Exhibit 10(m)
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NEWMONT MINING CORPORATION
INTERMEDIATE TERM INCENTIVE COMPENSATION PLAN
(Amended and Restated Generally Effective as of January 1, 2001)
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NEWMONT MINING CORPORATION
INTERMEDIATE TERM INCENTIVE COMPENSATION PLAN
(As Amended and Restated Generally Effective as of January 1, 2001)
The board of directors of Newmont Mining Corporation (formerly Newmont Gold
Company) (the "Company"), established the Newmont Gold Company Intermediate Term
Incentive Compensation Plan (the "Plan"), effective January 1, 1997 (the
"Effective Date"). The Plan was previously amended and restated in its entirety,
generally effective as of January 1, 1998 and the name of the Plan was changed
to the Newmont Mining Corporation Intermediate Term Incentive Compensation Plan
effective May 15, 2000. The Plan is hereby amended and restated in its entirety,
generally effective as of January 1, 2001, as set forth below. The Plan, unless
otherwise terminated or amended by the Board (as defined herein) shall terminate
following the Performance Period (as defined herein) ending December 31, 2003.
PURPOSE
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The purpose of the Plan is to provide to selected key employees of the
Company and its Affiliated Entities (defined herein) that participate in the
Plan a more direct interest in the success of the operations of the Company by
rewarding their successful efforts to minimize production costs, expand
resources and optimize capital investments. Employees of the Company and
participating Affiliated Entities will be rewarded in accordance with the terms
and conditions described below.
ARTICLE I
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DEFINITIONS
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1.1 "Affiliated Entity(ies)" means any corporation or other entity, now or
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hereafter formed, that is or shall become affiliated with the Company, either
directly or indirectly, through stock ownership, control or otherwise, as
determined by the Company.
1.2 "Annual Return on Invested Capital" means the sum of the Company's
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consolidated net income applicable to common shareholders and Pro-rata Tax-
effected Interest Expense for a calendar year divided by the average of the sum
of the Company's Pro-rata Debt and consolidated stockholders' equity for the
year. Consolidated net income applicable to common shareholders and consolidated
stockholders' equity are the amounts reflected in the Company's annual audited
consolidated financial statements. The average of the sum of Pro-rata Debt and
shareholders' equity is determined by taking the balance of each as of the end
of the previous year, adding such balances to the balances as of the end of the
current year, and dividing the result by two.
1.3 "Average Return on Invested Capital" means the sum of the Annual
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Return on Invested Capital for each fiscal year in the applicable Performance
Period, divided by the number of years in the applicable Performance Period,
beginning with the Performance Period from
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January 1, 2000 through December 31, 2002, provided, however, that for such
Performance Period Average Return on Invested Capital shall be based upon the
2001 and 2002 fiscal years only.
1.4 "Average Return on Invested Capital Factor" means the Performance
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Factor determined with respect to the Company's Average Return on Invested
Capital for the relevant Performance Period.
1.5 "Board" means the Board of Directors of the Company.
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1.6 "Bonus Eligible Earnings" means the total base salary earnings of the
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Employee during the Plan Year. If an Employee is absent from work because of a
work-related injury, the Employee's "Bonus Eligible Earnings" will be determined
by his actual gross W-2 base earnings during the Plan Year. In the case of a
Terminated Eligible Employee who is Disabled, "Bonus Eligible Earnings" will be
determined by his actual gross W-2 base earnings, including short-term
disability pay received during the Plan Year, but excluding pay from any other
source. If an Employee dies during the Plan Year, the "Bonus Eligible Earnings"
for such Terminated Eligible Employee will be determined by his actual gross W-2
base earnings. If an Employee is on active military duty during a Plan Year, the
"Bonus Eligible Earnings" will be determined by his actual gross W-2 base
earnings during the Plan Year, exclusive of any military pay. If an Employee
does not receive a W-2, his "Bonus Eligible Earnings" shall be determined on the
basis of his actual gross base earnings for the Plan Year, or portion thereof,
as shown on the payroll records of the Company or the Participating Employer. In
all cases, an Employee's "Bonus Eligible Earnings" shall be computed before
reduction for pre-tax contributions to an employee benefit plan of the Company
pursuant to Section 401(k) or Section 125 of the Code. In the event of a Change
of Control, each Participant's "Bonus Eligible Earnings" for purposes of
computing the applicable ITIP Bonus in accordance with the provisions of Section
3.3 shall be equal to each such Participant's base salary, on an annualized
basis, as of the date immediately preceding the Change of Control, or, in the
case of a Participant who terminates employment prior to the date of the Change
of Control, such Participant's base salary for the Plan Year through the date of
termination of employment.
