Exhibit 10(k)
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NEWMONT
ANNUAL INCENTIVE COMPENSATION PLAN
(Effective as of January 1, 2002)
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NEWMONT
ANNUAL INCENTIVE COMPENSATION PLAN
(Effective as of January 1, 2002)
The Board of Directors of Newmont USA Limited, a Delaware corporation (the
"Company"), hereby adopts the Newmont Annual Incentive Compensation Plan (the
"Plan"), effective as of January 1, 2002 (the "Effective Date"). This Plan is
effective for the 2002 Plan Year and will apply to subsequent Plan Years, unless
terminated or amended by the Board (as defined herein).
PURPOSE
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The purpose of the Plan is to provide to those employees of the Company and
its Affiliated Entities (as 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 maximize cash flow, minimize production costs, and
positively impact earnings per share. Employees of the Company and participating
Affiliated Entities will be rewarded in accordance with the terms and conditions
described below.
ARTICLE 1
DEFINITIONS
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1.1 "Actual Earnings per Share" means the actual Earnings per Share for the
Plan Year, as determined by the Company.
1.2 "Actual Cash Cost per Equivalent Ounce" means the actual Cash Cost per
Equivalent Ounce for the Plan Year, as determined by the Company.
1.3 "Actual Pro-Rata Indexed Operating Cash Flow" means the Actual Pro-Rata
Indexed Operating Cash Flow for the Plan Year, as determined by the Company.
1.4 "Affiliated Entity(ies)" means any corporation or other entity, now or
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.
1.5 "Board" means the Board of Directors of the Company.
1.6 "Bonus Eligible Earnings" means the total base salary earnings of the
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-
1
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 the Bonus Eligible Earnings of each
Eligible Employee shall be equal to such Employee's base salary, on an
annualized basis, as of the date immediately preceding the Change of Control
and, in the case of a Terminated Eligible Employee, such Employee's base salary
for the Plan Year through the date of termination of employment.
1.7 "Cash Cost per Equivalent Ounce" means the Actual Cash Cost per
Equivalent Ounce for the Plan Year, as determined by the Company.
1.8 "Cash Cost per Equivalent Ounce Performance Percentage" means the
Actual Cash Cost per Equivalent Ounce for the Plan Year divided by the Target
Cash Cost per Equivalent Ounce, with the result multiplied by 100, as determined
by the Company.
1.9 "Change of Control" means any of the following events or circumstances
with respect to either Newmont USA Limited or Newmont Mining Corporation
("Newmont Mining"), the ultimate parent of Newmont USA Limited, and for purposes
of the following definition, the "Company" shall mean both Newmont Mining, or
any successor thereto, and Newmont USA Limited, or any successor thereto:
(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
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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 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
to time.
1.11 "Company" means Newmont USA Limited, and where the context requires,
any Affiliated Entity that has become a Participating Employer.
1.12 "Compensation Committee" means the Compensation Committee of the Board
or, if no such committee has been established, the full Board. References to the
Compensation Committee of Newmont Mining shall mean the Compensation Committee
of the Board of Directors of Newmont Mining.
1.13 "Disability" means a condition such that the Employee has terminated
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.
3
1.14 "Earnings per Share" means the reported Earnings per Share of Newmont
Mining adjusted for the tax-affected amount of the financial accounting impact
of "mark-to-market" adjustments relating to the long-dated call options sold by
Newmont Mining, merger charges, restructuring charges, impairment writedowns and
before extraordinary items for the Plan Year, as determined by the Company.
1.15 "Earnings per Share Performance Percentage" means Actual Earnings Per
Share for the Plan Year divided by Target Earnings per Share, with the result
multiplied by 100, as determined by the Company.
1.16 "Employee" means a full-time, salaried employee of the Company and/or
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. 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.
1.17 "Key Objectives" means the key results expected by the end of the
review period for an Employee, as established and administered through the
Company's performance management system.
