Exhibit 10(x)
CONSULTING AGREEMENT
Agreement No. NCL-02-284-CFA
This Consulting Agreement (this "Agreement") is entered into effective as of
April 1, 2002 by and between Newmont Capital Limited, a Nevada corporation, with
offices at 0000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000 ("Newmont"), and Xxxxxxx
Xxxxxxxx, an individual, with a business address of 20 Eglinton Avenue West,
Suite 1900, Box 2005, Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0 ("Contractor").
Recitals
A. Contractor currently serves on the Board of Directors of Newmont, in the
position of Chairman of the Board ("Chairman"). In consideration of such
service, Newmont will pay Contractor US$25,000.00 per year, paid quarterly, for
each year that he serves as Chairman.
B. Contractor also currently serves on the Board of Directors of Newmont's
parent company, Newmont Mining Corporation, a Delaware corporation ("NMC"). In
accordance with NMC's director compensation policy, NMC pays Contractor
US$25,000.00 per year for each year that he serves as a director of NMC. Because
of Contractor's status as Chairman of Newmont, Contractor is deemed to be
ineligible to participate in NMC's 2000 Non-Employee Directors Stock Plan (i.e.,
Contractor is not entitled to receive the annual restricted stock award received
by other non-employee directors of NMC or to receive stock options under such
Plan).
C. In addition to the services provided to Newmont by Contractor in his position
as Chairman, Contractor possesses certain other business and financial skills
and experience which may be beneficial to Newmont and, in relation thereto,
Newmont desires to engage Contractor to provide certain consulting services to
Newmont.
D. In light of Newmont's affiliation with NMC, and in order to clearly
distinguish between Contractor's duties and compensation in relation to his
positions as Chairman of Newmont and director of NMC and his duties and
compensation in relation to the consulting services which he will provide for
Newmont, Contractor and Newmont desire to enter into this Agreement.
Agreement
In consideration of the mutual promises and conditions contained in this
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. TERM
This Agreement shall be effective from April 1, 2002 to March 31, 2005 (the
"Term"), unless terminated earlier under Section 8, below. The Term may only be
extended by a written agreement between the parties.
2. STATEMENT OF SERVICES
A. During the Term, Contractor shall provide general merchant banking advice and
guidance to Newmont and, upon Newmont's request, to certain of Newmont's
affiliates, including but not limited to structuring acquisitions and sales of
properties and equity positions and the development and maintenance of a healthy
treasury (the "Services"). Contractor shall be available to perform the
Services, on an as-requested basis, for approximately 50% of his working time.
B. In performance of the Services, Contractor shall exercise that degree of
care, skill, and judgment
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that is standard in the industry for professionals engaged in the performance of
services of this nature.
C. Contractor shall comply with all applicable laws, statutes, regulations,
decrees, codes, ordinances, resolutions, and other acts of any applicable
governmental authority, including without limitation those pertaining to health,
safety, and the environment, the U.S. Foreign Corrupt Practices Act (which
prohibits the direct or indirect delivery of anything of value to government
officials to secure an improper advantage), and other laws that are applicable
to this Agreement or Contractor's performance of the Services. Contractor shall,
at all times, have applicable visas, work permits, and other documentation
necessary for performance of the Services, and shall comply with all immigration
requirements applicable to Contractor.
3. COMPENSATION FOR SERVICES
A. As compensation for performance of the Services hereunder, Newmont shall pay
Contractor Cdn$1,200,000.00 over the Term, payable in arrears in equal monthly
installments of Cdn$33,333.33. In addition, Newmont may, in its sole discretion,
pay Contractor an annual incentive payment if he generates exceptional profits
through performance of the Services. Nothing in this Agreement shall affect or
limit the payment to Contractor of compensation by Newmont for Contractor's
service as Chairman of Newmont or by NMC for Contractor's service as a director
of NMC.
B. Newmont also shall provide to Contractor, at Newmont's expense: (i) office
space located at 00 Xxxxxxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx, Xxxxxx
through the end of the current lease for such space, and the same or alternative
office space, under terms reasonably acceptable to both parties, for any portion
of the Term after which such lease has expired, and (ii) the services of Xxx
Xxxxx as assistant/office manager and, in the event of Xx. Xxxxx'x resignation
or the termination of Xx. Xxxxx'x employment by Newmont for good cause, the
services of a replacement assistant/office manager under terms reasonably
acceptable to both parties.
