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EXHIBIT 1
NEWMONT GOLD COMPANY
Debt Securities
Underwriting Agreement
_____________, ____
Dear Sirs:
1. Introductory. Newmont Gold Company, a Delaware
corporation (the "Company"), proposes to issue and sell from time to time
certain of its debt securities registered under the registration statement
referred to in Section 2(a) ("Registered Securities"). The Registered
Securities will be issued under an indenture, dated as of __________, ____ (the
"Indenture"), between the Company and Citibank, N.A., as Trustee, in one or
more series, which series may vary as to interest rates, maturities, redemption
provisions, selling prices and other terms, with all such terms for any
particular series of the Registered Securities being determined at the time of
sale. Particular series of the Registered Securities will be sold pursuant to
a Terms Agreement referred to in Section 3 in the form of Annex I attached
hereto, for resale in accordance with terms of offering determined at the time
of sale. The Registered Securities involved in any such offering are
hereinafter referred to as the "Securities". The firm or firms which agree to
purchase the Securities are hereinafter referred to as the "Underwriters" of
such Securities, and the representative or representatives of the Underwriters,
if any, specified in a Terms Agreement referred to in Section 3 are hereinafter
referred to as the "Representatives"; provided, however, that if the Terms
Agreement does not specify any representative of the Underwriters, the term
"Representatives", as used in this Agreement (other than in Section 5(c) and
the second sentence of Section 3) shall mean the Underwriters.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333-____), including a
prospectus relating to the Registered Securities, has been filed with
the Securities and Exchange Commission (the "Commission") and has
become effective. Such registration statement, as amended at the time
of any Terms Agreement referred to in Section 3, is hereinafter
referred to as the "Registration Statement", and the prospectus
included in such Registration Statement, as supplemented as
contemplated by Section 3 to reflect the terms of the Securities and
the terms of offering thereof, as first filed with the Commission
pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") of the
Rules and Regulations of the Commission (the "Rules and Regulations")
under the Securities Act of 1933, as amended (the "Act"), including
all material incorporated by reference therein, is hereinafter
referred to as the "Prospectus".
(b) On the effective date of the registration statement
relating to the Registered Securities, such registration statement
conformed in all material respects to the requirements of the Act, the
Trust Indenture Act of 1939, as amended (the "Trust
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Indenture Act"), and the Rules and Regulations and did not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and on the date of the Terms Agreement
referred to in Section 3, the Registration Statement and the
Prospectus will conform in all material respects to the requirements
of the Act, the Trust Indenture Act and the Rules and Regulations, and
neither of such documents will include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein (in the case of
the Prospectus, in light of the circumstances under which they were
made) not misleading, except that the foregoing representations do not
apply to statements in or omissions from any of such documents based
upon written information furnished to the Company by any Underwriter
specifically for use therein.
(c) Each document filed by the Company pursuant to the
Exchange Act which is incorporated by reference in the Prospectus
complied when so filed in all material respects with the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations thereunder, and each document, if any, hereafter filed
and so incorporated by reference in the Prospectus (other than
documents incorporated by reference therein relating solely to
securities other than the Registered Securities) will comply when so
filed in all material respects with the Exchange Act and the rules and
regulations thereunder.
3. Purchase and Offering of Securities. The obligation of
the Company to issue and sell any Securities and the obligation of the
Underwriters to purchase the Securities will be set forth in a Terms Agreement
(the "Terms Agreement") which shall be in the form of an executed writing
(which may be handwritten), and may be evidenced by an exchange of telegraphic
or any other rapid transmission device designed to produce a written record of
communications transmitted at the time the Company determines to sell the
Securities. The Terms Agreement will incorporate by reference the provisions
of this Agreement, except as otherwise provided therein, and will specify the
firm or firms which will be Underwriters, the names of any Representatives, the
aggregate principal amount of the Securities, the principal amount of
Securities to be purchased by each Underwriter, the initial public offering
price of the Securities, the purchase price to be paid by the Underwriters and
the terms of the Securities not already specified in the Indenture, including,
but not limited to, dates of payment and rate of interest, if any, maturity,
any redemption or repayment provisions and any sinking fund requirements and
whether any of the Securities may be sold to institutional investors pursuant
to Delayed Delivery Contracts (as defined below). The Terms Agreement will
also specify the time and date of delivery and payment (such time and date, or
such other time not later than seven full business days thereafter as the
Representatives and the Company agree as the time for payment and delivery,
being herein and in the Terms Agreement referred to as the "Closing Date"), the
place of delivery and payment and any details of the terms of offering that
should be reflected in the prospectus supplement
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relating to the offering of the Securities. The obligations of the Underwriters
to purchase the Securities will be several and not joint. It is understood
that the Underwriters propose to offer the Securities for sale as set forth in
the Prospectus. The Securities delivered to the Underwriters on the Closing
Date will be in definitive fully registered form, in such denominations and
registered in such names as the Underwriters may request.
