-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, F52u57I26MSlem6lzx3S8e6JvQufW+xgZXiobebh3kBSETtm/USPKIdStGRv9Ar0 qYsPDSz9UrxnDvOjdzx9Lg== 0000934614-00-000002.txt : 20000202 0000934614-00-000002.hdr.sgml : 20000202 ACCESSION NUMBER: 0000934614-00-000002 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 12 CONFORMED PERIOD OF REPORT: 20000118 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 20000118 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HOMESTAKE MINING CO /DE/ CENTRAL INDEX KEY: 0000743872 STANDARD INDUSTRIAL CLASSIFICATION: GOLD & SILVER ORES [1040] IRS NUMBER: 942934609 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-08736 FILM NUMBER: 509111 BUSINESS ADDRESS: STREET 1: 650 CALIFORNIA ST STREET 2: 9TH FL CITY: SAN FRANCISCO STATE: CA ZIP: 94108-2788 BUSINESS PHONE: 4159818150 MAIL ADDRESS: STREET 1: 650 CALIFORNIA ST CITY: SAN FRANCISCO STATE: CA ZIP: 94108-2788 8-K 1 HOMESTAKE MINING COMPANY UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K Current Report Pursuant to Section 13 or 15(d) Of the Securities Exchange Act of 1934 Date of report (Date of earliest event reported): January 18, 2000 HOMESTAKE MINING COMPANY (Exact name of registrant as specified in its charter) Delaware 1-8736 94-2934609 (State or other (Commission File (I.R.S. Employer jurisdiction Number) Identification of incorporation) Number) 650 California Street, San Francisco, California 94108-2788 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (415) 981-8150 http://www.homestake.com Item 5. Other This Form 8-K is submitted to file the documents listed below in the Exhibit Index. Item 7. Financial Statements, Pro Forma Financial Information and Exhibits 7(c) Exhibits Exhibit 10.41 Consulting Agreement between McClintock Associates Pty Limited and Plutonic Resources Limited, composite as amended September 24, 1999. Exhibit 10.42 Amended 1999 Executive Supplemental Retirement Plan of Homestake Mining Company, effective April 1, 1999, amended as of September 1, 1999. Exhibit 10.43 1999 Change of Control Severance Plan of Homestake Mining Company (alternative I, applicable to persons who were participants in the Change of Control Severance Plan prior to May, 1998). Exhibit 10.44 1999 Change of Control Severance Plan of Homestake Mining Company (alternative II, applicable to persons who became participants in the Change of Control Severance Plan after May, 1998). Exhibit 10.45 First Amendment to the Retirement Plan for Outside Directors of Homestake Mining Company, dated as of January 6, 2000. Exhibit 10.46 Amended Form of Stock Option Agreement under the 1996 Plan. Exhibit 10.47 Amended Form of Performance Based Share Agreement under the 1996 Plan - 1997 Grants. Exhibit 10.48 Amended Form of Performance Based Share Agreement under the 1996 Plan - 1998 Grants. Exhibit 10.49 Amended Form of Performance Based Share Agreement under the 1996 Plan - 1999 Grants. Exhibit 10.50 Amended Form of Bonus Stock Program Agreement under the 1996 Plan. Exhibit 10.51 Amended Form of Matching Stock Agreement under the 1996 Plan. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. Dated: January 18, 2000 HOMESTAKE MINING COMPANY (Registrant) 2 By:/s/ David W. Peat David W. Peat Vice President and Controller 3 EX-10 2 EXHIBIT 10.41 CONSULTING AGREEMENT (Composite, as amended September 24, 1999) This CONSULTING AGREEMENT, dated as of October 1, 1998 ("Effective Date"), is between McClintock Associates Pty Limited, ACN 002 802 9986 ("Consultant") and Plutonic Resources Limited, ACN 006 245 629 ("Plutonic"). 1. Plutonic agrees to engage Consultant, and Consultant agrees to accept the engagement, to provide consulting services with respect to the following and for such additional matters as Consultant and Plutonic agree ("Services"): (a) As requested, Consultant will provide the services of Paul McClintock ("McClintock") to advise in respect of general Australian business and government affairs to both Plutonic and to its Affiliates. (b) Consultant will provide such additional services of McClintock as may be agreed between Consultant and the Plutonic Representatives. Services under this agreement shall not include (i) serving as a director of Plutonic or any of its Affiliates, for which separate arrangements have been or will be made, or (ii) testifying as a witness in legal proceedings, and compensation shall not be payable under this agreement with respect to testifying in any proceeding. 2. The engagement shall begin on the Effective Date and continue until September 30, September 30, 2000. Notwithstanding the foregoing, if McClintock shall for any reason cease to be employed by Consultant, this agreement shall immediately terminate. 3. (a) McClintock shall perform Services for Plutonic as, when and where reasonably requested to do so by Plutonic. It is expected that McClintock may spend up to approximately 50 days per year providing Services. As compensation for McClintock's Services, Plutonic shall pay Consultant the Australian dollar equivalent of US$40,000 per year, payable in quarterly installments, in arrears at the last day of each calendar quarter. In calculating the Australian dollars payable, US dollars shall be converted to Australian dollars using the US Dollar Hedge Settlement Rate as displayed on the Reuters FEYA-C Screen as of the last Business Day of each calendar quarter. If this agreement terminates during any quarter because McClintock has ceased to be employed by Consultant, then the amount otherwise payable in respect of that quarter shall be pro-rated based on the number of days in the quarter during which this agreement was in effect. (b) If Plutonic requests that Consultant provide unusual or extraordinary services in addition to the general services provided hereunder, or if Plutonic requests that Consultant provide Services that may be expected to significantly exceed 50 hours per year, Plutonic and Consultant shall make separate arrangements therefor. (c) Plutonic shall also pay all costs reasonably incurred by Consultant in providing Services, other than compensation payable to McClintock and withholding, employee benefits and other expenses relating to employment of McClintock by Consultant. Plutonic shall have no obligation to compensate McClintock, it being agreed that Consultant shall be solely responsible for compensating McClintock for Services provided hereunder and for payment of employment related expenses applicable to McClintock. (d) Plutonic shall make reasonable advances to Consultant for travel related to Services, and after presentation of customary receipts shall reimburse Consultant for approved expenses related to Services in accordance with the travel advance and expense reimbursement policies for Plutonic employees. (e) Plutonic shall pay for Services within ten days after the end of each calendar quarter. Plutonic shall reimburse Consultant for related expenses within ten days of its receipt and approval of Consultant's invoice therefor. 4. (a) Consultant shall make such written reports of Consultant's activities to Plutonic as Plutonic may from time to time reasonably request. (b) All such reports shall be the sole and exclusive property of Plutonic, to be delivered to Plutonic by Consultant upon Plutonic's request. Consultant expressly agrees to deliver to Plutonic all papers, drawings, models, maps, or any other thing related to Services in Consultant's possession or under its control upon termination of this agreement. 5. Consultant shall not, and shall procure that McClintock shall not, within three years after the termination of this agreement, divulge to any person any proprietary or confidential information relating to Plutonic or its Subsidiaries or Affiliates ("Plutonic Companies"), or relating to any business or property in which any of the Plutonic Companies has an interest, acquired by Consultant or McClintock while serving as a present or former director or employee of any of the Plutonic Companies or in the course of performance of duties under this agreement without express written authorization by an officer of Plutonic. For purposes of this agreement, "Subsidiary" shall mean any corporation, partnership, joint venture or other entity or person in which Plutonic has a total direct and/or indirect equity or voting interest of at least 20%, and "Affiliate" shall mean any corporation, partnership, joint venture or other entity or person which is directly or indirectly controlling, controlled by or under common control with Plutonic. 6. Consultant represents and warrants to Plutonic that the performance of Services hereunder will not breach any obligation Consultant or McClintock may have to any third party. 7. Consultant agrees that until termination of this agreement, Consultant shall not, and shall procure that McClintock shall not, engage in any employment or consulting services with anyone other than one of the Plutonic Companies relating to the Services performed or relating to any business or property in which any of the Plutonic Companies has an interest at the date of termination without Plutonic's prior written consent, which consent will not be 2 unreasonably withheld. 8. Consultant shall not delegate, subcontract, assign, or employ any person other than McClintock to perform any work directly or indirectly related to Services without Plutonic's prior written consent. 9. (a) The relationship of Consultant to Plutonic shall be that of an independent contractor. Notwithstanding anything contained in this agreement, the parties agree that McClintock is solely the employee of Consultant and is not an employee of Plutonic. Plutonic acknowledges that it shall have no right to exercise control over McClintock. Consultant and McClintock shall not, by reason of this agreement, participate in any employee benefits available to employees of Plutonic Companies. (b) Consultant assumes full responsibility and liability for the payment of any taxes due on any amount payable hereunder. (c) Except to the extent required by law, Plutonic shall not make any deduction from any amount payable by it to Consultant for taxes or for insurance or benefits. 10. The Plutonic Representatives authorized to assign work to Consultant and coordinate Consultant's performance of Services are Gregory A. Lang and Jack E. Thompson. Plutonic may assign such responsibility to any other Representative or Representatives. 11. (a) All notices provided for in this agreement shall be delivered personally or by facsimile or by first class airmail, postage prepaid, and shall be deemed received when personally delivered or, if by facsimile, on the next business day after receipt or, if mailed, five business days after date of mailing. (b) Any notice of default shall only be effective if delivered personally, or sent by registered or certified mail. (c) Any notice from Consultant to Plutonic shall be delivered or addressed to the Plutonic Representatives. (d) All notices to be delivered by mail or facsimile shall be sent to the addresses and facsimile numbers shown below (or as changed by notice given as provided herein). 12. The interpretation and performance of this agreement shall be governed by the domestic law of the State of Western Australia, without regard to conflict of laws principles. 3 13. This agreement constitutes the entire agreement between the parties related to its subject matter. It supersedes all prior proposals, agreements, understandings, representations and conditions. It may not be changed or amended except in writing. CONSULTANT Name: McClintock Associates Pty Limited Address: Level 21, 1 O'Connell Street Sydney, NSW 2000 Australia Tel No.: (02) 9251-4900 Fax No.: (02) 9221-8364 Signature:________________________ PLUTONIC RESOURCES LIMITED Locked Bag 12 Cloisters Square Perth, Western Australia 6850 Tel. No.: (08) 9212-5777 Fax No.: (08) 9322-5700 By:______________________________ Wayne Kirk, Director I hereby acknowledge and agree to the foregoing agreement insofar as it imposes obligations on or otherwise applies to me. _____________________________ Paul McClintock 4 word\pmccons3 EX-10 3 EXHIBIT 10.42 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. 2 (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: 3 (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. 4 (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 5 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 6 (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. 7 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 8 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 9 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. 10 (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 11 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, 12 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 13 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 14 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 15 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, 16 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:__________________ ________________________ 18 EX-10 4 EXHIBIT 10.43 HOMESTAKE MINING COMPANY [HOMESTAKE LOGO HERE] 1999 Change of Control Severance Plan of Homestake Mining Company (alternative I, applicable to persons who were participants in the Change of Control Severance Plan prior to May, 1998). Date: TO: SUBJECT: 1999 Change of Control Severance Plan Homestake Mining Company ("Homestake" or the "Company") considers the establishment and maintenance of a sound and vital management to be essential to protecting and enhancing the best interests of Homestake and its Stockholders. In this connection, Homestake recognizes that the possibility of a change in control and the uncertainty and questions which it may raise among management may result in the departure or distraction of management personnel to the detriment of Homestake and its Stockholders. Accordingly, the Board of Directors of Homestake ("Board") has determined that appropriate steps should be taken to reinforce and encourage the continued attention and dedication of members of Homestake management, including yourself, to their assigned duties without distraction in the face of the potentially disturbing circumstances arising from the possibility of a change in control of Homestake. As a result, the Board has adopted the 1999 Change of Control Severance Plan ("Severance Plan") which will provide you with financial support in the event Homestake undergoes a significant change of ownership or other change in control. The terms of the Severance Plan are set forth in this letter. If you accept the terms of the Severance Plan, you should acknowledge such by signing the Verification and Acceptance at the end of the letter. Your participation in the Severance Plan will begin effective as of the date your acceptance is received by Homestake and will terminate effective as of the date of your 65th birthday. 