1.7 "Cash Cost Factor" means the Performance Factor determined with
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respect to the Company's Cash Cost Per Equity Ounce for the relevant Performance
Period.
1.8 "Cash Cost Per Equity Ounce" means the Company's "Total Cash Costs" of
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the relevant producing properties, as determined by the Company, on an equity
basis during the relevant Performance Period, divided by the total equivalent
ounces produced from the same properties on an equity basis during the relevant
Performance Period. The components of "Total Cash Costs" are as defined by the
Gold Institute reporting standard, regardless of whether the relevant property
primarily produces gold. Beginning with the 2001-2003 Performance Period, by-
product credits shall be added back to cash costs to the extent production from
such by-product credits is included in equivalent ounce production as determined
by the Company. Equivalent ounces produced are determined by taking the
Company's equity gold production ounces from the same properties used in
determining "Total Cash Costs" and adding to it relevant non-gold production, as
determined by the Company, which is converted to gold ounces based upon the
relative price of an ounce of gold to the price of a unit of non-gold production
as determined by the Company. To the extent a by-product credit is taken in
determining "Total Cash Costs," production resulting in such by-product
2
credit shall not be included in arriving at total equity ounces produced. The
Cash Cost per Equity Ounce shall be calculated by the Company and approved by
the Compensation Committee.
1.9 "Change of Control" means:
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(a) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) (a "Person") of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of
either (i) the then outstanding shares of common stock of the Company (the
"Outstanding Common Stock") or (ii) the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Voting Securities"); provided, however,
that for purposes of this subsection (a), the following acquisitions shall not
constitute a Change of Control: (i) any acquisition directly from the Company,
(ii) any acquisition by the Company, (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company or (iv) any acquisition pursuant to a
transaction which complies with clauses (i), (ii) and (iii) of subsection (c) of
this Section; or
(b) Individuals who, as of the date hereof, constitute the Board of
Directors of the Company (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board of Directors of the Company;
provided, however, that any individual becoming a director subsequent to the
date hereof whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board of Directors of the
Company; or
(c) Consummation by the Company of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of the
assets of the Company or the acquisition of assets of another entity (a
"Business Combination"), in each case, unless, following such Business
Combination, (i) all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the Outstanding Common Stock and
Outstanding Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50% of, respectively, the
then outstanding shares of common stock and the combined voting power of the
then outstanding voting securities entitled to vote generally in the election of
directors, as the case may be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation which as a result of
such transaction owns the Company or all or substantially all of the Company's
assets either directly or through one or more subsidiaries) in substantially the
same proportions as their ownership immediately prior to such Business
Combination of the Outstanding Common Stock and Outstanding Voting Securities,
as the case may be, (ii) no Person (excluding any employee benefit plan (or
related trust) of the Company or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, 20% or more of,
respectively, the then outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined voting power of the
then outstanding voting
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securities of such corporation except to the extent that such ownership existed
prior to the Business Combination and (iii) at least a majority of the members
of the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the execution of
the initial agreement, or of the action of the Board, providing for such
Business Combination; or
(d) Approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
1.10 "Code" means the Internal Revenue Code of 1986, as amended from time
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to time.
1.11 "Common Stock" means the $1.60 par value common stock of Newmont
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Mining Corporation.
1.12 "Company" means Newmont Mining Corporation, and where the context
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requires, any Affiliated Entity that has become a Participating Employer.
1.13 "Compensation Committee" means the Compensation Committee of the Board
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of Directors of the Company.
1.14 "Disability" means a condition such that the Employee has terminated
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employment with the Company and/or all Participating Employers with a qualifying
disability and has immediately begun receiving benefits from a long-term
disability plan of the Company or a Participating Employer.
1.15 "Earnings Factor" means the Performance Factor determined with
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respect to the Company's Earnings Per Share for the relevant Performance Period.
The Earnings Factor shall be applicable in computing a Participant's ITIP Bonus
for the Performance Period ending December 31, 2001 and not for subsequent
Performance Periods.
