change of Control Plan of Newmont, and may be exercised for the total number of shares
of Stock covered by this Option without regard to Paragraph A.2(b).
(v) Short-Term Disability. Subject to subparagraph A.2(d)(vii), this Option shall
expire four months after termination of Grantee’s employment where Grantee has received
short-term disability benefits under the Short-Term Disability Plan of Newmont immediately
prior to such termination. During such period, the Option may only be exercised to the
extent the Option is exercisable in accordance with paragraph A.2(b) as of the date of such
termination of employment. If, during the four-month period following such termination of
employment, Newmont or a Subsidiary (or a designee thereof) determines that Grantee is
entitled to long-term disability benefits under the Long-Term Disability Plan by reason of
Grantee’s disability, the provisions of paragraph A.2(d)(ii) shall apply.
(vi) Other Circumstances. This Option shall expire immediately upon termination of
Grantee’s employment if such termination occurs under any circumstances not described in
subparagraphs (i) through (v) of paragraph A.2(d) including, without limitation, termination
for Cause or voluntary termination by Grantee without Good Reason and without consent of the
Board.
(vii) Death After Termination. In any case covered by subparagraph A.2(d)(ii), (iii),
(iv) or (v), if Grantee shall die after termination of employment but prior to the
attainment of the expiration date specified for such case in subparagraph A.2(d)(ii), (iii),
(iv) or (v), then this Option shall remain exercisable until expiration of the later of the
period so specified or one year following the date of Grantee’s death, and may be exercised
during such period in accordance with paragraph A.2(e).
(viii) Change of Control. Notwithstanding section 16 of the Plan, in the event of a
Change of Control, exercise of this Option shall continue to be governed by this Agreement
as if such a Change of Control had not occurred.
(e) Nontransferability. This Option shall be personal to Grantee and may not be sold,
transferred, pledged, assigned, encumbered or otherwise alienated or hypothecated otherwise than by
will or by the laws of descent and distribution and shall be exercisable during the lifetime of
Grantee only by him; provided, however, that, subject to the terms of the Plan, (i) this Option (or
any portion thereof) may be exercised after Grantee’s death by the beneficiary most recently named
by Grantee in a written designation thereof filed with Newmont, or, in lieu of any such surviving
beneficiary, by the legal representatives of Grantee’s estate or by the legatee of Grantee under
Grantee’s last will, (ii) this Option may be transferred by Grantee during his or her lifetime to
Grantee’s alternate payee pursuant to a qualified domestic relations order, as defined by the
Internal Revenue Code or Title I of the Employee Retirement Income Security Act of 1974, as
amended, or the rules and regulations thereunder, and (iii) subject to such terms,
conditions and limitations as may be prescribed by the Committee, all or a portion of this Option
3
may be transferred by Grantee to his or her spouse, children or grandchildren, or a trust or
trusts for the exclusive benefit of any such individuals, or a partnership in which any such
individuals are the only partners; provided that (x) there may be no consideration for any such
transfer and (y) following any such transfer, this Option may not be subsequently transferred by
any transferee, otherwise than by will or by the laws of descent and distribution; and provided
further that, following any such transfer, the provisions of paragraph A.2(d) shall continue to be
applied with respect to Grantee, and exercise of this Option by any transferee shall continue at
all times to be governed by such provisions.
(f) Withholding Taxes. Newmont and the Subsidiaries will assess the requirements regarding
tax, social insurance and payroll tax withholding and payment (“Tax-Related Items”) in connection
with this Option, including the grant of this Option, the purchase of Stock or the subsequent sale
of Stock acquired under the Plan. These requirements may change from time to time as laws or
interpretations change. Regardless of Newmont’s actions in this regard, Grantee hereby
acknowledges and agrees that the ultimate liability for any and all Tax-Related Items is and
remains the responsibility and liability of Grantee and that Newmont and the Subsidiaries: (i)
make no representations or undertakings regarding the treatment of any Tax-Related Items in
connection with any aspect of the grant or exercise of this Option and the subsequent sale of Stock
acquired under the Plan; and (ii) do not commit to structure the terms of the grant or any aspect
of this Option to reduce or eliminate Grantee’s liability for Tax-Related Items. Prior to exercise
of this Option, Grantee shall pay or make adequate arrangements satisfactory to Newmont and the
Subsidiaries to satisfy all withholding obligations of Newmont and the Subsidiaries. In this
regard, Grantee authorizes Newmont and the Subsidiaries to withhold all applicable Tax-Related
Items legally payable by Grantee from Grantee’s salary or other cash compensation paid to Grantee
by Newmont or a Subsidiary. Alternatively, or in addition, if permitted by the Committee and under
applicable laws, regulations and rules, Newmont may allow Grantee to elect to satisfy such
withholding obligations for Tax-Related Items by: (1) having Newmont withhold and sell or arrange
for the sale of shares of Stock, on behalf of Grantee, that Grantee acquires upon exercise of this
Option to meet such withholding obligations; provided, however, the Fair Market Value of such
shares of Stock cannot exceed the minimum statutory withholding rates for federal and state income
and payroll taxes that are applicable to the payment of supplemental wages; or (2) by tendering to
Newmont or a Subsidiary shares of Stock already owned by Grantee (or by Grantee and Grantee’s
spouse jointly) for at least six months (or any shorter period necessary to avoid a charge to
Newmont’s or a Subsidiary’s earnings for financial reporting purposes) prior to such tender, which
may include shares received as the result of a prior exercise of this Option, in full or partial
satisfaction of such tax obligations, based, in each case, on the Fair Market Value of the Stock on
the date that the amount of tax to be withheld is to be determined. Grantee shall also pay to
Newmont or a Subsidiary in cash any amount of any Tax-Related Items that Newmont or the
Subsidiaries may be required to withhold as a result of Grantee’s participation in the Plan or
Grantee’s purchase of Stock that are not satisfied by the means described in the immediately
preceding sentence. Grantee acknowledges that Newmont has advised Grantee to consult a tax adviser
with respect to tax consequences for Grantee upon the disposition of Stock under the Plan.