1. Events Entitling You to Benefits (a) No benefits will be payable under the Severance Plan unless there is a Change of Control (as defined below). You will become entitled to benefits under the Severance Plan if, within the two-year period following a Change of Control and prior to the date of your becoming age 65, (i) Your employment is terminated involuntarily for reasons other than death, disability or discharge for Good and Sufficient Cause (as defined below); or (ii) You voluntarily choose to terminate your employment for Good Reason (as defined below). (b) As used herein, "Change of Control" means any of the following events (except as specifically provided elsewhere): (i) Homestake or any of its Subsidiaries is a party to a consolidation or merger or other combination, or there is an acquisition by Homestake 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 Homestake 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 Homestake or the resulting or surviving publicly held corporation or entity (if not Homestake) is held by the Stockholders of Homestake immediately preceding such event; (ii) At least 75% in fair market value of Homestake's assets are sold; or (iii)Capital stock having at least 25% in voting power in election of directors of Homestake 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 clause 1(b), holders of Homestake Canada Inc. Exchangeable Shares shall be deemed to be Stockholders of Homestake. (c) As used herein, voluntary termination by you of your employment for "Good Reason" means termination after a Change of Control of Homestake following the occurrence of one of the following events without your express written consent: (i) The assignment by Homestake to you of any duties inconsistent with your positions, duties, responsibilities, and status with Homestake immediately prior to the Change of Control, provided, however, that for purposes of this subclause 1(c)(i), the amount "50%" shall be substituted for "62.5%" in subclause 1(b)(i) above (definition of "Change of Control") and subclauses 1(b)(ii) and (iii) shall not apply; (ii) A material reduction in your responsibilities, titles, or offices as in effect immediately prior to the Change of Control, or any removal of you from or any failure to re-elect you to any such positions, except in connection with the involuntary termination of your employment for Good and Sufficient Cause, or as a result of your death, disability or retirement, or voluntary 2 termination by you for other than Good Reason; provided, however, that for purposes of this subclause 1(c)(ii), the amount "50%" shall be substituted for "62.5%" in subclause 1(b)(i) above (definition of "Change of Control"); (iii)A reduction by Homestake in your base salary as in effect immediately prior to the Change of Control; (iv) If there has been a change in the principal executive office of Homestake to a location more than 50 miles from the location of the principal executive office of Homestake immediately prior to the Change of Control, the requirement by Homestake that you 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 your business travel obligations immediately prior to the Change of Control; provided, however, that this subclause 1(c)(iv) shall not apply if the new location at which you are to be based is as close to or closer to your principal residence than the prior location at which you were based; (v) The requirement by Homestake that you 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 your business travel obligations immediately prior to the Change of Control; provided, however, that for purposes of this subclause 1(c)(v), the amount "50%" shall be substituted for "62.5%" in subclause 1(b)(i) above (definition of "Change of Control") and subclauses 1(b)(ii) and (iii) shall not apply; and provided, further, that this subclause 1(c)(v) shall not apply if the new location at which you are to be based is as close to or closer to your principal residence than the prior location at which you were based; (vi) The failure by Homestake to continue in effect, or a change of your 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 you are participating 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 your benefits under all Existing Plans and all amendments thereto and plans substituted therefor, as compared to your benefits under Existing Plans as they existed immediately prior to the Change of Control, or the failure by Homestake to provide you with the number of paid 3 vacation days to which you are entitled in accordance with Homestake's general vacation policy in effect immediately prior to the Change of Control; or (vii)The failure of Homestake to obtain the express assumption by any successor of Homestake's obligations under the Severance Plan, as contemplated in Section 3. (e) As used herein, "Good and Sufficient Cause" means any act of fraud or dishonesty, or conviction of a felony involving moral turpitude or your knowingly engaging in acts seriously detrimental to Homestake. 2. Severance Payment and Benefits Payable to You. (a) As the Severance Payment hereunder, you will be entitled to receive a lump sum cash payment equal to two [three*] times your highest "Annual Compensation" during the three calendar years immediately preceding the date of your termination. The lump sum cash payment shall be payable in full within 10 calendar days of the occurrence of the first event entitling you to benefits under the Plan. The foregoing notwithstanding, if, at the date of the occurrence of the first event entitling you to benefits under the Severance Plan, your age is greater than 63 [62*], then the amount of the lump sum cash payment payable to you shall be reduced by multiplying the amount otherwise payable by a fraction, (i) the numerator of which is the number of weeks (or part thereof) from the date of such first event until your 65th birthday and (ii) the denominator of which is the number "104" ["156"*]. (b) You will be entitled to the continuation of the following benefits: (i) Continuation of participation and coverage for a period of two [three*] years from the date of your termination, or until your 65th birthday if earlier, under all Homestake life, health, accident, disability or similar plans providing welfare benefits, and all fringe benefit plans and programs in which you are participating immediately prior to your termination of employment, under the same coverages and on the same terms as in effect immediately prior to the date of your termination (or in the case of your voluntary termination for Good Reason following a Change of Control as a result of a reduction in benefits, such coverages and terms as were in effect immediately prior to a Change of Control); provided, however, that if your continued participation is not possible under the general terms and provisions of such plans and programs, Homestake shall arrange to provide you with substantially similar benefits; and provided further, that, except as provided in such plans or in existing agreements, you will not have continued participation in Homestake's bonus plans, stock option, stock appreciation and share rights plans, or any other similar incentive based compensation plan or the plans and programs described in clause 2(c) below. _________ * Chief Executive Officer and Chief Operating Officer only. 4 (ii) Relocation assistance, to the extent not provided by another employer. (c) Benefit accruals under Homestake employee benefit plans qualified under Section 401(a) and 401(k) of the Code and under any supplemental retirement plan or executive supplemental retirement plan in which you are participating immediately prior to your termination shall cease as of the date of your termination. You will become entitled to payment of benefits, if any, under such plans in accordance with their terms. (d) Benefits payable under the Severance Plan will be in lieu of any severance pay benefits provided under any Homestake severance pay policy provided, however, that if Homestake has a severance pay policy that would apply to you in the absence of the Severance Plan that would permit payment of a greater amount than provided for in clause 2(a), then you will be entitled to receive that greater amount. In the event you have an outstanding employment agreement with Homestake in effect as of your date of termination and such agreement provides you with compensation and benefits which will continue during the period of time coincident with that covered by the Severance Plan, your benefits under the Severance Plan will be provided only to the extent they exceed the benefits under such agreement. (e) As used in clause 2(a), "Annual Compensation" includes: all regular base salary and performance bonuses paid under the Homestake Variable Pay Plan which are or would be reported on your Form W-2 for any calendar year; any pre-tax reductions of such compensation made at your 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. "Annual 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) to you and not described in the preceding sentence. 3. Successors As used herein, Homestake means Homestake (as defined above) and any successor to its business and/or assets. Homestake will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of Homestake by agreement to expressly assume Homestake's obligations under the Plan in the same manner and to the same extent that Homestake would be required to perform if no such succession had taken place. 4. Arbitration 5 Any controversy between you and Homestake involving the construction or application of any of the terms, provisions, or conditions of this Agreement 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 may be entered by any court having jurisdiction thereof. The exclusive location of the arbitration shall be San Francisco, California. The expenses reasonably incurred by both parties in connection with arbitration, including attorney fees, shall be borne by Homestake. 5. Tax Gross-up (a) Sections 280G and 4999 of the Code imposes penalties on the payor and payee of certain "excess parachute payments." Very generally, "parachute payments" are amounts which are paid as a result of the change of control of a corporation and the present value of which equals or exceeds a threshold of three times the employee's average annual taxable compensation (excluding deferred compensation) for the five years preceding the year in which a change of control occurs. If the employee has been with Homestake, including predecessor or related entities, for less than five years, the employee's average annual compensation is that earned during the period of employment. If the threshold is exceeded, "parachute payments" which exceed one times your average annual taxable compensation for the five-year period preceding the change of control will be deemed "excess parachute payments" which are (i) not deductible by the payor corporation, and (ii) subject the payee to a non-deductible excise tax equal to 20% of the payment. (b) The IRS has proposed regulations which define a "change of control." Some or all of the events which constitute a Change of Control for purposes of the Severance Plan also constitute a change of control under the regulations. In the event a Change of Control occurs which also constitutes a change of control under the IRS regulations, you will be subject to the non- deductible excise tax if your benefits under the Severance Plan, together with any other amounts that are deemed to be conditioned on a change of control, equal or exceed the threshold amount. (c) If you are subject to the excise tax, you 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 you are 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 Homestake (the "Consultant"). Determinations of the Consultant shall be binding upon you and Homestake. Unless the Consultant concludes that a contrary method is clearly preferable, the gross-up payment shall be calculated on the assumption that you are subject to tax at the sum of the maximum marginal tax rates applicable to the state of your residence, with no adjustment for the amount of your income, for 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 Homestake shall make the gross-up payment in a lump sum within 10 days of receipt of the Consultant's determination. For example, the rate applicable to a California 6 resident in 1998 would be 70.35% (39.6% federal income tax, plus 20% excise tax, plus 1.45% federal Medicare tax, plus 9.3% California income tax). The Consultant shall provide you and Homestake with a written notice of the amount of the excise taxes that you are required to pay and the amount of the gross-up payment, including any necessary calculations in support of its conclusions. Homestake shall pay all fees and expenses of the Consultant. (d) You agree to notify Homestake in writing within five days if the Internal Revenue Service takes the position that the amount of excise tax paid by you was incorrect. Homestake has the right to challenge any excise tax determinations made by the Internal Revenue Service, and you must cooperate fully with Homestake in connection with any such challenge. Homestake shall control any such challenge and shall bear all costs associated with the challenge. After Homestake 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 will be recalculated by the Consultant to reflect the actual excise taxes and any related interest and penalties. Homestake will pay you any deficiency in the gross-up payment and any related interest and penalties payable (or will you return to Homestake any excess gross-up payment and any interest received thereon) within 10 days of receipt of the revised calculations from the Consultant. 