C. Newmont also shall reimburse Contractor for the actual amount of reasonable
and necessary expenses incurred in the performance of the Services including,
without limitation, Cdn$12,400.00 per year in annual dues for Contractor's
membership in the entrepreneur category of the Canadian Counsel of Chief
Executives. Contractor shall submit an invoice of expenses for payment on a
monthly basis. Such invoice shall contain a reasonable itemization of the
expenses incurred. Copies of receipts, statements, and any other documents that
verify the accuracy of such invoice shall also be included. Newmont shall pay
the invoice within 30 days from the date the invoice is received by Newmont,
excepting any disputed amounts which may be withheld pending resolution of the
dispute.
D. Contractor hereby expressly acknowledges and agrees that the award of this
Agreement to him is in lieu of and replaces the severance compensation, in the
amount of US$750,000.00 ("Severance Compensation"), that would otherwise have
been due to Contractor from Newmont's affiliate, Franco-Nevada Mining
Corporation Limited ("Franco-Nevada"). Contractor hereby forever (1) waives any
and all rights and claims in and for payment of the Severance Compensation by
Newmont, Franco-Nevada, or any other Newmont affiliate; (2) discharges and
releases Newmont, Franco-Nevada, their affiliates, and their respective
officers, directors, employees, and agents (each, a "Releasee") from any and all
liabilities, claims, demands, causes of action, debts, accounts, damages, costs,
losses, and expenses, of any nature whatsoever, that Contractor may have, now or
in the future, relating to the Severance Compensation, and (3) covenants that
Contractor shall not at any time in the future, directly or indirectly, commence
or prosecute any action, suit, or other proceeding against any Releasee relating
to the Severance Compensation.
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4. OWNERSHIP AND SUBMISSION OF INFORMATION AND RECORDS
A. All records, reports, data, and other information, and all copies thereof and
notes related thereto, prepared, generated, researched, developed, compiled, or
obtained from any source whatsoever by or through Contractor in connection with
performance of the Services (the "Data") shall be promptly disclosed to Newmont,
and without further consideration shall become, to the extent legally possible,
the property of Newmont. Upon Newmont's request, Contractor shall promptly
execute and deliver to Newmont any document necessary to transfer legal title in
such property to Newmont.
B. Within 15 days after expiration or termination of this Agreement, Contractor
shall submit all Data to Newmont without retaining any copies thereof, unless
written approval to retain copies has been given by Newmont to Contractor.
5. NONDISCLOSURE/NON-USE
Contractor shall not disclose to third parties or use for purposes other than
performing the Services, any Data or any other information that relates to the
technical, legal, or business affairs or activities of Newmont or its affiliates
which was obtained by or on behalf of Contractor in connection with the
performance of the Services (collectively, "Confidential Information"), without
the prior written consent of Newmont, unless said information:
(a) is, or shall have been, in the possession of Contractor and not subject
to a confidentiality obligation prior to Contractor's acquisition thereof in
connection with the performance of the Services;
(b) through no act or omission of Contractor, becomes published or
otherwise available to the public under circumstances such that the public may
utilize the same without any direct or indirect confidentiality obligation to
Newmont or its affiliates; or
(c) is acquired by Contractor from any third party rightfully in possession
of the same and having no direct or indirect confidentiality obligation to
Newmont or its affiliates with respect to the same.
Contractor acknowledges that the Confidential Information is an important asset
of Newmont and/or its affiliates and that there is not an adequate remedy at law
for a breach by Contractor of this Section and Newmont and/or its affiliates
will suffer irreparable harm as a result of such a breach. Therefore, Contractor
agrees that Newmont and/or its affiliates shall be entitled to equitable relief,
including temporary and permanent injunctive relief without the obligation of
posting a bond (cash or otherwise), in the event of actual or threatened
unauthorized disclosure or use of Confidential Information in breach of this
Section.
This Section shall survive the expiration or termination of this Agreement.