(g) No Rights as a Stockholder. Neither Grantee nor any other person shall become the
beneficial owner of any shares of Stock, nor have any rights to dividends or other
4
rights as a shareholder with respect to any such shares, until Grantee has exercised this Option in
accordance with the provisions hereof and of the Plan.
(h) Compliance with Laws and Regulations. This Option and the obligation of Newmont to sell
and deliver shares of Stock hereunder shall be subject to (i) all applicable federal and state
laws, rules and regulations and (ii) any registration, qualification, approvals or other
requirements imposed by any government or regulatory agency or body which the Committee shall, in
its sole discretion, determine to be necessary or applicable. Moreover, this Option may not be
exercised if its exercise, or the receipt of shares of Stock pursuant thereto, would be contrary to
applicable law or the rules of any stock exchange.
(i) Automatic Extension. The period of time over which this Option may be exercised shall be
automatically extended if, on the scheduled expiration date of such Option, the Grantee is
prohibited by any applicable securities laws, regulations, rules or Newmont policy from trading
common stock; provided, however, that during such extended exercise period the Option may only be
exercised to the extent the Option was exercisable in accordance with its terms immediately prior
to such scheduled expiration date. Such extended exercise period shall end 60 days after the
relevant prohibitions terminate.
B. Acknowledgements. Grantee acknowledges receipt of and understands and agrees to
the terms of this Agreement and the Plan. In addition to the above terms, Grantee understands and
agrees to the following:
1. Grantee acknowledges that as of the date of this Agreement, such Agreement and the Plan set
forth the entire understanding between Grantee and Newmont regarding the Option outlined herein,
and the Agreement and Plan supercede all prior oral and written agreements pertaining to the
Option.
2. Grantee understands that his or her employer, Newmont and the Subsidiaries hold certain
personal information about Grantee, including but not limited to his or her name, home address,
telephone number, date of birth, social security number, salary, nationality, job title and details
of all options or other entitlement to shares of common stock awarded, canceled, exercised, vested,
unvested or outstanding (“personal data”). Certain personal data may also constitute “sensitive
personal data” within the meaning of applicable law. Such data include but are not limited to the
information provided above and any changes thereto and other appropriate personal and financial
data about Grantee. Grantee hereby gives explicit consent to Newmont and any of the Subsidiaries
to process any such personal data and/or sensitive personal data. Grantee also hereby gives
explicit consent to Newmont to transfer any such personal data and/or sensitive personal data
outside the country in which Grantee is employed, including, but not limited to the United States.
The legal persons for whom such personal data are intended include, but are not limited to Newmont
and its agent, BNY Mellon Shareowner Services. Grantee has been informed of his/her right of
access and correction to his/her personal data by applying to Director of Compensation, Newmont
Corporate.