1.18 "Participating Employer" means the Company and any Affiliated Entity
that the Company determines shall participate in the Plan.
1.19 "Pay Grade" means those jobs sharing a common salary range, as
designated by the Company. If the Pay Grade of an Employee changes during the
Plan Year, the bonus payable to such Employee shall be calculated on a pro rata
basis in accordance with the provisions of Section 5.1.
1.20 "Performance Bonus" means the bonus payable to an Employee pursuant to
Section 3.1.
1.21 "Performance Distribution Guidelines" means the percent of all
salaried Employees classified in each of the Company's designated performance
categories as assigned by the Company.
1.22 "Performance Rating Category" means the numerical category used to
classify the performance of each Employee in accordance with the Company's
performance management system, which range from one (1) at the bottom through
nine (9) at the top.
1.23 "Personal Performance Bonus" means the bonus payable to an Employee
based on the individual performance of such Employee, as set forth in
Section 4.2.
4
1.24 "Personal Performance Bonus Factor" means the factor used to determine
an Employee's Personal Performance Bonus, based upon the Performance Rating
Category assigned to the Employee, in accordance with Table IV-A in Section 4.1.
1.25 "Plan Year" means the calendar year.
1.26 "Position(s)" means the defined job(s) held by an Employee during the
Plan Year.
1.27 "Pro-Rata Indexed Operating Cash Flow" means the consolidated "cash
flow from operations" from the cash flow statement of Newmont Mining for the
Plan Year, adjusted for ownership interests in Affiliated Entities and indexed
for gold and copper prices, as determined by the Company.
1.28 "Pro-Rata Indexed Operating Cash Flow Performance Percentage" means
the Actual Pro-Rata Indexed Operating Cash Flow for the Plan Year divided by the
Target Pro-Rata Indexed Operating Cash Flow for the Plan Year, with the result
multiplied by 100, as determined by the Company.
1.29 "Retirement" means termination of employment with the Company and/or
all Participating Employers by an Employee who immediately begins to receive
benefits from a defined benefit plan of the Company or a Participating Employer.
1.30 "Severance" means the termination of employment with the Company
and/or all Participating Employers because of an event entitling the Employee to
benefits under the terms of the Newmont Severance Pay Plan 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.
1.31 "Target Cash Cost per Equivalent Ounce" means the target Cash Cost per
Equivalent Ounce established by the Compensation Committee of Newmont Mining for
the Plan Year.
1.32 "Target Earnings Per Share" means the target Earnings Per Share
established by the Compensation Committee of Newmont Mining for the Plan Year.
1.33 "Target Pro-Rata Indexed Operating Cash Flow" means the target
Pro-Rata Indexed Operating Cash Flow established by the Compensation Committee
of Newmont Mining for the Plan Year.
1.34 "Terminated Eligible Employee" means an Employee who terminates
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/her sole discretion, also designate
in writing other Employees who terminate employment during the Plan Year under
other circumstances as "Terminated Eligible Employees".
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ARTICLE II
ELIGIBILITY
All Employees of the Company and/or a Participating Employer are
potentially eligible to receive a bonus payment 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 Plan Year, or (ii) they are a Terminated Eligible Employee with
respect to such Plan Year (such Employees are hereafter referred to as "Eligible
Employees"). 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 of Newmont Mining may, prior to the end of the Plan Year,
exclude from eligibility for participation under this Plan with respect to the
Plan Year any Employee or Employees, as the Compensation Committee of Newmont
Mining may determine in its sole discretion.