6. Termination of Prior Plan and Rights Thereunder. (a) Upon execution and delivery of this Agreement by Homestake and you, this Severance Plan and Agreement supercedes and replaces the prior severance plan and Agreement between Homestake and you dated as of _________________, as heretofore amended from time to time (collectively "Prior Severance Plan"), and all rights that you may have under that Prior Severance Plan are terminated. (B) WITHOUT LIMITING THE GENERALITY OF CLAUSE 6(A), YOU SPECIFICALLY UNDERSTAND AND AGREE THAT, UPON EXECUTION AND DELIVERY OF THIS AGREEMENT BY HOMESTAKE AND YOU, THE 1998 ACQUISITION BY HOMESTAKE OF PLUTONIC RESOURCES LIMITED, A NEW SOUTH WALES COMPANY, WILL CEASE TO BE A "CHANGE OF CONTROL" FOR ANY AND ALL PURPOSES OF ALL SEVERANCE PLANS, THE HOMESTAKE EXECUTIVE SUPPLEMENTAL RETIREMENT PLAN, STOCK OPTIONS, STOCK APPRECIATION RIGHTS AND 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), AND ALL OTHER EMPLOYEE BENEFIT PLANS OF HOMESTAKE AND ITS SUBSIDIARIES. YOU UNDERSTAND AND ACKNOWLEDGE THAT YOU ARE WAIVING AND GIVING UP POTENTIALLY VALUABLE RIGHTS UNDER THE PRIOR SEVERANCE PLAN IN RESPECT OF THE ACQUISITION BY HOMESTAKE OF PLUTONIC RESOURCES LIMITED, INCLUDING BUT NOT LIMITED TO THE RIGHT TO RECEIVE SEVERANCE PAY AND OTHER BENEFITS SHOULD YOUR EMPLOYMENT BE TERMINATED INVOLUNTARILY FOR REASONS OTHER THAN DISCHARGE FOR GOOD AND SUFFICIENT CAUSE (AS DEFINED IN THE PRIOR SEVERANCE AGREEMENT) OR SHOULD YOU VOLUNTARILY CHOOSE TO TERMINATE YOUR EMPLOYMENT FOR GOOD REASON (AS DEFINED IN THE PRIOR SEVERANCE AGREEMENT). 7. General Provisions 7 (a) No provision in the Severance Plan shall be construed to guarantee continued employment by Homestake for any specified period of time, or to impair or interfere with Homestake's right to dismiss its employees. (b) You will be entitled to reimbursement by Homestake of all reasonable expenses, including attorney's fees, incurred by you in enforcing the provisions of the Severance Plan. (c) For purposes of the Severance Plan, "Subsidiary" of Homestake means any corporation or other entity that is controlled by Homestake. (d) All payments are subject to applicable withholding taxes and income taxes. 8. Administration and Interpretation (a) This Severance 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) The Severance Plan shall be administered by the Compensation Committee of the Board ("Committee"). The Committee shall have the discretion and authority to make, amend, interpret and enforce all appropriate rules and regulations for the administration of the Severance Plan and decide or resolve any and all questions including interpretations of the Severance Plan, as may arise in connection with the Severance Plan. (c) In the administration of the Severance 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 Homestake. (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 Severance Plan and the rules and regulations promulgated hereunder shall be final and conclusive and binding.. (e) Homestake 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 the Severance Plan, except in the case of willful misconduct by that member. (f) To enable the Committee to perform its functions, Homestake shall supply full and timely information to the Committee on all matters relating to your compensation, the date and circumstances of the termination of your employment, and such other pertinent information as the Committee may reasonably require. (g) If you believes that you are entitled to a benefit or greater benefit as the case may be, under the Severance Plan, you may submit a signed, written application to the Committee within 90 8 days of having been denied such benefit. You 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 you 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 Severance Plan and to determine eligibility for benefits under the terms of the Severance Plan, will generally make a final, written determination of your eligibility for benefits within 60 days of receipt of the request for review. Please indicate your acceptance of the terms of the Severance Plan by signing one copy of this letter and returning it to me in the enclosed envelope. The second copy is for your own records. Sincerely, HOMESTAKE MINING COMPANY By ______________________________ VERIFICATION AND ACCEPTANCE I have read the foregoing letter and understand that the 1999 Change of Control Severance Plan set out above ("Severance Plan") defines the entire obligation of Homestake with respect to the benefits identified above and is limited to those benefits. I understand that the Severance Plan modifies Homestake's obligations under Homestake's general severance pay policy in the manner described above and that the opportunity to receive the special benefits provided under the Plan represents valuable consideration for this modification. I ALSO UNDERSTAND THAT BY ACCEPTING AND AGREEING TO THE SEVERANCE PLAN I WAIVE AND GIVE UP VALUABLE RIGHTS UNDER THE PRIOR SEVERANCE PLAN AND AGREEMENT BETWEEN HOMESTAKE AND ME DATED AS OF ________________, AS HERETOFORE AMENDED FROM TIME TO TIME (COLLECTIVELY THE "PRIOR SEVERANCE PLAN"). WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, I SPECIFICALLY UNDERSTAND AND AGREE THAT, UPON EXECUTION AND DELIVERY OF THIS AGREEMENT BY HOMESTAKE AND ME, THE 1998 ACQUISITION BY HOMESTAKE OF PLUTONIC RESOURCES LIMITED, A NEW SOUTH WALES COMPANY, WILL CEASE TO BE A "CHANGE OF CONTROL" FOR ANY AND ALL PURPOSES OF THE PRIOR SEVERANCE PLAN. I enter into this agreement in recognition that the Severance Plan provides other valuable benefits that I do not have under the Prior Severance Plan. I accept the terms of the Severance Plan. Date:_____________ __________________________________ 9 EX-10 5 EXHIBIT 10.44 HOMESTAKE MINING COMPANY [HOMESTAKE LOGO HERE] 1999 Change of Control Severance Plan of Homestake Mining Company (alternative II, applicable to persons who became participants in the Change of Control Severance Plan after May, 1998). Date: TO: SUBJECT: 1999 Change of Control Severance Plan Homestake Mining Company ("Homestake" or the "Company") considers the establishment and maintenance of a sound and vital management to be essential to protecting and enhancing the best interests of Homestake and its Stockholders. In this connection, Homestake recognizes that the possibility of a change in control and the uncertainty and questions which it may raise among management may result in the departure or distraction of management personnel to the detriment of Homestake and its Stockholders. Accordingly, the Board of Directors of Homestake ("Board") has determined that appropriate steps should be taken to reinforce and encourage the continued attention and dedication of members of Homestake management, including yourself, to their assigned duties without distraction in the face of the potentially disturbing circumstances arising from the possibility of a change in control of Homestake. As a result, the Board has adopted the 1999 Change of Control Severance Plan ("Severance Plan") which will provide you with financial support in the event Homestake undergoes a significant change of ownership or other change in control. The terms of the Severance Plan are set forth in this letter. If you accept the terms of the Severance Plan, you should acknowledge such by signing the Verification and Acceptance at the end of the letter. Your participation in the Severance Plan will begin effective as of the date your acceptance is received by Homestake and will terminate effective as of the date of your 65th birthday. 1. Events Entitling You to Benefits (a) No benefits will be payable under the Severance Plan unless there is a Change of Control (as defined below). You will become entitled to benefits under the Severance Plan if, within the two-year period following a Change of Control and prior to the date of your becoming age 65, (i) Your employment is terminated involuntarily for reasons other than death, disability or discharge for Good and Sufficient Cause (as defined below); or (ii) You voluntarily choose to terminate your employment for Good Reason (as defined below). (b) As used herein, "Change of Control" means any of the following events (except as specifically provided elsewhere): (i) Homestake or any of its Subsidiaries is a party to a consolidation or merger or other combination, or there is an acquisition by Homestake 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 Homestake 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 Homestake or the resulting or surviving publicly held corporation or entity (if not Homestake) is held by the Stockholders of Homestake immediately preceding such event; (ii) At least 75% in fair market value of Homestake's assets are sold; or (iii)Capital stock having at least 25% in voting power in election of directors of Homestake 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 clause 1(b), holders of Homestake Canada Inc. Exchangeable Shares shall be deemed to be Stockholders of Homestake. (c) As used herein, voluntary termination by you of your employment for "Good Reason" means termination after a Change of Control of Homestake following the occurrence of one of the following events without your express written consent: (i) The assignment by Homestake to you of any duties inconsistent with your positions, duties, responsibilities, and status with Homestake immediately prior to the Change of Control, provided, however, that for purposes of this subclause 1(c)(i), the amount "50%" shall be substituted for "62.5%" in subclause 1(b)(i) above (definition of "Change of Control") and subclauses 1(b)(ii) and (iii) shall not apply; (ii) A material reduction in your responsibilities, titles, or offices as in effect immediately prior to the Change of Control, or any removal of you from or any failure to re-elect you to any such positions, except in connection with the involuntary termination of your employment for Good and Sufficient Cause, or as a result of your death, disability or retirement, or voluntary 2 termination by you for other than Good Reason; provided, however, that for purposes of this subclause 1(c)(ii), the amount "50%" shall be substituted for "62.5%" in subclause 1(b)(i) above (definition of "Change of Control"); (iii)A reduction by Homestake in your base salary as in effect immediately prior to the Change of Control; (iv) If there has been a change in the principal executive office of Homestake to a location more than 50 miles from the location of the principal executive office of Homestake immediately prior to the Change of Control, the requirement by Homestake that you 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 your business travel obligations immediately prior to the Change of Control; provided, however, that this subclause 1(c)(iv) shall not apply if the new location at which you are to be based is as close to or closer to your principal residence than the prior location at which you were based; (v) The requirement by Homestake that you 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 your business travel obligations immediately prior to the Change of Control; provided, however, that for purposes of this subclause 1(c)(v), the amount "50%" shall be substituted for "62.5%" in subclause 1(b)(i) above (definition of "Change of Control") and subclauses 1(b)(ii) and (iii) shall not apply; and provided, further, that this subclause 1(c)(v) shall not apply if the new location at which you are to be based is as close to or closer to your principal residence than the prior location at which you were based; (vi) The failure by Homestake to continue in effect, or a change of your 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 you are participating 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 your benefits under all Existing Plans and all amendments thereto and plans substituted therefor, as compared to your benefits under Existing Plans as they existed immediately prior to the Change of Control, or the failure by Homestake to provide you with the number of paid 3 vacation days to which you are entitled in accordance with Homestake's general vacation policy in effect immediately prior to the Change of Control; or (vii)The failure of Homestake to obtain the express assumption by any successor of Homestake's obligations under the Severance Plan, as contemplated in Section 3. (e) As used herein, "Good and Sufficient Cause" means any act of fraud or dishonesty, or conviction of a felony involving moral turpitude or your knowingly engaging in acts seriously detrimental to Homestake. 