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EXHIBIT 99
CONSULTING AGREEMENT
THIS AGREEMENT is made and entered into as of this 1st day of April,
1999, by and between Newmont International Services Limited (hereinafter
"NEWMONT"), a Delaware corporation and wholly owned subsidiary of Newmont Gold
Company, and Xxxxxx X. Xxxxxx, former Governor of the State of Nevada
(hereinafter "CONSULTANT").
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, 1999 to December 31,
1999 (the "Term"), unless terminated earlier under Paragraph 6. This
Agreement shall automatically terminate at the end of the Term unless
extended by a written agreement between the parties.
2. STATEMENT OF SERVICES
A. During the Term of this AGREEMENT, CONSULTANT shall perform
the work described in Exhibit A hereto (the ?Services?).
B. In performance of the Services, CONSULTANT shall use his best
efforts and exercise a high degree of care, skill, and
judgment as would be expected for professional consultants of
his skill, knowledge and education engaged in the performance
of services of this nature.
C. In his performance of the Services, CONSULTANT shall comply
with all applicable federal and state laws, rules and
regulations, including, but not limited to, those addressing
the preservation of health, safety and the environment.
CONSULTANT shall be solely responsible for and assume full
responsibility for the assessment, collection and payment of
all taxes assessed against him in connection with the Services
to be performed hereunder. CONSULTANT shall be solely
responsible for and assume full responsibility for his actions
and omissions, and CONSULTANT shall indemnify and hold NEWMONT
harmless from and against any and all claims arising as a
result of his failure to comply with the requirements of this
Paragraph 2.C.
D. This AGREEMENT does not preclude CONSULTANT from undertaking
work of this general nature for others; provided, however,
that without NEWMONT's written consent, CONSULTANT shall not
perform work for others where such work is reasonably likely
to result in a conflict of interest between NEWMONT and such
third party.
3. COMPENSATION FOR SERVICES
As compensation for the performance of Services hereunder, CONSULTANT
shall be compensated as and in accordance with the terms set forth in
Exhibit A hereto.
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4. NONDISCLOSURE/NON-USE
CONSULTANT shall not disclose to third parties or use for purposes
other than performing hereunder, without the written consent of
NEWMONT, any information that relates to the technical, legal, or
business affairs or activities of NEWMONT or its subsidiaries or
affiliates obtained by CONSULTANT in connection with the performance of
Services under this AGREEMENT, unless said information:
(i) is, or shall have been, in the possession of CONSULTANT and
not subject to a confidentiality obligation prior to
CONSULTANT?s acquisition thereof in connection with Services
performed hereunder;
(ii) through no act or omission of CONSULTANT becomes published or
otherwise available to the public under circumstances such
that the public may utilize the same without any direct or
indirect obligation to NEWMONT or its subsidiaries or
affiliates;
(iii) is acquired by CONSULTANT from any third party rightfully in
possession of the same and having no direct or indirect
confidentiality obligation to NEWMONT or its subsidiaries or
affiliates with respect to the same.
This Paragraph 4 shall survive the expiration or termination of this AGREEMENT.
5. STATUS OF CONSULTANT
CONSULTANT shall perform the Services as an independent contractor in
accordance with his own methods, the terms of this AGREEMENT, and
applicable laws, rules and regulations. CONSULTANT shall have complete
charge of his personnel (if any) engaged in the performance of the
Services. No one employed or subcontracted by CONSULTANT shall be
deemed for any purpose to be an employee, agent, servant, or
representative of NEWMONT and shall not have authority to enter into
agreements on behalf of NEWMONT or otherwise bind NEWMONT in any
manner. Neither CONSULTANT nor any of his employees or subcontractors
(if any) shall be eligible for any retirement plan, insurance program,
or any other employee benefits provided to employees of NEWMONT.
Consultant is not entitled to workers' compensation benefits and is
obligated to pay all applicable 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.