ARTICLE III
PERFORMANCE BONUS
3.1 Determination of Performance Bonus. (a) For the Plan Year, the
Performance Bonus for each Eligible Employee who is in Pay Grade 109 and above
on the last day of the Plan Year (or was in such Pay Grade at the time of
termination of employment), and each Eligible Employee who is in Pay Grade 108
and below who is employed in the corporate office or in a non-site location, as
determined by the Company, on the last day of the Plan Year (or was in such Pay
Grade and at such location at the time of termination of employment) will be
determined pursuant to the following provisions:
(i) The appropriate weighting factors for each Eligible Employee shall
be determined in accordance with Appendix A. The applicable weighting
factor for each performance factor (the Cash Cost per Equivalent Ounce
Performance Percentage, the Earnings per Share Performance Percentage
and the Pro-Rata Indexed Operating Cash Flow Performance Percentage)
for each Eligible Employee shall then be multiplied by the applicable
Bonus Payout as a Percentage of Target percentage in subsection (iv)
below and the results summed to determine the aggregate Performance
Bonus percentage for each Eligible Employee for the Plan Year.
(ii) When calculating Performance Percentages, there is a cap of 200%
for each percentage calculated.
(iii) If an Eligible Employee changes Pay Grades during the Plan Year,
a prorata calculation shall be made based upon the number of days
spent in each applicable Pay Grade.
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(iv) SCHEDULE
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Performance Bonus Payout
Percentage as a Percent of Target
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50 or less 0%
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100 (Target) 100%
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105 125%
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110 150%
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115 175%
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120 or more 200%
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If the Performance Percentage of a measure is less than 100 but more than 50,
the Bonus Payout as a Percent of Target shall be the same as the Performance
Percentage. If the Performance Percentage of a measure otherwise falls between
the various Performance Percentages set forth in the foregoing Schedule, then
the Bonus Payout as a Percent of Target percentages set forth in the foregoing
Schedule shall be interpolated so that such percentage bears the same
relationship to the Performance Bonus as a Percent of Target percentages for the
two closest Performance Percentages.
The Compensation Committee of Newmont Mining may, in its sole discretion,
adjust the Performance Percentage of any measure or otherwise increase the
Performance Bonus otherwise payable in order to reflect changed circumstances or
such other matters as the Compensation Committee of Newmont Mining deems
appropriate.
(b) For the Plan Year, the Performance Bonus for each Eligible Employee who
is in Pay Grade 108 or below on the last day of the Plan Year (or was in such
Pay Grade at the time of termination of employment) and who is not assigned to
the corporate office or a non-site location, will be determined in accordance
with such performance factors, weighting factors and other methods of bonus
determination as shall be established for each specific site or region by the
Company for the Plan Year. Each operating site shall develop its own Critical
Performance Indicators for this purpose.
3.2 Determination of Target Performance Level. An Employee's Target
Performance Level is determined by the Employee's Pay Grade pursuant to the
following Table III:
TABLE III
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Pay Target
Grade Performance Level
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207 67%
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205-206 55%
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203-204 50%
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113-202 33%
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111-112 27%
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110 23%
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109 20%
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107-108 15%
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105-106 10%
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11-104 5%
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3.3 Terminated Eligible Employees. Terminated Eligible Employees shall be
eligible to receive a Performance Bonus. This bonus will be calculated as
follows:
Targeted Performance Percentage x Year to Date Bonus Eligible Earnings =
Performance Bonus Payable
ARTICLE IV
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PERSONAL PERFORMANCE BONUS
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4.1 Personal Performance Level. At the end of the Plan Year, each Eligible
Employee's supervisor will evaluate the Employee and rate the Employee's
personal performance level. The Personal Performance Bonus for the Chairman and
Chief Executive Officer of the Company shall be determined by the Compensation
Committee of Newmont Mining. In accordance with the Company's performance
management system, the supervisor will rate the degree to which the Employee met
the Key Objectives that were established for the Employee during the Plan Year.
Each Employee will be rated by the Employee's supervisor in one of the Company's
Performance Rating Categories. In conjunction with these ratings, the Company
will assign a Personal Performance Bonus Factor for the Employee from Table
IV-A, which Personal Performance Bonus Factor may be greater or smaller than the
Bonus Factor set forth in Table IV-A, as determined in the sole discretion of
the Company. The distribution of Personal Performance Ratings and Personal
Performance Bonus Factors will be reviewed annually by an executive review
committee for internal equity and consistency.