6. STATUS OF CONTRACTOR; TAXES
A. Contractor shall perform the Services as an independent contractor in
accordance with Contractor's own methods, the terms of this Agreement, and
applicable laws and regulations. It is a condition of this Agreement that
Contractor will not have any employee, agent, worker, servant, subcontractor, or
representative in connection with provision of the Services. Contractor shall
not be deemed, for any purpose, to be an employee of Newmont as a result of or
in connection with his performance of the Services; however, Contractor shall
have such authority to act as agent and representative of Newmont and NMC as may
be delegated to him from time to time by the Managing Director of Newmont, with
respect to Newmont, or by the President or Chief Executive Officer of NMC, with
respect to NMC. Contractor shall not be eligible for any retirement plan,
insurance program, or any other employee or social benefits provided to
employees of Newmont ("Employee Benefits") other than those provided to him in
respect of his service as a director of NMC. Contractor acknowledges and agrees
that (1) Contractor shall not be eligible for any such Employee Benefits even if
Contractor is
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reclassified by a court or government agency as a common law employee of Newmont
or a Newmont affiliate, (2) the compensation payable to Contractor pursuant to
this Agreement has been negotiated between Newmont and Contractor on the
understanding and agreement that Contractor will not be eligible to participate
in or receive any Employee Benefits, and (3) if Contractor should receive any
Employee Benefits, Contractor shall hold all such amounts in trust for and on
behalf of Newmont and shall reimburse Newmont as restitution for the value of
any such Employee Benefits that Contractor may receive. CONTRACTOR SHALL NOT BE
ENTITLED TO ANY BENEFITS ON ACCOUNT OF OCCUPATIONAL ACCIDENTS NOR TO ANY OTHER
WORKERS' COMPENSATION, LABOR RIGHTS BENEFITS, OR SIMILAR BENEFITS PROVIDED BY
NEWMONT TO ITS EMPLOYEES. It is not the intent of the parties to create, nor
shall this Agreement be construed as creating, a partnership, joint venture,
employment relationship, agency relationship, or association, or to render the
parties liable as partners, co-venturers, or principals.
B. CONTRACTOR SHALL BE RESPONSIBLE FOR ALL INCOME AND OTHER TAXES LEVIED UPON
THE REMUNERATIONS EARNED HEREUNDER. For purposes of the foregoing sentence,
Contractor hereby accepts any and all withholdings that Newmont may be obliged
to make, pursuant to applicable laws, from payments to Contractor as
compensation for the Services. Contractor represents that Contractor is fully
aware of the applicable tax regulations currently in force and undertakes to
comply with the same, and accepts that if during the Term such tax regulations
are amended, complemented, or substituted, Contractor shall comply with the new
provisions so enacted.
7. INDEMNITY
Contractor shall indemnify, defend, and hold harmless Newmont, its affiliates,
and their respective directors, officers, employees, representatives, and
agents, against and from any and all losses, claims, orders, prosecutions,
charges, debts, actions, suits (including costs and reasonable lawyer's fees and
disbursements), and damages to the extent the same arise out of or are in any
way connected with or materially contributed to by Contractor's breach of this
Agreement or Contractor's negligence or willful misconduct. Neither Newmont nor
Contractor shall be liable to the other for any loss of or damage to property
resulting from or occurring in the course of the Services to the extent that
reimbursement shall be made for any such loss or damage through or by reason of
insurance provided for that purpose. This Section 7.B. shall survive the
expiration or termination of this Agreement.
8. TERMINATION
Newmont may terminate this Agreement by giving written notice of termination to
Contractor. Upon receipt of such notice, Contractor shall stop all work on the
date specified in the notice. Newmont shall pay Contractor for Services
performed and expenses incurred to the date of such termination, subject to
Section 3, and for all compensation which would have been due through the end of
the Term, pursuant to Section 3.A., above, had Newmont not so terminated this
Agreement. Newmont shall not be liable to pay any bonus, damage, or other claim
asserted by Contractor for Contractor's expected profit on the incomplete
portion of the Services.
9. NO ASSIGNMENT
This Agreement is a contract for Contractor's unique services and, therefore,
Contractor may not assign or subcontract this Agreement to any third party
without the prior written consent of Newmont.
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10. ENTIRE AGREEMENT; SEVERABILITY
This Agreement constitutes the complete and entire agreement and understanding
between the parties with respect to the subject matter hereof and supersedes,
merges, and voids all negotiations, prior discussions, and prior agreements and
understandings, whether written or oral, relating to the subject matter hereof.
This Agreement may not be altered or amended except by a written document
executed by each party. Should any clause or provision of this Agreement be held
or deemed unenforceable or illegal by any court or other final authority, the
remaining clauses and provisions of this Agreement shall survive and be fully
enforceable as if the unenforceable or illegal provision was never included
herein.