2. Severance Payment and Benefits Payable to You. (a) As the Severance Payment hereunder, you will be entitled to receive a lump sum cash payment equal to two [three*] times your highest "Annual Compensation" during the three calendar years immediately preceding the date of your termination. The lump sum cash payment shall be payable in full within 10 calendar days of the occurrence of the first event entitling you to benefits under the Plan. The foregoing notwithstanding, if, at the date of the occurrence of the first event entitling you to benefits under the Severance Plan, your age is greater than 63 [62*], then the amount of the lump sum cash payment payable to you shall be reduced by multiplying the amount otherwise payable by a fraction, (i) the numerator of which is the number of weeks (or part thereof) from the date of such first event until your 65th birthday and (ii) the denominator of which is the number "104" ["156"*]. (b) You will be entitled to the continuation of the following benefits: (i) Continuation of participation and coverage for a period of two [three*] years from the date of your termination, or until your 65th birthday if earlier, under all Homestake life, health, accident, disability or similar plans providing welfare benefits, and all fringe benefit plans and programs in which you are participating immediately prior to your termination of employment, under the same coverages and on the same terms as in effect immediately prior to the date of your termination (or in the case of your voluntary termination for Good Reason following a Change of Control as a result of a reduction in benefits, such coverages and terms as were in effect immediately prior to a Change of Control); provided, however, that if your continued participation is not possible under the general terms and provisions of such plans and programs, Homestake shall arrange to provide you with substantially similar benefits; and provided further, that, except as provided in such plans or in existing agreements, you will not have continued participation in Homestake's bonus plans, stock option, stock appreciation and share rights plans, or any other similar incentive based compensation plan or the plans and programs described in clause 2(c) below. _________ * Chief Executive Officer and Chief Operating Officer only. 4 (ii) Relocation assistance, to the extent not provided by another employer. (c) Benefit accruals under Homestake employee benefit plans qualified under Section 401(a) and 401(k) of the Code and under any supplemental retirement plan or executive supplemental retirement plan in which you are participating immediately prior to your termination shall cease as of the date of your termination. You will become entitled to payment of benefits, if any, under such plans in accordance with their terms. (d) Benefits payable under the Severance Plan will be in lieu of any severance pay benefits provided under any Homestake severance pay policy provided, however, that if Homestake has a severance pay policy that would apply to you in the absence of the Severance Plan that would permit payment of a greater amount than provided for in clause 2(a), then you will be entitled to receive that greater amount. In the event you have an outstanding employment agreement with Homestake in effect as of your date of termination and such agreement provides you with compensation and benefits which will continue during the period of time coincident with that covered by the Severance Plan, your benefits under the Severance Plan will be provided only to the extent they exceed the benefits under such agreement. (e) As used in clause 2(a), "Annual Compensation" includes: all regular base salary and performance bonuses paid under the Homestake Variable Pay Plan which are or would be reported on your Form W-2 for any calendar year; any pre-tax reductions of such compensation made at your 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. "Annual 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) to you and not described in the preceding sentence. 3. Successors As used herein, Homestake means Homestake (as defined above) and any successor to its business and/or assets. Homestake will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of Homestake by agreement to expressly assume Homestake's obligations under the Plan in the same manner and to the same extent that Homestake would be required to perform if no such succession had taken place. 4. Arbitration 5 Any controversy between you and Homestake involving the construction or application of any of the terms, provisions, or conditions of this Agreement 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 may be entered by any court having jurisdiction thereof. The exclusive location of the arbitration shall be San Francisco, California. The expenses reasonably incurred by both parties in connection with arbitration, including attorney fees, shall be borne by Homestake. 5. Tax Gross-up (a) Sections 280G and 4999 of the Code imposes penalties on the payor and payee of certain "excess parachute payments." Very generally, "parachute payments" are amounts which are paid as a result of the change of control of a corporation and the present value of which equals or exceeds a threshold of three times the employee's average annual taxable compensation (excluding deferred compensation) for the five years preceding the year in which a change of control occurs. If the employee has been with Homestake, including predecessor or related entities, for less than five years, the employee's average annual compensation is that earned during the period of employment. If the threshold is exceeded, "parachute payments" which exceed one times your average annual taxable compensation for the five-year period preceding the change of control will be deemed "excess parachute payments" which are (i) not deductible by the payor corporation, and (ii) subject the payee to a non-deductible excise tax equal to 20% of the payment. (b) The IRS has proposed regulations which define a "change of control." Some or all of the events which constitute a Change of Control for purposes of the Severance Plan also constitute a change of control under the regulations. In the event a Change of Control occurs which also constitutes a change of control under the IRS regulations, you will be subject to the non- deductible excise tax if your benefits under the Severance Plan, together with any other amounts that are deemed to be conditioned on a change of control, equal or exceed the threshold amount. (c) If you are subject to the excise tax, you 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 you are 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 Homestake (the "Consultant"). Determinations of the Consultant shall be binding upon you and Homestake. Unless the Consultant concludes that a contrary method is clearly preferable, the gross-up payment shall be calculated on the assumption that you are subject to tax at the sum of the maximum marginal tax rates applicable to the state of your residence, with no adjustment for the amount of your income, for 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 Homestake shall make the gross-up payment in a lump sum within 10 days of receipt of the Consultant's determination. For example, the rate applicable to a California 6 resident in 1998 would be 70.35% (39.6% federal income tax, plus 20% excise tax, plus 1.45% federal Medicare tax, plus 9.3% California income tax). The Consultant shall provide you and Homestake with a written notice of the amount of the excise taxes that you are required to pay and the amount of the gross-up payment, including any necessary calculations in support of its conclusions. Homestake shall pay all fees and expenses of the Consultant. (d) You agree to notify Homestake in writing within five days if the Internal Revenue Service takes the position that the amount of excise tax paid by you was incorrect. Homestake has the right to challenge any excise tax determinations made by the Internal Revenue Service, and you must cooperate fully with Homestake in connection with any such challenge. Homestake shall control any such challenge and shall bear all costs associated with the challenge. After Homestake 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 will be recalculated by the Consultant to reflect the actual excise taxes and any related interest and penalties. Homestake will pay you any deficiency in the gross-up payment and any related interest and penalties payable (or will you return to Homestake any excess gross-up payment and any interest received thereon) within 10 days of receipt of the revised calculations from the Consultant. 6. [Reserved] 7. General Provisions (a) No provision in the Severance Plan shall be construed to guarantee continued employment by Homestake for any specified period of time, or to impair or interfere with Homestake's right to dismiss its employees. (b) You will be entitled to reimbursement by Homestake of all reasonable expenses, including attorney's fees, incurred by you in enforcing the provisions of the Severance Plan. (c) For purposes of the Severance Plan, "Subsidiary" of Homestake means any corporation or other entity that is controlled by Homestake. (d) All payments are subject to applicable withholding taxes and income taxes. 8. Administration and Interpretation (a) This Severance 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) The Severance Plan shall be administered by the Compensation Committee of the Board ("Committee"). The Committee shall have the discretion and authority to make, amend, 7 interpret and enforce all appropriate rules and regulations for the administration of the Severance Plan and decide or resolve any and all questions including interpretations of the Severance Plan, as may arise in connection with the Severance Plan. (c) In the administration of the Severance 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 Homestake. (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 Severance Plan and the rules and regulations promulgated hereunder shall be final and conclusive and binding. (e) Homestake 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 the Severance Plan, except in the case of willful misconduct by that member. (f) To enable the Committee to perform its functions, Homestake shall supply full and timely information to the Committee on all matters relating to your compensation, the date and circumstances of the termination of your employment, and such other pertinent information as the Committee may reasonably require. (g) If you believes that you are entitled to a benefit or greater benefit as the case may be, under the Severance Plan, you may submit a signed, written application to the Committee within 90 days of having been denied such benefit. You 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 you 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 Severance Plan and to determine eligibility for benefits under the terms of the Severance Plan, will generally make a final, written determination of your eligibility for benefits within 60 days of receipt of the request for review. Please indicate your acceptance of the terms of the Severance Plan by signing one copy of this letter and returning it to me in the enclosed envelope. The second copy is for your own records. Sincerely, HOMESTAKE MINING COMPANY By ______________________________ VERIFICATION AND ACCEPTANCE 8 I have read the foregoing letter and understand that the 1999 Change of Control Severance Plan set out above ("Severance Plan") defines the entire obligation of Homestake with respect to the benefits identified above and is limited to those benefits. I understand that the Severance Plan modifies Homestake's obligations under Homestake's general severance pay policy in the manner described above and that the opportunity to receive the special benefits provided under the Plan represents valuable consideration for this modification. I accept the terms of the Severance Plan. Date:_____________ __________________________________ 9 EX-10 6 EXHIBIT 10.45 First Amendment to the Retirement Plan for Outside Directors of Homestake Mining Company, dated as of January 6, 2000. FIRST AMENDMENT TO THE RETIREMENT PLAN FOR OUTSIDE DIRECTORS OF HOMESTAKE MINING COMPANY 1. Capitalized terms used herein which are defined in the Retirement Plan For Outside Directors of Homestake Mining Company have the same meaning as so defined. 2. The first sentence of Section 4.1 of the Retirement Plan For Outside Directors of Homestake Mining Company is hereby deleted and replaced with the following: "A Participant who ceases to be a Director after the Effective Date, and who is vested in accordance with Section 3.2, or a former Director who becomes a Participant upon designation by the Plan Administrator as an Outside Director shall be entitled to receive a monthly Retirement Benefit. (i) For Participants who ceased to be Directors prior to January 1, 2000, the monthly Retirement Benefit shall be equal to one/twelfth (1/12) of the Retainer Fee in effect at the time the Participant ceased to be a Director. (ii) For Participants who cease to be Directors on or after January 1, 2000, the monthly Retirement Benefit shall be equal to the amount obtained by the following formula: $1,333.33 x M1 + $1,666.66 x M2 , ----------------------------------- M1 + M2 where M1 is equal to the number of Months of Credited Service prior to January 1, 2000 and M2 is equal to the number of Months of Credited Service after January 1, 2000. IN WITNESS WHEREOF, Homestake has caused this First Amendment to the Retirement Plan For Outside Directors of Homestake Mining Company to be executed this 6th day of January, 2000. HOMESTAKE MINING COMPANY By /s/ Wayne Kirk Vice President EX-10 7 EXHIBIT 10.46 Amended Form of Stock Option Agreement under the 1996 Plan. HOMESTAKE MINING COMPANY _____________ _______________________ _______________________ _______________________ _______________________ RE: OPTION TO PURCHASE SHARES OF $1.00 PAR VALUE COMMON STOCK OF HOMESTAKE MINING COMPANY Dear _________: Homestake Mining Company ("Company") hereby grants you an option to purchase ________ shares of its $1.00 par value common stock at a price of $____ per share on the following terms: 1. The option is intended to be a non-statutory option that does not satisfy the requirements of Section 422A of the Internal Revenue Code. 2. The option shall expire on the earlier of ___________ or the occurrence of the first of the following: a. Three months after the termination of your active employment with the company or any affiliate (as hereafter defined) for reason other than retirement, death, disability, or cause. b. Thirty-six months after termination of your active employment with the Company or any affiliate by retirement. c. Thirty-six months after the termination of your active employment with the Company or any affiliate by death or disability. d. Except as provided in paragraph 2.b. and 2.c., six months after termination of your active employment with the Company or any affiliate for any reason other than cause if you should die or become disabled within three months after such termination. e. Immediately upon termination of your active employment with the Company or any affiliate for cause, as determined by the Compensation Committee of the Board of Directors of the Company ("Committee"). For purposes of this agreement, (i) affiliate includes any corporation or other form of enterprise in which the Company has, directly or indirectly, an ownership interest of 50% or more or equivalent power to direct the management and policy of such enterprise by contract or otherwise; (ii) if your employment with the Company or an affiliate terminates and immediately thereafter you become a consultant to the Company or an affiliate, such service may be treated as employment with the Company but only if the Committee in its sole discretion so determines; (iii) any determination by the Committee made in good faith shall be final unless clearly erroneous; and (iv) any determination by the Committee as to a matter reserved to the sole discretion of the Committee shall be final. 