1.16 "Earnings Per Share" means the earnings per share, before
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extraordinary items (determined in accordance with the provisions of Accounting
Principles Board Opinion Number 30), of the Company, for the relevant
Performance Period, as determined by the Company.
1.17 "Employee" means a full time, salaried employee of the Company and/or
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a Participating Employer, excluding temporary or leased employees. For purposes
of this Plan, an employee is any individual who provides services to the Company
as a common law employee and whose remuneration is subject to the withholding of
federal income tax pursuant to Section 3401 of the Code. An Employee shall not
include any individual (i) who provides services to the Company and/or a
Participating Employer under an agreement, contract, or any other arrangement
pursuant to which the individual is initially classified as an independent
contractor by the Company and/or a Participating Employer, or (ii) whose
remuneration for services has not been treated initially as subject to the
withholding of federal income tax pursuant to Section 3401 of the Code even if
the individual is subsequently reclassified as a common law employee as a result
of a final decree of a court of competent jurisdiction or the settlement of an
administrative or judicial proceeding.
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1.18 "Fair Market Value" means, with respect to a share of Common Stock as
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of a given date, the average of the high and low sales prices for a share of
Common Stock as reported for the Company by Reuters for such date; provided,
however, that if there is no sale of shares of Common Stock reported by Reuters
on such date, such fair market value shall be the average between the bid and
asked prices for a share of common stock reported by Reuters at the close of
trading on such date; provided further, however, that if no such prices are
reported for such day, the most recent day for which such prices are available
shall be used. In the event that the method for determining the fair market
value of a share of Common Stock provided for in the previous sentence shall not
be practicable, then such fair market value shall be determined by such other
reasonable valuation method as the Compensation Committee shall, in its
discretion, select and apply in good faith as of the given date.
1.19 "ITIP Bonus" means the bonus payable to a Participant under this Plan
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with respect to a Performance Period (or portion thereof as provided in Section
3.2), which shall be determined by multiplying the Participant's Bonus Eligible
Earnings for the last Plan Year of such Performance Period (or portion thereof)
by the product of the following: (a) for the Performance Period from January 1,
1999 through December 31, 2001, 70% times (Targeted Payout Percentage times
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Management Effectiveness Factor) plus 30% times (Targeted Payout Percentage
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times Earnings Factor); (b) for the Performance Period from January 1, 2000
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through December 31, 2002, 70% times (Targeted Payout Percentage times
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Management Effectiveness Factor) plus 30% times (Targeted Payout Percentage
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times Average Return on Invested Capital Factor); and (c) for the Performance
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Period from January 1, 2001 through December 31, 2003, 33-1/3% times (Targeted
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Payout Percentage times Cash Cost Factor) plus 33-1/3% times (Targeted Payout
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Percentage times Total Reserves Factor) plus 33-1/3% times (Targeted Payout
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Percentage times Average Return on Invested Capital Factor). The ITIP Bonus
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calculation for Performance Periods beginning on January 1, 2002 and thereafter
shall be established by the Board and this Plan shall not be effective for any
Performance Period ending after December 31, 2003 unless so extended by the
Board.
1.20 "Management Effectiveness Factor" means, with respect to any
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applicable Performance Period, the average of the Production Factor, the Cash
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Cost Factor and the Total Reserves Factor for such Performance Period.
1.21 "Measure of Performance" means Production Equity Ounces, Cash Cost Per
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Equity Ounce, Total Reserves Equity Ounces, Earnings Per Share and Average
Return on Invested Capital, as the case may be, for the relevant Performance
Period.
1.22 "Participant" means an Employee who has satisfied the eligibility
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requirements of Article II and who is, or may become, entitled to an ITIP Bonus
under the provisions of this Plan.
1.23 "Participating Employer" means the Company and any Affiliated Entity
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that the Company determines shall participate in the Plan.
1.24 "Pay Grade" means those jobs sharing a common salary range, as
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designated by the Company. If the Pay Grade of a Participant changes during the
Performance Period, the Targeted
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Payout Percentage applicable to such Participant shall be prorated in accordance
with the provisions of Section 1.36.