TABLE IV-A
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Performance Personal Performance
Rating Category Bonus Factor
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1 0
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2 .15
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3 .30
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4 .75
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5 1.0
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6 1.1
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7 1.3
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8 1.5
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9 2.0
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8
4.2 Determination of Personal Performance Bonus. Subject to Section 4.3, an
Eligible Employee's Personal Performance Bonus is calculated by multiplying (x)
the Eligible Employee's Bonus Eligible Earnings by (y) the Personal Performance
Bonus Factor determined pursuant to Section 4.1 and (z) multiplying that product
by the applicable percentage from the Target Personal Performance Level, as set
forth in the following Table IV-B:
TABLE IV-B
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Pay Target Personal
Grade Performance Level
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207 33%
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205-206 30%
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203-204 25%
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113-202 17%
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111-112 13%
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110 12%
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109 10%
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107-108 9%
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105-106 6.5%
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103-104 4%
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11-102 0%
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4.3 Proration of Certain Bonuses. Notwithstanding any other provision in
this ARTICLE IV, except as approved by the Compensation Committee of Newmont
Mining prior to the payment of Personal Performance Bonuses, or subsequently
thereto by ratification, the amount of the Personal Performance Bonuses payable
to all Eligible Employees of the Company and all Participating Employers in Pay
Grades 109 - 207 may not exceed the amount that would be payable to all such
Eligible Employees if each of their Personal Performance Bonus Factors were
determined to be 1.1.
4.4 Terminated Eligible Employees. Terminated Eligible Employees shall be
eligible to receive a Personal Performance Bonus based upon an assumed Personal
Performance Bonus Factor of 1.0, so that the Terminated Eligible Employees will
receive a Personal Performance Bonus at their individual Target Personal
Performance Level multiplied by their Bonus Eligible Earnings for the Plan Year.
4.5 Ineligible Employees. Eligible Employees whose Personal Performance
Bonus Factor (determined pursuant to Section 4.1) is less than .15% shall not be
eligible to receive a Personal Performance Bonus.
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ARTICLE V
PAYMENT OF BONUS
5.1 Pay Grade. The bonus payable to an Eligible Employee who was in more
than one Pay Grade during the Plan Year shall be calculated on a pro-rata basis
in accordance with the amount of time spent by such Eligible Employee in each
Pay Grade during the Plan Year.
5.2 Time and Method of Payment. The aggregate of any and all bonuses
payable under the Plan shall be payable to each Eligible Employee (other than
Terminated Eligible Employees) in cash as soon as practicable following the
close of the Plan Year. Terminated Eligible Employees shall receive the
aggregate of any and all bonuses payable under the Plan in cash as soon as
practicable following the date of their termination from employment with the
Company.
5.3 Withholding Taxes. All bonuses payable hereunder shall be subject to
the withholding of such amounts as the Company may determine is required to be
withheld pursuant to any applicable federal, state, local or foreign law or
regulation.
ARTICLE VI
CHANGE OF CONTROL
6.1 In General. In the event of a Change of Control, each Eligible Employee
(including Terminated Eligible Employees who terminate employment during the
Plan Year in which the Change of Control occurs) shall become entitled to the
payment of a Performance Bonus and a Personal Performance Bonus, in accordance
with the provisions of this Article.
6.2 Calculation of Bonuses. Upon a Change of Control, each Eligible
Employee, together with each Terminated Eligible Employee, shall become entitled
to the payment of (i) a Performance Bonus calculated on the basis of a
Performance Percentage equal to the greater of the actual results attained for
the Plan Year or the applicable Targets for such Plan Year and (ii) a Personal
Performance Bonus calculated on the basis of a Personal Performance Bonus Factor
equal to the greater of the actual Personal Performance Bonus Factor for the
Plan Year or a Personal Performance Bonus Factor of 1.0. If a Change of Control
occurs prior to the time that the Compensation Committee of Newmont Mining has
established the targets for the Plan Year, such percentages shall be based upon
the corresponding percentages for the immediately preceding Plan Year.