3. The option shall become exercisable in installments beginning ________ and on the same day of each of the next three years, as to 25% of the shares each year. To the extent not previously exercised, such installments shall accumulate and be exercisable, in whole or in part, at any time before expiration of the option. 4. Except as hereafter provided, if for any reason your active employment with the Company or any affiliates terminates before one or more installments become exercisable, the option shall be exercisable only as to any installments which became exercisable before termination and then only to the extent not previously exercised. Notwithstanding the foregoing: a. Upon your death or total and permanent disability occurring while employed, all installments shall be immediately exercisable to the extent not previously exercised; and b. If, within two years after a "Change of Control," your employment is terminated involuntarily for reasons other than death, disability or discharge for "Good and Sufficient Cause," or you voluntarily choose to terminate your employment for "Good Reason" (all as defined in the Company's 1999 Change of Control Severance Plan as amended from time to time), all installments shall be immediately exercisable to the extend not previously exercised. The provisions of this paragraph 4 are in addition to any rights that you may have under the Plan under which this option was issued. 5. Except as permitted by the Committee, the option is transferable by you only by will or the laws of descent or distribution. Except as permitted by the Committee, it may be exercised during your lifetime only by you or by your legal representative duly appointed by a court of competent jurisdiction. After your death, it may be exercised only by your executor or administrator or by persons who acquire it directly from you by bequest or inheritance or as permitted by the Committee. 6. If a dividend is declared on common stock of the Company payable in common stock, the unexercised shares shall be increased and the per share option price shall be decreased proportionately to reflect the dividend as the Committee may determine. 7. If any change is made in the common stock through merger, consolidation, reorganization, recapitalization, split-up, combination of shares, exchange of shares, change in corporate structure or otherwise or a stock dividend is payable in stock other than common stock, an appropriate adjustment shall be made for shares not previously exercised as to the number of any kind of securities or rights and the price per share as the Committee may determine. 8. You shall not be a stockholder, nor be entitled to any privileges of stock ownership, under this agreement until shares are actually issued and delivered to you. 9. a. The option may be exercised from time to time in accordance with this agreement by written notice signed and delivered by you or your legal representative (or after your death, 2 by your executor, administrator, heir or legatee, as the case may be), or other permitted transferee to the Secretary of the Company at the Company's principal office. b. The notice shall state the number of shares as to which the option is exercised, the date of exercise and how the exercise price will be paid. The notice shall be accompanied by payment in cash or by delivery of a check, bank draft or money order, or, as more specifically provided in the Plan, by common stock duly endorsed for transfer or a combination thereof for the full exercise price. The fair market value of any common stock so delivered shall be the mean between the high and low sales price of the shares on the composite tape for New York Stock Exchange-listed securities on the day of exercise, or if no sales of shares of common stock shall have been reported on such composite tape on that day, then such amount as the Committee shall determine to be the fair market value on such day. 10. Before delivery of any shares, the Company shall determine the amount of federal and state income tax or other tax withholding required by law and you shall pay the Company such amount, to the extent not previously withheld. 11. a. Upon receipt of notice of exercise by the Company, this agreement shall become a contract for the purchase and sale of the shares specified in the notice and, except as herein provided, neither you nor the Company shall have the right to terminate or rescind the contract. The Company shall tender the shares within a reasonable time. b. If the Committee determines that any law or regulation or requirement of any securities exchange requires the Company to take any action before issuance or delivery of shares or prohibits or delays their issuance or delivery then the date for payment, issuance and delivery, shall be extended for the period necessary to take such action, or during the period of such prohibition or limitation delay. 12. In the event of certain corporate transactions or changes of control, the option may become immediately exercisable in accordance with the terms of the Plan. 13. By exercising the option, you agree that you are acquiring the shares for investment and will not transfer any shares in violation of applicable federal and state securities laws. Any shares delivered under this agreement may bear such legends and may be subject to such restrictions on transfer as the Committee determines to be necessary or appropriate. You agree to execute such agreements as to transfer of such shares as the Committee may deem advisable. You agree that the Company shall not be required to register any shares acquired by you and that you may be required to hold such shares indefinitely in the absence of registration or an exemption from registration under federal and state securities laws. You agree that any shares purchased by you may be issued in the name of you and your spouse if you then or recently lived in a community property state. 14. This agreement incorporates the Plan by reference. In the event of a conflict between the terms of this agreement and the Plan, the Plan, as interpreted and administered by the Committee, shall prevail. 15. The option may be exercised only as to whole shares. No fractional shares will be issued or delivered. 3 Please indicate your acceptance of the foregoing by signing the agreement and returning it to the Company in the enclosed envelope. Very truly yours, HOMESTAKE MINING COMPANY By____________________________ Acceptance and Agreement: The foregoing agreement is hereby accepted by me as of ___________ (date). ___________________________________ (Signature ) 4 EX-10 8 EXHIBIT 10.47 Amended Form of Performance Based Share Agreement under the 1996 Plan - 1997 Grants. _________, 1997 ___________________ ___________________ ___________________ RE: GRANT OF RIGHT TO RECEIVE PERFORMANCE BASED SHARES Dear ________: Effective upon your entering into this agreement, Homestake Mining Company ("Company") grants you the right to receive _______ shares of its $1.00 value common stock ("Shares") on the following terms and conditions: 1. This grant is made under the Company's Stock Option and Share Rights Plan - 1996 (the "Plan"). Any capitalized terms used in this agreement that are not defined in this agreement have the meanings given to them in the Plan. 2. Effective upon your entering into this agreement, there also will be established for you in the records of the Company a Dividend Equivalency Account. As of each subsequent record date for dividends on the Company's Common Stock, there will be credited to your Dividend Equivalency Account an amount equal to the amount of dividends (a "Dividend Equivalent") that would have been payable in respect of each unvested Share subject to this agreement had such Share been outstanding on that record date. Such Dividend Equivalents will accumulate without interest. At the time your right to receive any Share under this agreement vests, you will also vest in and be entitled to receive the accumulated Dividend Equivalents that have accrued in your Dividend Equivalency Account in respect of such Share. Under no circumstances will you have any rights in or right to receive any Dividend Equivalent until you vest in the Share in respect of which the Dividend Equivalent was credited. If your right to receive any Shares under this agreement is forfeited, your right to receive related Dividend Equivalents will also be forfeited at the same time. Any subsequent reference in this agreement to Shares will be deemed to refer to the related Dividend Equivalents, and any subsequent reference in this agreement to the vesting in and/or issuance of Shares shall be deemed to refer to the vesting in and/or payment of the related Dividend Equivalents. 3. Your right to receive Shares under this agreement is subject to achieving the Annual Performance Goals set out below and is also subject to compliance with the terms and conditions of this agreement. Shares will not be issued, and you will have no rights of ownership in respect of ownership thereof, except and until your rights to the Shares have vested. Except for transfers by will or under laws of descent or distribution, interests in and rights to receive Shares may not be sold, assigned, pledged or otherwise transferred until rights to the Shares have vested and the Shares have been issued. 4. Your right to receive Shares will vest if and to the extent the Annual Performance Goals described below are achieved: (a) For purposes of this agreement, achievement of an "Annual Performance Goal" means that the Company's market capitalization per ounce (expressed in terms of dollars per ounce of proven and probable reserves) has achieved, on a "Measurement Date" set out in paragraph (c) below, the percentage of the arithmetic average of the market capitalizations for the Standard and Poor's Gold and Precious Metals Index companies set out under "Annual Performance Goal" in paragraph (c) below. (b) "Final Performance Date" means December 31, 2000. (c) On each "Measurement Date" set out below, if the Company achieves the Annual Performance Goal for that date, your right to receive Shares will vest as to: (i) 25% of the Shares; and (ii) any Shares as to which your right could have but did not vest on any prior Measurement Date because the Annual Performance Goal for that Measurement Date was not achieved. If the Company fails to achieve the Annual Performance Goal for any Measurement Date, your right to receive Shares will not vest on that Measurement Date, but your right to receive those Shares will vest on any subsequent Measurement Date on which the Annual Performance Goal for that subsequent Measurement Date is achieved. The Measurement Dates and the Annual Performance Goals for each are as follows: Measurement Date Annual Performance Goal 12/31/97 73% 12/31/98 82% 12/31/99 91% 12/31/00 100% (d) For purposes of this agreement, "Standard and Poor's Gold and Precious Metals Index Companies" means those companies whose shares are included in the Standard and Poor's Gold and Precious Metals Index from time to time, notwithstanding that there may be a change in those companies between the date of this agreement and the Final Performance Date. 5. This agreement will expire immediately after the close of business on the Final Performance Date and any rights in respect of Shares that have not vested on or before the Final Performance Date will be forfeited. Except as otherwise provided in connection with Termination of Employment, no rights in respect of Shares will be forfeited prior to the close of business on the Final Performance Date. 6. Except as hereafter provided, all rights to receive Shares under this agreement that have not already vested will expire and be forfeited to the Company if you cease to be an 2 "Employee" (as defined in the Plan) of Homestake or any Affiliate of Homestake prior to any Measurement Date ("Termination of Employment"). If any company or other entity which is your employer ceases to be an Affiliate of Homestake, then you will be deemed to have ceased being an Employee as of the time that company or other entity ceases to be an Affiliate. (a) If your Termination of Employment is because you (i) die, (ii) are Disabled (as defined in the Homestake Retirement Plan), (iii) retire from Homestake or any Affiliated Company on or after your Normal Retirement Date or on your Early Retirement Date (as defined in the Homestake Retirement Plan), or (iv) retire at a time when you are eligible to receive a "Retirement Benefit" under the Homestake Executive Supplemental Retirement Plan, you will continue to be treated as an Employee for a period of thirty-six months following the date of such death, disability or retirement or until the Final Performance Date, whichever is earlier. Rights in respect of Shares that do not vest during that period will be forfeited. (b) If your Termination of Employment takes place within two years following a "Change of Control" and is as a result of (i) termination by the Company other than for "Good and Sufficient Cause" or (ii) termination by you for "Good Reason," (all as defined in the Company's 1999 Change of Control Severance Plan as amended from time to time), then on such termination, your right to receive any Shares that remain unvested under this agreement will immediately vest in full, and you will be entitled to receive all such Shares as of the date of Termination of Employment. The provisions of this paragraph 6(b) are in addition to any rights that you may have under Article XIII of the Plan. (c) The Committee will have the authority, in its discretion, to extend the term of this agreement to include all or part of any period of time during which you continue as an Employee of any corporation, joint venture, partnership or other entity in which Homestake has, directly or indirectly, at least a 20% ownership or profits interest or during which you act as a consultant to Homestake, any of its Affiliates, or any corporation, joint venture, partnership or other entity in which Homestake has, directly or indirectly , at least a 20% ownership or profits interest. 