1.25 "Performance Categories" means, effective for the Performance Period
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beginning January 1, 1999 and ending December 31, 2001, and for all subsequent
Performance Periods, the following categories used to determine the Performance
Factors: "Outstanding," "Target" and "Threshold". The Compensation Committee
shall approve the level of performance for each Performance Category and for
each Measure of Performance with respect to each Performance Period. The
Compensation Committee shall retain the discretion to change the required levels
of performance, and the underlying measurements of performance, in order to
reflect the acquisition or disposition of assets, or for other reasons as
determined by the Compensation Committee in its sole discretion.
1.26 "Performance Factor" means the Production Factor, the Cash Cost
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Factor, the Total Reserves Factor, the Average Return on Invested Capital Factor
or the Earnings Factor, as the case may be, for the relevant Performance Period.
The Performance Factor for each of the foregoing Factors shall be determined
based upon where each such Measure of Performance falls with respect to the
level of performance approved by the Compensation Committee for each Performance
Category. Effective for the Performance Period beginning January 1, 1999 and
ending December 31, 2001, and for all subsequent Performance Periods, the
Performance Factor for the Outstanding Performance Category shall be two, the
Performance Factor for the Target Performance Category shall be one, and the
Performance Factor for the Threshold Performance Category shall be zero. The
Performance Factor for each Measure of Performance will be determined by
interpolation, with rounding to the nearest 0.01, where the Measure of
Performance falls between the specified Performance Categories for such
Performance Period. The Compensation Committee shall certify in writing, prior
to the payment of any ITIP Bonus, that the Performance Factors used for the
calculation of the ITIP Bonus have been attained.
1.27 "Performance Period" means the period of Plan Year(s) over which the
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Measures of Performance shall be calculated for purposes of determining the
amount of an ITIP Bonus. The Performance Periods shall be composed of three
Plan Years beginning January 1, 1999.
1.28 "Plan Year" means the calendar year.
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1.29 "Position(s)" means the defined job(s) held by an Employee during the
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Plan Year.
1.30 "Production Equity Ounces" means the total equivalent equity ounces
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produced by the Company in the relevant Performance Period, as calculated by the
Company and approved by the Compensation Committee.
1.31 "Production Factor" means the Performance Factor attributable to
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Production Equity Ounces with respect to the relevant Performance Period.
1.32 "Pro-rata Tax-effected Interest Expense" means the Company's annual
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consolidated interest expense as reflected in the annual consolidated income
statement less the minority interest
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in Minera Yanacocha SRL's interest expense included in the consolidated amount
plus the Company's share of P.T. Newmont Nusa Tengarra's third party interest
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expense, with the result multiplied by one minus the Company's marginal U.S. tax
rate.
1.33 "Pro-rata Debt" means the sum of all interest bearing debt reflected
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on the Company's consolidated financial statements less the minority interest in
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Minera Yanacocha SRL's debt included in the consolidated amount plus the
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Company's share of P.T. Newmont Nusa Tengarra's third party interest bearing
debt.
1.34 "Retirement" means termination of employment with the Company and/or
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all Participating Employers by an Employee who immediately begins to receive
benefits from a defined benefit pension plan of the Company or a Participating
Employer.
1.35 "Severance" means the termination of employment with the Company
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and/or all Participating Employers because of an event entitling the Employee to
benefits under the terms of the Severance Pay Plan of Newmont Mining Corporation
if the Employee complies with all requirements of the Severance Pay Plan and
immediately begins receiving benefits under the terms of the Severance Pay Plan.
1.36 "Targeted Payout Percentage" means the percentage of a Participant's
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Bonus Eligible Earnings taken into account when calculating the ITIP Bonus with
respect to a Performance Period. The Targeted Payout Percentage for the
Performance Period beginning January 1, 1999 and ending December 31, 2001, the
Performance Period beginning January 1, 2000 and ending December 31, 2002 and
the Performance Period beginning January 1, 2001 and ending December 31, 2003
shall be determined in accordance with the provisions of Schedule A attached
hereto and hereby made a part hereof. Targeted Payout Percentages for
subsequent Performance Periods shall be established by the Compensation
Committee and attached as additional Schedules to this Plan. If the Pay Grade
of a Participant changes during a Performance Period, the Targeted Payout
Percentage applicable to such Participant shall be prorated based upon the
number of days spent in each Pay Grade during the Performance Period.
1.37 "Terminated Eligible Employee" means an Employee who terminates
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employment with the Company and/or a Participating Employer during the Plan Year
on account of death, Retirement, Disability or Severance. The Vice President of
Human Resources of the Company may, in his sole discretion, also designate in
writing other Employees who terminate employment during the Plan Year under
other circumstances as "Terminated Eligible Employees".