3. Grantee understands that Newmont has reserved the right to amend or terminate the Plan at
any time, and that the grant of an option under the Plan at one time does not in any way obligate
Newmont or the Subsidiaries to grant additional awards to the Grantee in any future year or in any
given amount. Grantee acknowledges that all determinations with respect to any
5
such future grants, including, but not limited to, the times when awards shall be granted, the
number of shares subject to each award, the exercise price, and/or the time or times when each
award shall be vested, will be at the sole discretion of Newmont. Grantee acknowledges and
understands that the grant of this Option is granted in connection with Grantee’s status as an
employee of his or her employer and can in no event be interpreted or understood to mean that
Newmont Mining Corporation is Grantee’s employer or that there is an employment relationship
between Grantee and Newmont Mining Corporation. Grantee further acknowledges and understands that
Grantee’s participation in the Plan is voluntary and that the grant of this Option and any future
awards under the Plan are wholly discretionary in nature and an extraordinary item of compensation
which is outside the scope of the Grantee’s employment terms and conditions, the value of which do
not form part of any normal or expected compensation for any purposes, including, but not limited
to, any claim for benefits, severance, end of service payments, bonuses, long-service awards,
pension or retirement benefits or similar payments, and any such right to the contrary under
applicable law is hereby irrevocably waived.
4. Grantee acknowledges and understands that the future value of the shares underlying this
Option is unknown and cannot be predicted with certainty and that no claim or entitlement to
compensation or damages arises from the termination of this Option or the Plan or the diminution in
value of this Option or any shares acquired under the Plan and Grantee irrevocably releases Newmont
and the Subsidiaries from any such claim that may arise.
5. Grantee acknowledges that the vesting of the Option ceases upon the earlier of termination
of employment or receipt of notice of termination of employment for any reason, except as may
otherwise be explicitly provided herein, and the Grantee irrevocably waives any right to the
contrary under applicable law.
6. Grantee acknowledges that the Grantee’s acceptance of this Option, including the terms and
conditions herein, is voluntary.
C. Miscellaneous.
1. Inconsistency With Plan. If and to the extent that any provision contained in the Grant
Acknowledgment, including without limitation, the Terms and Conditions section thereof, or in this
Agreement is inconsistent with the Plan, the Plan shall govern.
2. No Right to Continued Employment. Neither this Option nor any terms contained in this
Agreement shall confer upon Grantee any expressed or implied right to be retained in the service of
the Company or any Subsidiary for any period at all, nor restrict in any way the right of the
Company or any such Subsidiary, which right is hereby expressly reserved, to terminate his
employment at any time with or without cause. Grantee acknowledges and agrees that any right to
exercise this Option is earned only by continuing as an employee of a Subsidiary at the will of
such Subsidiary, or satisfaction of any other applicable terms and conditions contained in this
Agreement and the Plan, and not through the act of being hired, being granted this Option or
acquiring shares of Stock hereunder.
3. Investment Representation. If at the time of exercise of all or part of this Option, the
Stock is not registered under the Securities Act of 1933, as amended (the “Securities Act”), and/or
there is no current prospectus in effect under the Securities Act with respect to the Stock,
6
Grantee shall execute, prior to the delivery of any shares of Stock to Grantee by Newmont, an
agreement (in such form as the Committee may specify) in which Grantee represents and warrants that
Grantee is purchasing or acquiring the shares acquired under this Agreement for Grantee’s own
account, for investment only and not with a view to the resale or distribution thereof, and
represents and agrees that any subsequent offer for sale or distribution of any kind of such shares
shall be made only pursuant to either (i) a registration statement on an appropriate form under the
Securities Act, which registration statement has become effective and is current with regard to the
shares being offered or sold, or (ii) a specific exemption from the registration requirements of
the Securities Act, but in claiming such exemption Grantee shall, prior to any offer for sale of
such shares, obtain a prior favorable written opinion, in form and substance satisfactory to the
Committee, from counsel for or approved by the Committee, as to the applicability of such exemption
thereto.
4. Notices. Any notice hereunder to Newmont shall be addressed to it at 0000 Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxx 00000, Attention: Stock Plan Administrator, or its designated agent, and shall
otherwise be in accordance with and subject to Section 2(s) of the Plan, and any notice hereunder
to Grantee shall be addressed to him at 0000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, subject to the
right of either party to designate at any time hereafter in writing some other address.
5. Severability. If any of the provisions of this Agreement should be deemed unenforceable,
the remaining provisions hereof shall remain in full force and effect.
6. Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware.
7. Modification. Except as otherwise permitted by the Plan, this Agreement may not be
modified or amended, nor may any provision hereof be waived, in any way except in writing signed by
the parties hereto. Notwithstanding any other provision of this Agreement to the contrary, the
Committee may amend this Agreement to the extent it determines necessary or appropriate to comply
with the requirements of Section 885 of the American Jobs Creation Act of 2004, P.L. 108-357.
7
IN
WITNESS WHEREOF, Newmont has caused this Agreement to be executed by it Vice President and
Secretary, and Grantee has executed this Agreement, both as of the day and year first above
written.
| NEWMONT MINING CORPORATION |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Xxxxxx X. Xxxxxx | ||||
| Vice President and Secretary | ||||
/s/ Xxxxxxx X. X’Xxxxx
Xxxxxxx X. X’Xxxxx
|
8