7. You do does not own any Shares granted under this agreement until your right to receive such Shares have vested and such Shares have actually been issued. Until such Share issuance, you will not be entitled to exercise any voting rights or receive dividends in respect of such Shares. 8. Notwithstanding anything contained herein to the contrary, the Company's obligation to issue or deliver Shares pursuant to this agreement will be subject to all applicable laws, rules and regulations, including stock exchange rules. If any laws, rules or regulations require that the Company take any action before issuance and delivery of Shares, then the date of issuance and delivery will be delayed for the period necessary to take such action. 9. As a condition to the issuance and delivery of any Shares which vest under this agreement, the Company will have the right to require you to remit to the Company, or the Company will have the right to withhold from any amounts payable to you, as compensation or 3 otherwise, amounts sufficient to satisfy all federal, state and local tax and other withholding requirements. 10. This agreement incorporates the Plan by reference. In the event of a conflict between the terms of this agreement and the Plan, the Plan, as interpreted and administered by the Committee, will prevail. Please indicate your agreement with the foregoing by signing one copy of this agreement and returning it to the Company in the enclosed envelope. Very truly yours Homestake Mining Company By ______________________ I agree to the foregoing _________________________________ 4 EX-10 9 EXHIBIT 10.48 Amended Form of Performance Based Share Agreement under the 1996 Plan - 1998 Grants. , 1998 Homestake Mining Company 650 California Street San Francisco, CA 94108 RE: GRANT OF RIGHT TO RECEIVE PERFORMANCE BASED SHARES Dear : Effective upon your entering into this agreement, Homestake Mining Company ("Company") grants you the right to receive shares of its $1.00 value common stock ("Shares") on the following terms and conditions: 1. This grant is made under the Company's Stock Option and Share Rights Plan - 1996 (the "Plan"). Any capitalized terms used in this agreement that are not defined in this agreement have the meanings given to them in the Plan. 2. Effective upon your entering into this agreement, there also will be established for you in the records of the Company a Dividend Equivalency Account. As of each subsequent record date for dividends on the Company's Common Stock, there will be credited to your Dividend Equivalency Account an amount equal to the amount of dividends (a "Dividend Equivalent") that would have been payable in respect of each unvested Share subject to this agreement had such Share been outstanding on that record date. Such Dividend Equivalents will accumulate without interest. At the time your right to receive any Share under this agreement vests, you will also vest in and be entitled to receive the accumulated Dividend Equivalents that have accrued in your Dividend Equivalency Account in respect of such Share. Under no circumstances will you have any rights in or right to receive any Dividend Equivalent until you vest in the Share in respect of which the Dividend Equivalent was credited. If your right to receive any Shares under this agreement is forfeited, your right to receive related Dividend Equivalents will also be forfeited at the same time. Any subsequent reference in this agreement to Shares will be deemed to refer to the related Dividend Equivalents, and any subsequent reference in this agreement to the vesting in and/or issuance of Shares shall be deemed to refer to the vesting in and/or payment of the related Dividend Equivalents. 3. Your right to receive Shares under this agreement is subject to achieving the Annual Performance Goals set out below and is also subject to compliance with the terms and conditions of this agreement. Shares will not be issued, and you will have no rights of ownership in respect of ownership thereof, except and until your rights to the Shares have vested. Except for transfers by will or under laws of descent or distribution, interests in and rights to receive Shares may not be sold, assigned, pledged or otherwise transferred until rights to the Shares have vested and the Shares have been issued. 4. Your right to receive Shares will vest if and to the extent the Annual Performance Goals described below are achieved: (a) For purposes of this agreement, achievement of an "Annual Performance Goal" means that the Company's adjusted market capitalization per ounce (expressed in terms of dollars per ounce of proven and probable reserves) has achieved, on a "Measurement Date" set out in paragraph (c) below, the percentage of the arithmetic average of the adjusted market capitalizations for the Standard and Poor's Gold and Precious Metals Index companies set out under "Annual Performance Goal" in paragraph (c) below. (b) "Final Performance Date" means December 31, 2000. (c) On each "Measurement Date" set out below, if the Company achieves the Annual Performance Goal for that date, your right to receive Shares will vest as to: (i) 33 1/3 % of the Shares; and (ii) any Shares as to which your right could have but did not vest on any prior Measurement Date because the Annual Performance Goal for that Measurement Date was not achieved. If the Company fails to achieve the Annual Performance Goal for any Measurement Date, your right to receive Shares will not vest on that Measurement Date, but your right to receive those Shares will vest on any subsequent Measurement Date on which the Annual Performance Goal for that subsequent Measurement Date is achieved. The Measurement Dates and the Annual Performance Goals for each are as follows: Measurement Date Annual Performance Goal 12/31/98 82% 12/31/99 91% 12/31/00 100% (d) For purposes of this agreement, "Standard and Poor's Gold and Precious Metals Index Companies" means those companies whose shares are included in the Standard and Poor's Gold and Precious Metals Index from time to time, notwithstanding that there may be a change in those companies between the date of this agreement and the Final Performance Date. 5. This agreement will expire immediately after the close of business on the Final Performance Date and any rights in respect of Shares that have not vested on or before the Final Performance Date will be forfeited. Except as otherwise provided in connection with Termination of Employment, no rights in respect of Shares will be forfeited prior to the close of business on the Final Performance Date. 6. Except as hereafter provided, all rights to receive Shares under this agreement that have not already vested will expire and be forfeited to the Company if you cease to be an 2 "Employee" (as defined in the Plan) of Homestake or any Affiliate of Homestake prior to any Measurement Date ("Termination of Employment"). If any company or other entity which is your employer ceases to be an Affiliate of Homestake, then you will be deemed to have ceased being an Employee as of the time that company or other entity ceases to be an Affiliate. (a) If your Termination of Employment is because you (i) die, (ii) are Disabled (as defined in the Homestake Retirement Plan), (iii) retire from Homestake or any Affiliated Company on or after your Normal Retirement Date or on your Early Retirement Date (as defined in the Homestake Retirement Plan), or (iv) retire at a time when you are eligible to receive a "Retirement Benefit" under the Homestake Executive Supplemental Retirement Plan, you will continue to be treated as an Employee for a period of thirty- six months following the date of such death, disability or retirement or until the Final Performance Date, whichever is earlier. Rights in respect of Shares that do not vest during that period will be forfeited. (b) If your Termination of Employment takes place within two years following a "Change of Control" and is as a result of (i) termination by the Company other than for "Good and Sufficient Cause" or (ii) termination by you for "Good Reason," (all as defined in the Company's 1999 Change of Control Severance Plan as amended from time to time), then on such termination, your right to receive any Shares that remain unvested under this agreement will immediately vest in full, and you will be entitled to receive all such Shares as of the date of Termination of Employment. The provisions of this paragraph 6(b) are in addition to any rights that you may have under Article XIII of the Plan. (c) The Committee will have the authority, in its discretion, to extend the term of this agreement to include all or part of any period of time during which you continue as an Employee of any corporation, joint venture, partnership or other entity in which Homestake has, directly or indirectly, at least a 20% ownership or profits interest or during which you act as a consultant to Homestake, any of its Affiliates, or any corporation, joint venture, partnership or other entity in which Homestake has, directly or indirectly , at least a 20% ownership or profits interest. 7. You do does not own any Shares granted under this agreement until your right to receive such Shares have vested and such Shares have actually been issued. Until such Share issuance, you will not be entitled to exercise any voting rights or receive dividends in respect of such Shares. 8. Notwithstanding anything contained herein to the contrary, the Company's obligation to issue or deliver Shares pursuant to this agreement will be subject to all applicable laws, rules and regulations, including stock exchange rules. If any laws, rules or regulations require that the Company take any action before issuance and delivery of Shares, then the date of issuance and delivery will be delayed for the period necessary to take such action. 9. As a condition to the issuance and delivery of any Shares which vest under this agreement, the Company will have the right to require you to remit to the Company, or the Company will have the right to withhold from any amounts payable to you, as compensation or otherwise, amounts sufficient to satisfy all federal, state and local tax and other withholding requirements. 10. This agreement incorporates the Plan by reference. In the event of a conflict between the terms of this agreement and the Plan, the Plan, as interpreted and administered by the Committee, will prevail. Please indicate your agreement with the foregoing by signing one copy of this agreement and returning it to the Company in the enclosed envelope. Very truly yours Homestake Mining Company By _____________________ I agree to the foregoing _________________________________ 4 EX-10 10 EXHIBIT 10.49 Amended Form of Performance Based Share Agreement under the 1996 Plan - 1999 Grants. , 1999 Homestake Mining Company 650 California Street San Francisco, CA 94108 RE: GRANT OF RIGHT TO RECEIVE PERFORMANCE BASED SHARES Dear : Effective upon your entering into this agreement, Homestake Mining Company ("Homestake" or "Company") grants you the right to receive shares of its $1.00 value common stock ("Shares") on the following terms and conditions: 1. This grant is made under the Company's Stock Option and Share Rights Plan - 1996 (the "Plan"). Any capitalized terms used in this agreement that are not defined in this agreement have the meanings given to them in the Plan. 2. Effective upon your entering into this agreement, there also will be established for you in the records of the Company a Dividend Equivalency Account. As of each subsequent record date for dividends on the Company's Common Stock, there will be credited to your Dividend Equivalency Account an amount equal to the amount of dividends (a "Dividend Equivalent") that would have been payable in respect of each unvested Share subject to this agreement had such Share been outstanding on that record date. Such Dividend Equivalents will accumulate without interest. At the time your right to receive any Share under this agreement vests, you will also vest in and be entitled to receive the accumulated Dividend Equivalents that have accrued in your Dividend Equivalency Account in respect of such Share. Under no circumstances will you have any rights in or right to receive any Dividend Equivalent until you vest in the Share in respect of which the Dividend Equivalent was credited. If your right to receive any Shares under this agreement is forfeited, your right to receive related Dividend Equivalents will also be forfeited at the same time. Any subsequent reference in this agreement to Shares will be deemed to refer to the related Dividend Equivalents, and any subsequent reference in this agreement to the vesting in and/or issuance of Shares shall be deemed to refer to the vesting in and/or payment of the related Dividend Equivalents. 