Exhibit 10(y)
CONSULTING AGREEMENT
Agreement No. NISL-02-240-CA
This Consulting Agreement (this "Agreement") is entered into and effective as of
the 16th day of May, 2002 (the "Effective Date") by and between Newmont
International Services Limited, a Delaware corporation, with offices at 0000
Xxxxxxx Xxxxxx - Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000 ("Newmont"), and Xxxxxx X.
Xxxxxx, an individual with a residential address of 00 Xxxxxxx Xx., X.X. Xxx
0000, Xxxxx Xxxx Xxxxx, Xxxxxxx 00000 ("Contractor").
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 May 16, 2002 to December 31, 2002 (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 the following services to Newmont
and, upon Newmont's request, to certain of Newmont's affiliates: provide general
mining industry advice and guidance and act as liaison with and hold positions
on the boards of various mining industry associations ("Associations"),
including but not limited to maintaining his position as Chairperson of the
National Mining Association (the "Services").
B. In performance of the Services, Contractor shall exercise that degree of
care, skill, and judgment that is standard in the United States industry for
professional Contractors engaged in the performance of services of this nature.
C. Contractor shall comply with all applicable laws, regulations, decrees,
codes, ordinances, resolutions, and other acts of any applicable governmental
authority, including without limitation federal, state, county, and local labor
laws (such as the Fair Labor Standards Act of 1938, as amended), tax laws, laws
addressing the preservation of 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.
D. This Agreement does not preclude Contractor from undertaking work of this
general nature for others.
3. COMPENSATION FOR SERVICES
A. Newmont shall pay Contractor U.S.$100,000 for the initial Term, payable in
arrears in eight equal monthly installments of U.S.$12,500, with the first
payment due and payable on May 31, 2002.
B. Newmont also shall reimburse Contractor for the actual amount of reasonable
and necessary expenses incurred in the performance of the Services. 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
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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.
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
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, subcontractor, or representative during the
Term. Contractor shall not be deemed, for any purpose, to be an employee, agent,
servant, worker, or representative of Newmont and shall not have authority to
enter into agreements on behalf of Newmont. Except as specifically set forth
herein, this Agreement and the Services performed hereunder shall not make
Contractor eligible for any retirement plan, insurance program, or any other
employee or social benefits provided to employees of Newmont. CONTRACTOR IS NOT
ENTITLED TO ANY BENEFITS ON ACCOUNT OF OCCUPATIONAL ACCIDENTS NOR TO ANY OTHER
WORKERS'
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COMPENSATION, LABOR RIGHTS BENEFITS, OR SIMILAR BENEFITS PROVIDED BY NEWMONT TO
ITS EMPLOYEES. CONTRACTOR SHALL PAY ALL FEDERAL AND STATE INCOME TAX ON MONIES
EARNED PURSUANT TO THIS AGREEMENT. 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.
7. INSURANCE; INDEMNITY
A. Newmont shall provide and maintain, at Newmont's expense, directors and
officers liability insurance coverage for the period of calendar year 2002, in
amounts and with such coverage as it generally provides for its senior
executives, providing coverage for Contractor in his capacity as director and/or
officer of the Associations on which he serves at Newmont's request pursuant to
this Agreement.
B. To the fullest extent permitted by the indemnification provisions of
Newmont's articles of incorporation and bylaws in effect as of the Effective
Date and the indemnification provisions of the corporation statute of the
jurisdiction of Newmont's incorporation in effect from time to time
(collectively, the "Indemnification Provisions"), and in each case subject to
the conditions thereof, Newmont shall (i) indemnify Contractor, as a director or
officer of any Association on which he serves, at any time during calendar year
2002, at Newmont's request ("Company Positions"), against all liabilities and
reasonable expenses that may be incurred by Contractor in any threatened,
pending, or completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative, and whether formal or informal, because
Contractor does or did hold any Company Position and against which Contractor
legally may be indemnified by Newmont, and (ii) pay for or reimburse the
reasonable expenses incurred by Contractor in the defense of any proceeding to
which Contractor is a party because Contractor does or did hold any Company
Position. The rights of Contractor under the Indemnification Provisions shall
survive the expiration or termination of this Agreement. The foregoing provision
shall in no way reduce or otherwise alter the insurance coverages provided for
Contractor by Newmont or any of its affiliates, for periods of time prior to the
Effective Date, for Contractor's activities as a director, officer, and/or
employee of Newmont and/or such affiliates.
C. Contractor shall indemnify, defend, and hold harmless Newmont, its
affiliates, and their respective directors, officers, employees, and agents,
against and from any and all losses, claims, actions, suits (including costs and
reasonable attorneys fees), and damages to the extent the same arise out of or
are in any way connected with 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.C. shall
survive the expiration or termination of this Agreement.
8. TERMINATION
A. 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. Subject to the provisions of Section 3, above,
Newmont shall pay Contractor for Services performed and expenses incurred to the
date of such termination and for all compensation which would have been due to
Contractor through the end of the Term had Newmont not so terminated this
Agreement.
B. Contractor may terminate this Agreement by giving written notice of
termination to Newmont. Contractor shall stop all work on the date specified in
the notice. Subject to the provisions of Section 3, above, Newmont shall pay
Contractor for Services performed and expenses incurred to the date of such
termination. Contractor waives and shall forfeit all additional compensation
which would have been due to Contractor through the end of the Term had
Contractor not so terminated this Agreement.
C. In the event of any termination, 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.
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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.
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
This Agreement shall be governed by and interpreted in accordance with the laws
of the State of Colorado, excepting Colorado law pertaining to choice of law or
conflicts of law. The parties hereby submit to the jurisdiction of the state and
federal courts in the state of Colorado and agree that the state and federal
courts in the state of Colorado shall be the exclusive forum for the resolution
of any disputes related to, arising out of, or arising under this Agreement,
whether based in tort, contract, or other legal theory.
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This Agreement is executed as of this 25th day of May, 2002, intended to be
effective, however, as of the Effective Date.
NEWMONT INTERNATIONAL SERVICES LIMITED
By: /s/ Xxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxxx
--------------------------------- ----------------------------------
Name: Xxxxx X. Xxxxx Xxxxxx X. Xxxxxx
Title: Vice President and Secretary Tax I.D. No.:
Address for Notice Purposes: Address for Notice Purposes:
Newmont International Services Limited
0000 Xxxxxxx Xxxxxx - 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Chief Executive Officer
Fax Number: (000) 000-0000
With a copy of Notice to:
Newmont International Services Limited
0000 Xxxxxxx Xxxxxx - 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Legal Department
Fax Number: (000) 000-0000
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Individual - Colorado
Consulting Agreement
Version1(9/01)