1.38 "Total Reserves Equity Ounces" means the Company's total equity ounces
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of gold in proven and probable gold reserves at the end of the relevant
Performance Period as calculated by the Company and approved by the Compensation
Committee.
1.39 "Total Reserves Factor" means the Performance Factor determined with
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respect to the Total Reserves Equity Ounces for the relevant Performance Period.
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ARTICLE II
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ELIGIBILITY
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All Employees of the Company and/or a Participating Employer in Pay Grades
109 and above are eligible to receive an ITIP Bonus under the Plan, provided (i)
they are on the payroll of the Company and/or a Participating Employer as of the
last day of the relevant Performance Period, or (ii) they are a Terminated
Eligible Employee with respect to such Plan Year. Employees who are on short-
term disability under the Company's short-term disability policy or not working
because of a work-related injury as of the last day of the Plan Year shall be
eligible to receive a bonus under clause (i). Notwithstanding the foregoing
provisions of this Article II, the Compensation Committee may, prior to the end
of any Performance Period, exclude from eligibility for participation under this
Plan with respect to such Performance Period any Employee or Employees, as the
Compensation Committee may determine in its sole discretion.
ARTICLE III
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PAYMENT OF ITIP BONUS
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3.1 Determination of ITIP Bonus - In General. As soon as reasonably
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practicable after the end of each Performance Period, when all of the necessary
information with respect to the Performance Factors for such Performance Period
have been determined, the Compensation Committee shall certify in writing the
extent to which the Measures of Performance satisfy the Performance Categories,
the Performance Factors achieved with respect to such Performance Period, and
any other material terms of this Plan that apply to the payment of the ITIP
Bonus. Following such certification, payment of the ITIP Bonus shall be made to
the eligible Participants (other than Terminated Eligible Employees) in
accordance with the provisions of this Article III as soon as reasonably
practicable.
3.2 Determination of ITIP Bonus and Payment of ITIP Bonus to Terminated
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Eligible Employees. Terminated Eligible Employees shall be entitled to receive
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an ITIP Bonus based upon their Bonus Eligible Earnings for the Plan Year during
which their employment with the Company and/or a Participating Employer
terminates, calculated by using the Targeted Payout Percentage for the
Performance Period applicable to the Plan Year during which the Participant
terminated employment. If a Participant terminates employment before the
completion of one full Plan Year during a Performance Period no ITIP Bonus shall
be paid. Payment shall be made to a Terminated Eligible Employee with respect
to a Performance Period in accordance with Section 3.5 as soon as practicable
following the date of termination from employment with the Company and/or a
Participating Employer.
3.3 Change of Control. In the event of a Change of Control, each
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Participant (including any Terminated Eligible Employee) shall become entitled
to the payment of an ITIP Bonus based upon the applicable Targeted Payout
Percentage for the Performance Period during which such Change of Control occurs
and calculated based upon a Performance Category for each Performance
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Factor equal to the greater of the actual Performance Category attained with
respect to such Performance Factor or the Target Performance Category. If a
Change of Control occurs prior to the time that the Compensation Committee has
established the Targeted Payout Percentages or the levels of performance for the
Performance Categories and Measures of Performance for a Performance Period, the
levels of performance and Targeted Payout Percentages shall be based upon the
immediately preceding Performance Period. Notwithstanding the provisions of
Section 3.5, in the event of a Change of Control, the ITIP Bonus payable
pursuant to this Section 3.3 shall be paid entirely in cash. Payment of the ITIP
Bonus under the foregoing circumstances shall be made as soon as practicable
following the date of the Change of Control. Upon the completion of such
payments, the Participants shall have no further right to the payment of any
ITIP Bonus hereunder (other than an ITIP Bonus previously earned but not yet
paid) and this Plan shall terminate.
3.4 Limitation on ITIP Bonus. Effective for the Performance Period ending
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December 31, 2001 and for all subsequent Performance Periods, the maximum ITIP
Bonus payable to any Participant under this Plan with respect to a Performance
Period shall not exceed 200% of the amount of such Bonus payable to the
Participant if all Performance Factors were at the Target Performance Category
level, based upon the Bonus Eligible Earnings of such Participant for the last
Plan Year in the Performance Period. Notwithstanding the foregoing, the largest
ITIP Bonus payable to any Participant under this Plan with respect to any
Performance Period shall not exceed $3 million.