3. Your right to receive Shares under this agreement is subject to achieving the Annual Performance Goals set out below and is also subject to compliance with the terms and conditions of this agreement. Shares will not be issued, and you will have no rights of ownership in respect thereof, except and until your rights to the Shares have vested. Except for transfers by will or under laws of descent or distribution, interests in and rights to receive Shares may not be sold, assigned, pledged or otherwise transferred until rights to the Shares have vested and the Shares have been issued. 4. Your right to receive Shares will vest if and to the extent the Annual Performance Goals described below are achieved: (a) For purposes of this agreement, achievement of an "Annual Performance Goal" means that the closing price of the Company's Common Stock on the New York Stock Exchange (or other principal exchange selected by the board of directors on which the Common Stock is listed if not listed on the New York Stock Exchange) on the Measurement Dates set out below, in relation to the stock closing price on December 31, 1998, cumulatively outperforms the Adjusted Standard and Poor's Gold and Precious Metals Index ("Index") on the Measurement Dates set out below, in relation to the level thereof at December 31, 1998, by the amounts set out under "Annual Performance Goal" in paragraph (c) below. (b) "Final Performance Date" means December 31, 2002. (c) On each "Measurement Date" set out below, if the Company achieves the Annual Performance Goal for that date, your right to receive Shares will vest as to: (i) 25% of the Shares; and (ii) any Shares as to which your right could have but did not vest on any prior Measurement Date because the Annual Performance Goal for that Measurement Date was not achieved. If the Company fails to achieve the Annual Performance Goal for any Measurement Date, your right to receive Shares will not vest on that Measurement Date, but your right to receive those Shares will vest on any subsequent Measurement Date on which the Annual Performance Goal for that subsequent Measurement Date is achieved. The Measurement Dates and the Annual Performance Goals for each are as follows: Measurement Date- Annual Performance Goal- In Relation to HMC Common Stock to 12/31/98 Cumulatively Outperform the Index By 12/31/99 5% 12/31/00 10% 12/31/01 15% 12/31/02 20% (d) For purposes of this agreement, "Adjusted Standard and Poor's Gold and Precious Metals Index" means the Standard and Poor's Gold and Precious Metals Index from time to time, notwithstanding that there may be a change in those companies between the date of this agreement and the Final Performance Date, but excluding therefrom the stock of the Company. 5. This agreement will expire immediately after the close of business on the Final Performance Date and any rights in respect of Shares that have not vested on or before the Final Performance Date will be forfeited. Except as otherwise provided in connection with 2 Termination of Employment, no rights in respect of Shares will be forfeited prior to the close of business on the Final Performance Date. 6. Except as hereafter provided, all rights to receive Shares under this agreement that have not already vested will expire and be forfeited to the Company if you cease to be an "Employee" (as defined in the Plan) of Homestake or any Affiliate of Homestake prior to any Measurement Date ("Termination of Employment"). If any company or other entity which is your employer ceases to be an Affiliate of Homestake, then you will be deemed to have ceased being an Employee as of the time that company or other entity ceases to be an Affiliate. (a) If your Termination of Employment is because you (i) die, (ii) are Disabled (as defined in the Homestake Retirement Plan), (iii) retire from Homestake or any Affiliated Company on or after your Normal Retirement Date or on your Early Retirement Date (as defined in the Homestake Retirement Plan) other than a Termination of Employment pursuant to clause (b) below, or (iv) retire at a time when you are eligible to receive a "Retirement Benefit" under the Homestake Executive Supplemental Retirement Plan other than a Termination of Employment pursuant to clause (b) below, you will continue to be treated as an Employee for a period of thirty-six months following the date of such death, disability or retirement or until the Final Performance Date, whichever is earlier. Rights in respect of Shares that do not vest during that period will be forfeited. (b) If your Termination of Employment takes place within two years following a "Change of Control" and is as a result of (i) termination by the Company other than for "Good and Sufficient Cause" or (ii) termination by you for "Good Reason," (all as defined in the Company's 1999 Change of Control Severance Plan as amended from time to time), then on such termination, your right to receive any Shares that remain unvested under this agreement will immediately vest in full, and you will be entitled to receive all such Shares as of the date of Termination of Employment. The provisions of this paragraph 6(b) are in addition to any rights that you may have under Article XIII of the Plan. (c) The Committee will have the authority, in its discretion, to extend the term of this agreement to include all or part of any period of time during which you continue as an Employee of any corporation, joint venture, partnership or other entity in which Homestake has, directly or indirectly, at least a 20% ownership or profits interest or during which you act as a consultant to Homestake, any of its Affiliates, or any corporation, joint venture, partnership or other entity in which Homestake has, directly or indirectly, at least a 20% ownership or profits interest." 7. You do does not own any Shares granted under this agreement until your right to receive such Shares have vested and such Shares have actually been issued. Until such Share issuance, you will not be entitled to exercise any voting rights or receive dividends in respect of such Shares. 8. Notwithstanding anything contained herein to the contrary, the Company's obligation to issue or deliver Shares pursuant to this agreement will be subject to all applicable laws, rules and regulations, including stock exchange rules. If any laws, rules or regulations 3 require that the Company take any action before issuance and delivery of Shares, then the date of issuance and delivery will be delayed for the period necessary to take such action. 9. As a condition to the issuance and delivery of any Shares which vest under this agreement, the Company will have the right to require you to remit to the Company, or the Company will have the right to withhold from any amounts payable to you, as compensation or otherwise, amounts sufficient to satisfy all federal, state, provincial and local tax and other withholding requirements. If withholding is required, you will have the opportunity to satisfy the withholding requirement by (i) paying the withholding amounts in cash to the Company, (ii) having the required amount withheld from other monies then due to you, or (iii) having the Company retain a portion of the Shares otherwise then issuable to you in an amount equal in value to the required withholding amounts, with the Company paying the required withholding amounts. If you select the third alternative, you must notify the Company at least seven days before the date the Shares may become issuable to you. 10. This agreement incorporates the Plan by reference. In the event of a conflict between the terms of this agreement and the Plan, the Plan, as interpreted and administered by the Committee, will prevail. Please indicate your agreement with the foregoing by signing one copy of this agreement and returning it to the Company in the enclosed envelope. Very truly yours Homestake Mining Company By _____________________________ I agree to the foregoing _________________________________ 4 EX-10 11 EXHIBIT 10.50 Amended Form of Bonus Stock Program Agreement under the 1996 Plan. HOMESTAKE MINING COMPANY BONUS STOCK PROGRAM ELECTION FORM I have read the Bonus Stock Program Memorandum Dated as of __________ (which is deemed incorporated herein by this reference), and I understand the Bonus Stock Program. I have also had the opportunity to ask all questions I may have with regard to the program, and I have received satisfactory answers to all of my questions. I understand that, in electing to participate in the Bonus Stock Program, there is no assurance that cash bonuses will in fact be paid for _____, and therefore there is no assurance that I will in fact receive a contingent right to receive shares. I understand that the number of shares subject to any contingent share right will have a value (on the date bonuses are approved) equal to 150% of the cash foregone, that the number of shares subject to the contingent share right will be determined on that date, and that the number of shares subject to the contingent share right will not change, regardless of subsequent changes in market value of the shares. I also understand that once I forego any cash, that cash will not be paid to me even if I forfeit all rights to receive the shares subject to the contingent share right. I understand that my right to receive the shares will vest over three years from the date the cash bonus being foregone is approved by the Board of Directors - 50% after one year, 25% after two years and 25% after three years. I also understand that, with certain exceptions described in the Memorandum, I must continue to be an employee of Homestake or its affiliated companies on the vesting dates; otherwise I will forfeit all rights to the unvested shares and related dividend equivalency amounts. Finally, I understand that this election is irrevocable. I hereby elect to forego _____%, subject to a maximum amount of $_______________, of the cash bonus I may be entitled to receive for the year _____. I elect to receive a contingent right to receive Homestake Mining Company Common Stock in lieu thereof. The terms of that contingent right are described in the Memorandum and in the accompanying Terms and Conditions, which are deemed incorporated in this election form. This election will be effective upon its acceptance by Homestake Mining Company. _________________________________ Name _________________________________ Signature _________________________________ Date ACCEPTED: Homestake Mining Company By ____________________ TERMS AND CONDITIONS TO HOMESTAKE MINING COMPANY BONUS STOCK PROGRAM ELECTION FORM 1. These Terms and Conditions are a part of the contract created by the Bonus Stock Program Election Form ("Election Form") when it has been executed by you and accepted by Homestake Mining Company ("Homestake" or the "Company"). 2. The grant of a contingent right to receive Homestake Mining Company Common Stock, $1.00 par value ("Homestake Shares") pursuant to the Bonus Stock Program is made under the pursuant to the Company's Stock Option and Share Rights Plan - 1996 (the "Plan"). Any capitalized terms used herein that are not defined herein have the meanings given to them in the Plan. 3. Effective upon (i) your proper completion, execution and delivery of the Election Form and (ii) its acceptance by Homestake, you will have made the election specified in the Election Form to forego up to 50% of your potential cash bonus for ______ in exchange for the award of a contingent right to receive Homestake Shares in the future (the "Contingent Right"). You are not assured that there will be a cash bonus for ______ payable to you, and the making of the election specified in the Election Form does not assure that any cash bonus for ______ will be payable in fact; you will not receive the Contingent Right unless the cash bonus foregone by you is approved by the Board of Directors, as provided below. Further, ONCE THE ELECTION IS MADE, THE ELECTION IS IRREVOCABLE, AND YOU WILL FOREVER GIVE UP ALL RIGHTS TO RECEIVE ANY FOREGONE CASH BONUS FOR ______ THAT OTHERWISE WOULD HAVE BEEN PAYABLE, EVEN IF YOU FORFEIT ALL OR ANY PART OF YOUR CONTINGENT RIGHT. THE ELECTION MAY NOT BE MADE AS TO ANY PART OF THE CASH BONUS THAT HAS BEEN DEFERRED UNDER THE COMPANY'S DEFERRED COMPENSATION PLAN. 4. The number of Homestake Shares subject to your Contingent Right will be that number of Homestake Shares which have a fair market value, on the day your cash bonus for ______ is approved by the Homestake Board of Directors ("Approval Date"), equal to 150% of the amount of cash bonus for ______ that is foregone by you. For this purpose, "fair market value" will be the Closing Price of Homestake Shares on the New York Stock Exchange on the Approval Date (or the next preceding trading day if Homestake Shares do not trade on the Approval Date). If Homestake Shares are not listed or otherwise trading on the New York Stock Exchange at or about the Approval Date, the fair market value will be determined by the Committee in its sole discretion. Once the number of Homestake Shares subject to your Contingent Right is determined, that number of Homestake Shares is fixed and will not vary because of subsequent changes in the market value of Homestake Shares. As a result, you take 2 the market risk of an increase or decrease in the value of the Homestake Shares subject to your Contingent Right. 