6. TERMINATION
NEWMONT may terminate the Services being performed under this AGREEMENT
by giving thirty days prior written notice of termination to
CONSULTANT. Upon receipt of such notice from NEWMONT, CONSULTANT shall
stop all work on the date specified in the notice; and NEWMONT shall
pay CONSULTANT for the Services performed up to the date of
termination. NEWMONT shall not be liable to pay any bonus, damage, or
other claim for profits asserted by CONSULTANT.
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7. ASSIGNMENT
This AGREEMENT is for CONSULTANT's unique services and may not be
assigned by CONSULTANT without NEWMONT's written consent, which may be
withheld in NEWMONT's sole discretion. NEWMONT, in its sole discretion,
may assign this contract to an affiliate.
8. ENTIRE AGREEMENT
This AGREEMENT, including its Exhibits, if any, 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, either written or oral, relating to the subject matter
hereof. This AGREEMENT may not be altered or amended except by a
written document executed by a duly authorized representative of each
party.
9. 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.
10. NOTICES
All notices and other required communications hereunder shall be in
writing, addressed as follows:
Newmont International Services Limited
0000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Legal Department
Facsimile Number: (000) 000-0000
Xxxxxx X. Xxxxxx
Xxxxx, Xxxxxx
3773 Xxxxxx Xxxxxx Parkway
0xx Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Facsimile Number: (000) 000-0000
Notices shall be given (a) by personal delivery to the other party, (b)
by facsimile or other electronic communication, or (c) by registered or
certified mail, return receipt requested. All notices shall be
effective and deemed delivered (i) if by personal delivery, on the date
of delivery if during business hours, otherwise the next business day,
(ii) if by facsimile or other electronic communication, on the date it
is received if received during business hours, otherwise the next
business day and (iii) if solely by mail, three business days after
deposit in the mail. A party may change its address, including
increasing the number of addressees, by notice to the other party.
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11. SEVERABILITY
If any provision of this AGREEMENT is invalid or unenforceable, such
provision shall be fully severable from this AGREEMENT and the other
provisions hereof shall remain in full force and effect and shall be
liberally construed to carry out the provisions and intent hereof.
The parties hereto have duly executed this Agreement as of the day and
year first above written.
NEWMONT INTERNATIONAL SERVICES LIMITED
By: /s/ Xxxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxxx
Title: Chairman
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
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EXHIBIT A TO CONSULTING AGREEMENT
A. SERVICES. CONSULTANT shall advise representatives of NEWMONT on federal
governmental affairs issues relating to NEWMONT's interests and mining
operations (and those of its affiliates) within the United States of
America. As part of the Services, CONSULTANT shall consult with members
of Congress, various governmental agencies and the Administration as
requested by Newmont from time to time.
B. COMPENSATION. For Services performed in accordance with the AGREEMENT,
CONSULTANT shall be compensated as follows:
NEWMONT shall pay CONSULTANT a fee of Ten Thousand Dollars
(U.S.$10,000.00) per month during the Term for his performance of the
Services, unless the Agreement is earlier terminated in which case the
amount shall be reduced in accordance with Section 6 of the Agreement.
The monthly consulting fee shall be paid in arrears within five days
after the end of each month.
NEWMONT shall also reimburse CONSULTANT for all routine costs and
expenses he incurs in the performance of the SERVICES, provided that
such costs and expenses are routine and are incurred in the ordinary
course of CONSULTANT'S performance under this AGREEMENT. CONSULTANT
will not incur extraordinary costs and expenses without prior written
approval of NEWMONT. For purposes of this AGREEMENT, extraordinary
costs and expenses include retention of experts, consultants, or other
persons to promote the interests of NEWMONT, the acquisition of
studies, reports, or other information to promote the interests of
NEWMONT, and other items that are not generally considered routine by
consultants and attorneys performing services for clients. CONSULTANT
shall invoice NEWMONT for such amounts, and all nondisputed amounts
shall be paid within thirty (30) days of receipt of the invoice.
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