3.5 Form of Payment. The amount of ITIP Bonuses payable under this Plan
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shall be paid 50% in cash and 50% in shares of Common Stock (payable in whole
shares only with excess amounts paid in cash), which shall be subject to the
restrictions set forth in Section 3.7 below. The number of shares of Common
Stock to be issued in payment of an ITIP Bonus shall be determined based upon
the Fair Market Value of the Common Stock on the date that the Compensation
Committee meets and certifies the satisfaction of the material terms of this
Plan with respect to the payment of the ITIP Bonus in accordance with the
provisions of Section 3.1. Notwithstanding the foregoing, (i) the Compensation
Committee may, in its sole discretion, cause all or any portion of any ITIP
Bonus otherwise payable in shares of Common Stock to be paid in cash, and (ii)
if a Participant terminates employment before payment of an ITIP Bonus and if
all of the Participant's shares of Common Stock granted pursuant to this Plan
are non-forfeitable, in accordance with the provisions of Section 3.7, the
Participant's ITIP Bonus may be paid in cash if approved by the Vice President
of Human Resources of the Company.
3.6 Withholding Taxes. All bonuses payable hereunder shall be subject to
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the withholding of such amounts as the Company may determine is required to be
withheld pursuant to any applicable federal, state or local law or regulation.
The Compensation Committee may, in its sole discretion, permit any Participant
to satisfy the minimum withholding applicable to the portion of the ITIP Bonus
payable in shares of Common Stock by causing the Company to withhold the
appropriate number of shares of Common Stock from the ITIP Bonus otherwise
payable and to make the requisite withholding payments on behalf of the
Participant.
3.7 Restrictions on Common Stock. (a) Shares of Common Stock issued as
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payment of a portion of an ITIP Bonus hereunder shall be restricted and subject
to forfeiture as follows: If a
9
Participant terminates employment prior to the first anniversary of the date on
which such shares of Common Stock were granted to the Participant (as determined
by the Compensation Committee) (the "Grant Date"), all such shares of Common
Stock shall be forfeited. If a Participant terminates employment on or after the
first anniversary of the Grant Date, but prior to the second anniversary of the
Grant Date, the Participant shall forfeit 50% of the shares of Common Stock
awarded as a part of such ITIP Bonus. If a Participant terminates employment on
or after the second anniversary of the Grant Date, the shares of Common Stock
shall not be subject to forfeiture. Notwithstanding the foregoing, if a
Participant terminates employment on account of a Change of Control or is a
Terminated Eligible Employee, none of the shares of Common Stock granted to the
Participant pursuant to this Plan shall be subject to forfeiture.
(b) Effective with respect to the Performance Period ending December
31, 2001, and for all subsequent Performance Periods, the following provisions
of this Section 3.7(b) shall be applicable. For prior Performance Periods, the
provisions of Section 3.7(b) as previously in effect shall be applicable.
Shares of Common Stock issued hereunder as a part of an ITIP Bonus shall not be
subject to transfer by the Participant until such time as the Shares have become
non-forfeitable in accordance with the provisions of Section 3.7(a), at which
time such Shares of Common Stock may be freely transferred by the Participant
subject to all applicable laws, regulations and Company policies.
(c) The Compensation Committee shall cause a legend to be placed on
the Common Stock certificates issued pursuant to this Plan referring to the
restrictions provided by this Section and, in addition, may in its sole
discretion require one or more of the following methods of enforcing the
restrictions: (i) requiring the Participant to keep the stock certificates, duly
endorsed, in the custody of the Company while the restrictions remain in effect;
or (ii) requiring that the stock certificates, duly endorsed, be held in the
custody of a third party while the restrictions remain in effect.
(d) Shares of Common Stock issued under this Plan may be issued
pursuant to the provisions of the Newmont Mining Corporation 1996 Employees
Stock Plan, or otherwise, as determined in the sole discretion of the
Compensation Committee. Effective with respect to the Performance Period ending
December 31, 2002, and subsequent Performance Periods, shares of Common Stock
issued under this Plan shall be issued pursuant to the provisions of the Newmont
Mining Corporation 1999 Employee Stock Plan, or otherwise, as determined in the
sole discretion of the Compensation Committee.