5. There also will be established for you in the records of the Company a Dividend Equivalency Account. As of each subsequent record date for dividends on Homestake Shares, there will be credited to your Dividend Equivalency Account an amount equal to the amount of dividends (a "Dividend Equivalent") that would have been payable in respect of each unvested Share subject to your Contingent Right had such Share been outstanding on that record date. Dividend Equivalents will accumulate without interest. At the time your right to receive any Share subject to your Contingent Right vests, you will also vest in and be entitled to receive the accumulated Dividend Equivalents that have accrued in your Dividend Equivalency Account in respect of such Share. Under no circumstances will you have any rights in or right to receive any Dividend Equivalent until you vest in the Share in respect of which the Dividend Equivalent is credited. If your right to receive any Shares subject to your Contingent Right is forfeited, your right to receive related Dividend Equivalents will also be forfeited at the same time. Any subsequent reference in these Terms and Conditions to Shares will be deemed to refer to the related Dividend Equivalents, and any subsequent reference in these Terms and Conditions to the vesting in and/or issuance of Shares also will be deemed to refer to the vesting in and/or payment of the related Dividend Equivalents. 6. Your right to receive Homestake Shares subject to your Contingent Right will vest over three years. Your right to receive 50% of the Homestake Shares subject to your Contingent Right will vest on the first anniversary of the Approval Date. Your right to receive an additional 25% will vest on each of the second and third anniversaries of the Approval Date. THE RIGHT TO RECEIVE SHARES IS ALSO CONTINGENT ON YOUR CONTINUING TO BE AN EMPLOYEE OF HOMESTAKE (OR AN AFFILIATED COMPANY) ON THE VESTING DATE AS SET OUT BELOW. Shares will not be issued, and you will have no rights of ownership in respect thereof, except and until your rights to the Homestake Shares have vested. Except for transfers by will or under laws of descent or distribution, interests in and rights to receive Homestake Shares under your Contingent Right may not be sold, assigned, pledged or otherwise transferred until rights to the Homestake Shares have vested and the Homestake Shares have been issued. 7. (a) Except as hereafter provided, all rights to receive Homestake Shares under your Contingent Right that have not already vested immediately will expire and be forfeited if you cease to be an "Employee" (as defined in the Plan) of Homestake or any Affiliate of Homestake prior to an anniversary of the Approval Date ("Termination of Employment"). If any company or other entity which is your employer ceases to be an Affiliate of Homestake, then you will be deemed to have ceased being an Employee as of the time that company or other entity ceases to be an Affiliate. (b) If your Termination of Employment is because you (i) die, (ii) are Disabled (as defined in the Homestake Retirement Plan), (iii) retire from Homestake or any Affiliated Company on or after your Normal Retirement Date or on your Early Retirement Date (as defined in the Homestake Retirement Plan), or (iv) retire at a time when you are eligible to receive a "Retirement Benefit" under the Homestake Executive Supplemental Retirement Plan, your right 3 to receive all unvested Homestake Shares subject to your Contingent Right will immediately vest, and you will be entitled to receive all Homestake Shares subject to the Contingent Right as of the date of Termination of Employment. (c) If there is a "Corporate Transaction" or a "Change of Control" of Homestake, as defined in the Plan, then under certain circumstances outlined in the Plan, there may be an acceleration of vesting of your right to receive Homestake Shares subject to your Contingent Right. If that occurs, then you may vest in and be entitled to receive Homestake Shares subject to your Contingent Right, or cash in lieu thereof under certain circumstances. (d) If your Termination of Employment takes place within two years following a "Change of Control" and is as a result of (i) termination by Homestake other than for "Good and Sufficient Cause" or (ii) termination by you for "Good Reason," (all as defined in Homestake's 1999 Change of Control Severance Plan), then on such termination, your right to receive any unvested Homestake Shares subject to your Contingent Right will immediately vest, and you will be entitled to receive all Homestake Shares subject to your Contingent Right as of the date of Termination of Employment." (e) The Committee will have the authority, in its discretion, to extend the term of your Contingent Right to include all or part of any period of time during which you continue as an Employee of any corporation, joint venture, partnership or other entity in which Homestake has, directly or indirectly, at least a 20% ownership or profits interest or during which you act as a consultant to Homestake, any of its Affiliates, or any corporation, joint venture, partnership or other entity in which Homestake has, directly or indirectly, at least a 20% ownership or profits interest. 8. You do not own any Homestake Shares subject to your Contingent Right until your right to receive such Homestake Shares has vested and such Homestake Shares have actually been issued. Until issuance of the Homestake Shares, you will not be entitled to exercise any voting rights or receive dividends in respect thereof. 9. Notwithstanding anything contained herein to the contrary, Homestake's obligation to issue or deliver Homestake Shares hereunder will be subject to all applicable laws, rules and regulations, including stock exchange rules. If any laws, rules or regulations require that Homestake take any action before issuance and delivery of Homestake Shares subject to your Contingent Right, then the date of issuance and delivery will be delayed for the period necessary to take such action. 10. As a condition to the issuance and delivery of any Homestake Shares subject to your Contingent Right, Homestake will have the right to require you to remit to Homestake, or Homestake will have the right to withhold from any amounts payable to you, as compensation or otherwise, amounts sufficient to satisfy all federal, state, provincial and local tax and other withholding requirements. Alternatively, if you give written notice to Homestake at least seven days in advance of any anniversary of 4 the Approval Date, Homestake will retain a portion of the Homestake Shares and Dividend Equivalents otherwise payable to you on that anniversary of Approval Date, in an amount equal in value to the required withholding amounts, which it will use to satisfy such withholding requirements; provided, however, that if Homestake withholds an incorrect amount, that will not relieve you from paying the correct amount, if Homestake underwithholds, nor will it relieve Homestake from reimbursing you, if Homestake overwithholds. 11. These Terms and Conditions incorporate the Plan by reference. In the event of a conflict between these Terms and Conditions and the Plan, the Plan, as interpreted and administered by the Committee, will prevail. 5 EX-10 12 EXHIBIT 10.51 [HOMESTAKE LOGO HERE] Interoffice Correspondence Amended Form of Matching Stock Agreement under the 1996 Plan. TO: FROM: DATE: SUBJECT: Matching Stock Award Program In 1997, Homestake Mining Company established a Matching Stock Award Program to assist key employees in achieving the stock ownership guidelines set by the Board. The Program was established under the Homestake Mining Company Stock Option and Share Rights Plan - 1996 (the "Plan"). Under the Program, you have the right to receive one share of matching stock for each three shares enrolled in the program. You will be permitted to enroll shares in the Program once each calendar year. The right to receive the matching shares will vest on the fifth anniversary of enrollment of the shares to be matched. Once you enroll shares, you must hold the enrolled stock continuously throughout the five year period. If you sell or otherwise transfer the enrolled stock during the five-year holding period, you will completely forfeit the right to receive the corresponding matching stock. Each annual enrollment will be treated as a single enrollment and will not impact any other enrollment, holding period or forfeiture. Once shares have been matched, those shares may not be enrolled in the program a second time. You may enroll shares held of record or held beneficially, including shares held in a 401(k) account or in an IRA, or held in trust for you. You may enroll shares separately owned by you or held jointly or as community property with your spouse. Shares held separately by or for the benefit of your spouse and shares held by or for the benefit of your children are not eligible for enrollment under the Program. If you hold shares jointly with a person other than your spouse, or if you share beneficial ownership of shares with a person other than your spouse, only the portion of stock attributable to you may be enrolled in the Program. At the time shares are enrolled, you must provide the Company with a statement certifying the number of shares that you wish to enroll in the Program. Appropriate documentation of ownership, such as a copy of a current 401(k) statement, an IRA, trust or brokerage statement, or stock certificate must accompany the certification. By electing to enroll in the Program, you are indicating your intent to hold the shares for at least five years. Each year you will be required to provide documentation that you still hold the shares. If you do not continue to retain the enrolled shares, your right to receive the matching shares will be forfeited. Except as hereafter provided, all rights to receive matching shares that have not already vested will expire and be forfeited if you cease to be an "Employee" (as defined in the Plan) of Homestake or any Affiliate of Homestake prior to fifth anniversary of the date on which you enrolled the shares to be matched. If any company or other entity which is your employer ceases to be an Affiliate of Homestake, then you will be deemed to have ceased being an Employee as of the time that company or other entity ceases to be an Affiliate. If you have a termination of employment for any of the following reasons, then on such termination, your right to receive any matching shares that have not vested will vest in the same proportion as equals the proportion of (i) number of months (or part thereof) from the date of enrollment of the shares to be matched to (ii) the fifth anniversary of enrollment. This paragraph applies if (1) you die, (2) you are Disabled (as defined in the Homestake Retirement Plan), (3) you retire from Homestake or any Affiliated Company on or after your Normal Retirement Date or on your Early Retirement Date (as defined in the Homestake Retirement Plan), or (4) you retire at a time when you are eligible to receive a "Retirement Benefit" under the Homestake Executive Supplemental Retirement Plan. If you have a termination of employment that takes place within two years following a "Change of Control" and is as a result of (i) termination by the Company other than for "Good and Sufficient Cause" or (ii) termination by you for "Good Reason," (all as defined in the Company's 1999 Change of Control Severance Plan as amended from time to time), then on such termination, your right to receive any matching shares that have not vested in full will immediately vest in full, and you will be entitled to receive all such matching shares as of the date of Termination of Employment. The provisions of this paragraph are in addition to any rights that you may have under Article XIII of the Plan. You do not own any matching shares until your right to receive the shares has vested and the shares have actually been issued. Until the matching shares are issued, you will not be entitled to exercise any voting rights or receive dividends in respect of such shares. Notwithstanding anything contained herein to the contrary, the Company's obligation to issue or deliver matching shares will be subject to all applicable laws, rules and regulations, including stock exchange rules. If any laws, rules or regulations require that the Company take any action before issuance and delivery of shares, then the date of issuance and delivery will be delayed for the period necessary to take such action. The Company may be required to withhold income and other taxes payable in respect of matching shares. If withholding is required, you will have the opportunity to satisfy the withholding requirement by (i) paying the withholding amounts in cash to the Company, (ii) having the required amount withheld from other monies then due to you, or (iii) having the Company retain a portion of the matching shares otherwise then payable to you in an amount equal in value to the required withholding amounts, with the Company paying the required withholding amounts. If you select the third alternative, you must notify the Company at least seven days before the date the matching shares become payable to you. In ___ and ______, you enrolled ___________ and _________ shares of Homestake Common Stock in this Program. Please provide documentation that you still hold enrolled stock. If you wish to enroll additional stock in this program, please complete the attached certification form, attach the appropriate documentation and return to me by _________. -----END PRIVACY-ENHANCED MESSAGE-----