11. FORCE MAJEURE
Neither Newmont nor Contractor shall be considered in breach of its obligations
hereunder to the extent that performance or the need for performance is delayed
or prevented by any circumstance beyond such party's reasonable control,
including but not limited to an act of God or a public enemy, fire, flood,
area-wide strike, freight embargo, or unusually severe weather; provided that
the party claiming force majeure shall, within 10 days from the beginning of
such event, notify the other party in writing of the fact of the event and its
probable effect on performance. A force majeure event shall not be a basis for a
claim for additional compensation, and each party shall bear its own costs and
expenses associated with or caused by such an event. The party claiming force
majeure shall take reasonable measures to mitigate the potential impact of the
force majeure event on performance of obligations created by this Agreement.
12. SURVIVAL
In addition to those provisions which expressly state that they shall survive
the expiration or termination of this Agreement, any other provision which, by
its general terms, may be reasonably interpreted as being intended to survive,
shall also survive the expiration or termination of this Agreement.
13. NOTICE
All notices and other required communications under this Agreement ("Notices")
shall be in writing, and shall be sent to a party at the address set forth below
such party's signature block below. A party may change its address by sending
Notice to the other party of the new address. Notices shall be given: (a) by
personal delivery to the other party; (b) by facsimile, with a confirmation sent
by registered or certified mail, return receipt requested; (c) by registered or
certified mail, return receipt requested; or (d) by express courier (e.g. DHL,
Federal Express, etc.). Notices shall be effective and shall be deemed
delivered: (i) if by personal delivery, on the date of the personal delivery;
(ii) if by facsimile, on the date stated in the electronic confirmation,
delivered during normal business hours (8:00 a.m. to 5:00 p.m. at recipient's
location), and, if not delivered during normal business hours, on the next
business day following delivery; (iii) if solely by mail, on the date of receipt
as stated on the return receipt; or (iv) if by express courier, on the date
signed for or rejected as reflected in the courier's delivery log.
14. GOVERNING LAW; ARBITRATION
This Agreement shall be governed by and interpreted in accordance with the laws
of the Province of Ontario and the federal laws of Canada applicable therein.
Any controversy or claim arising out of or relating to this Agreement shall be
determined solely by binding arbitration conducted in accordance with the
International Commercial Arbitration Act of Ontario (the "Ontario Act"). The
arbitration shall be conducted by a single arbitrator mutually acceptable to the
parties (the "Arbitrator"), who shall be designated by the parties within 30
days of the delivery of the first written notice required to be given pursuant
to the Ontario Act. If the parties fail to so designate the Arbitrator within
such time period, the Arbitrator shall be selected in accordance with the
Ontario Act governing such situation. The place of arbitration shall be Xxxxxxx,
Xxxxxxx, Xxxxxx. The arbitration shall be conducted
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in the English language and all documents shall be submitted in English. The
parties hereby submit to the jurisdiction of the courts in the Province of
Ontario, Canada, solely for the purpose of enforcing the decision of the
Arbitrator.
15. LANGUAGE OF DOCUMENTATION
The parties hereto have required that this Agreement, all Confirmations, and all
documents or notices related thereto or resulting therefrom be drawn in the
English language only. Les parties aux presentes ont exiges que la presente
convention ainsi que toutes les Confirmations et tous les documents et avis qui
s'y rattachent et xxx on decoulent soient rediges en langue anglaise seulement.
This Agreement is executed as of this __ day of December, 2002, intended to be
effective however as of the day and year first above written.
NEWMONT CAPITAL LIMITED
By: /s/ Xxxxx X. Xxxxx /s/ Xxxxxxx Xxxxxxxx
------------------------------- ----------------------------------
Name: Xxxxx X. Xxxxx Xxxxxxx Xxxxxxxx
-----------------------------
Title: Vice President
---------------------------- Tax I.D. No.:
---------------------
Address for Notice Purposes: Address for Notice Purposes:
Newmont Capital Limited
00 Xxxxxxxx Xxxxxx Xxxx
Xxxxx 0000, Box 2005
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Attn: Legal Department
Fax Number: (000) 000-0000
With a copy of Notice to:
Newmont Capital Limited
0000 Xxxxxxx Xxxxxx - 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Legal Department
Fax Number: (000) 000-0000
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