6.3 Payment of Bonuses. The bonuses payable in accordance with the
provisions of this Article VII shall be calculated and paid as soon as
practicable following the date of the Change of Control, but in no event later
than the sixtieth day after the date of the Change of Control. Such payments
shall be subject to 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. Upon the completion of such payments, Eligible Employees and
Terminated Eligible Employees shall have no further right to the payment of any
bonus hereunder (other than any
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bonus payable hereunder with respect to a previous Plan Year that has not yet
been paid) and this Plan shall terminate.
ARTICLE VII
GENERAL PROVISIONS
7.1 Administration. The Plan will be administered by the Compensation
Committee of Newmont Mining or its delegees. The Compensation Committee of
Newmont Mining shall interpret the provisions of the Plan in its full and
absolute discretion. The determinations of the Compensation Committee of Newmont
Mining with respect to the Plan shall be conclusive. All expenses of the Company
in administering the Plan shall be borne by the Company.
7.2 Plan Unfunded. The Plan shall be unfunded and no trust or other 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.
7.3 Participation in Plan by Affiliates. Any Affiliated Entity shall become
a party to this Plan and become a Participating Employer as determined by the
Company.
7.4 Amount Payable Upon Death of Employee. If an Eligible Employee who is
entitled to payment hereunder dies after becoming eligible for payment but
before receiving full payment of the amount due, or if an Eligible Employee dies
and becomes a Terminated Eligible Employee, all amounts due shall be paid as
soon as practicable after the death of the Eligible Employee, in a cash lump
sum, to the beneficiary or beneficiaries designated by the Eligible Employee 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 an Eligible Employee shall be paid to
the Eligible Employee's estate.
7.5 Right of Offset. To the extent permitted by applicable law, the Company
may, in its sole discretion, apply any bonus payments otherwise due and payable
under this Plan against any Eligible Employee loans outstanding to the Company
or other debts of the Employee to the Company.
7.6 Amendments, Termination, Etc. The Board, either upon its own initiative
or upon the recommendation of the Compensation Committee of Newmont Mining, may
at any time amend, modify, suspend or terminate the Plan, provided, however,
that the Compensation Committee of Newmont Mining may, consistent with its
administrative powers, waive or adjust provisions of the Plan as it determines
necessary from time to time.
7.7 Payments Due Minors or Incapacitated Persons. If any person entitled to
a payment under the Plan is a minor, or if the Compensation Committee of Newmont
Mining 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 of Newmont
11
Mining 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 of Newmont Mining, 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 of Newmont Mining,
the Plan and the Company.
7.8 Section Headings. The Section headings are included herein only for
convenience, and they shall have no effect on the interpretation of the Plan.
7.9 Severability. If any article, section, subsection or specific 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.
7.10 No Right to Employment. The establishment of this Plan shall not 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.
7.11 Transferability. Any bonus payable hereunder is personal to the
Eligible Employee and may not be sold, exchanged, transferred, pledged, assigned
or otherwise disposed of except by will or by the laws of descent and
distribution.
7.12 Successors. This Plan shall be binding upon and inure to the benefit
of the Company, the Participating Employers and the Employees and their
respective heirs, representatives and successors.
7.13 Governing Law. The Plan and all agreements hereunder shall be
construed in accordance with and governed by the laws of the State of Colorado,
unless superseded by federal law.
Adopted as of January 1, 2002.
NEWMONT USA LIMITED
By: /s/ Robert J. Bush
-------------------------------------
Vice President, Administration
and Human Resources
12
APPENDIX A
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Consolidated Corporate Performance
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Cash Cost/Equivalent Oz. Pro-Rata Indexed Earnings per
(including Corporate G&A) Operating Cash Flow Share
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Pay Grade 109 and Above, 25% 50% 25%
and Pay Grade 108 and below
employed in the corporate
office or a non-site location
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13