(e) The Compensation Committee may, in its sole discretion, require
the Participant to agree not to make an election pursuant to Section 83(b) of
the Code as a condition for the receipt of Common Stock hereunder.
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ARTICLE IV
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GENERAL PROVISIONS
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4.1 Administration. The Plan will be administered by the Compensation
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Committee or its delegees. The Compensation Committee shall interpret the
provisions of the Plan in its full and absolute discretion. The determinations
of the Compensation Committee with respect to the Plan shall be conclusive. All
expenses of the Company in administering the Plan shall be borne by the Company.
4.2 Plan Unfunded. The Plan shall be unfunded and no trust or other
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funding mechanism shall be established for the Plan. All benefits to be paid
pursuant to the Plan shall be paid by the Company from its general assets and an
Employee (or his heir or devisee) shall not have any greater rights than a
general, unsecured creditor against the Company for any benefit hereunder.
4.3 Participation in Plan by Affiliates. Any Affiliated Entity shall
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become a party to this Plan and become a Participating Employer upon designation
by the Company as a Participating Employer.
4.4 Amount Payable Upon Death of Employee. If a Participant who is
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entitled to payment hereunder dies before receiving full payment of the amount
due, such amount shall be paid, in a cash lump sum, to the beneficiary or
beneficiaries designated by the Participant to receive life insurance proceeds
under the Company's life insurance plan. In the absence of an effective
beneficiary designation under said plan, any amount payable hereunder following
the death of a Participant shall be paid to the Participant's estate.
4.5 Right of Offset. To the extent permitted by applicable law, the
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Company may, in its sole discretion, apply any bonus payments otherwise due and
payable under this Plan against any Participant loans outstanding to the Company
or other debts of the Participant to the Company.
4.6 Amendments, Termination, Etc. The Board, upon the recommendation of
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the Compensation Committee, may at any time amend, modify, suspend or terminate
the Plan.
4.7 Payments Due Minors or Incapacitated Persons. If any person entitled
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to a payment under the Plan is a minor, or if the Compensation Committee
determines that any such person is incapacitated by reason of physical or mental
disability, whether or not legally adjudicated as an incompetent, the
Compensation Committee shall have the power to cause the payment becoming due to
such person to be made to another for his benefit, without responsibility of the
Compensation Committee, the Company, or any other person or entity to see to the
application of such payment. Payments made pursuant to such power shall operate
as a complete discharge of the Compensation Committee, the Plan and the Company.
4.8 Section Headings. The Section headings are included herein only for
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convenience, and they shall have no effect on the interpretation of the Plan.
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4.9 Severability. If any article, section, subsection or specific
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provision is found to be illegal or invalid for any reason, such illegality or
invalidity shall not affect the remaining provisions of the Plan, and the Plan
shall be construed and enforced as if such illegal and invalid provision had
never been set forth in the Plan.
4.10 No Right to Employment. The establishment of this Plan shall not
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be deemed to confer upon any person any legal right to be employed by, or to be
retained in the employ of, the Company or any Affiliated Entity, or to give any
Employee or any person any right to receive any payment whatsoever, except as
provided under this Plan. All Employees shall remain subject to discharge from
employment to the same extent as if this Plan had never been adopted.
4.11 Transferability. Any ITIP Bonus payable hereunder is personal to the
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Participant and may not be sold, exchanged, transferred, pledged, assigned or
otherwise disposed of except by will or by the laws of descent and distribution.
4.12 Successors. This Plan shall be binding upon and inure to the benefit
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of the Company, the Participating Employers and the Participants and their
respective heirs, representatives and successors.
4.13 Governing Law. The Plan and all agreements hereunder shall be
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construed in accordance with and governed by the laws of the State of Colorado,
unless superseded by federal law.
Amended and restated as of January 1, 2001.
NEWMONT MINING CORPORATION
By: /s/ Robert J. Bush
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Vice President, Admin. Services/
Human Resources
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SCHEDULE A
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Targeted Payout Percentages
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Pay Grade 1999-2001 2000-2002 2001-2003
--------- --------- --------- ---------
203 175% 175% 175%
201 125% 125% 125%
200 110% 110% 110%
113-114 65% 65% 65%
111-112 50% 50% 50%
110 40% 40% 40%
109 30% 30% 30%
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