If the Terms Agreement provides for sales of Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Securities pursuant to delayed delivery contracts
substantially in the form of Annex II attached hereto ("Delayed Delivery
Contracts") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. On the Closing Date,
the Company will pay, as compensation, to the Representatives for the accounts
of the Underwriters, the fee set forth in such Terms Agreement in respect of
the principal amount of Securities to be sold pursuant to Delayed Delivery
Contracts ("Contract Securities"). The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed
Delivery Contracts. If the Company executes and delivers Delayed Delivery
Contracts, the Contract Securities will be deducted from the Securities to be
purchased by the several Underwriters and the aggregate principal amount of
Securities to be purchased by each Underwriter will be reduced pro rata in
proportion to the principal amount of Securities set forth opposite each
Underwriter's name in such Terms Agreement, except to the extent that the
Representatives determine that such reduction shall be otherwise than pro rata
and shall so advise the Company. The Company will advise the Representatives
not later than 5:00 p.m., New York time, on the business day prior to the
Closing Date of the principal amount of Contract Securities.
4. Certain Agreements of the Company. The Company agrees
with the several Underwriters that it will furnish to _____________________,
counsel for the Underwriters ("Underwriter's Counsel"), one signed copy of the
registration statement relating to the Registered Securities, including all
exhibits, in the form it became effective and of all amendments thereto and
that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the
Commission pursuant to and in accordance with Rule 424(b).
(b) During the time when a prospectus relating to the
Registered Securities is required to be delivered under the Act, (i)
the Company will advise the Representatives promptly of any proposal
to amend or supplement the Registration Statement or the Prospectus
and will afford the Representatives a reasonable opportunity to
comment on any such proposed amendment or supplement, and (ii) the
Company will also advise the Representatives promptly of the filing of
any such amendment or supplement and of the institution by the
Commission of any stop order proceedings in respect of the
Registration Statement or of any part thereof and will use its best
efforts to prevent the issuance of any such stop order and to obtain
as soon as possible its lifting, if issued.
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(c) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
or if it is necessary at any time to amend the Prospectus to comply
with the Act, the Company promptly will prepare and file with the
Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance. Neither the Representatives' consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5.
(d) The Company will make generally available to its
security holders as soon as practicable, but in any event not later
than eighteen months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act), an earning
statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the Rules and
Regulations (including, at the option of the Company, Rule 158 under
the Act).
(e) The Company will furnish to the Representatives
copies of the Registration Statement, including all exhibits, any
related prospectus, any related preliminary prospectus supplement and
the Prospectus and, during the time when a prospectus relating to the
Registered Securities is required to be delivered under the Act, all
amendments and supplements to such documents (other than those solely
relating to securities other than the Securities), in each case as
soon as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the
Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as the Representatives
designate and will continue such qualifications in effect so long as
required for the distribution; provided, however, that in no event
shall the Company be required to qualify as a foreign corporation or
as a dealer in securities or to file a general or unlimited consent
for service of process in any such jurisdiction.
(g) The Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's
counsel and accountants in connection with the registration of the
Registered Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the
Registration Statement, any preliminary prospectus supplement and the
Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the
cost of printing any Agreement among Underwriters, this Agreement, any
Terms Agreement, any Indenture, any Delayed Delivery Contracts, any
Blue Sky and Legal Investment Memoranda and any other documents in
connection with the offering, purchase, sale and delivery of the
Securities; (iii) all expenses in connection with the qualification of
the Securities for offering and sale under state securities laws as
provided in Section 4(f), including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky
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and legal investment surveys; (iv) any fees charged by securities
rating services for rating the Securities; (v) any filing fees
incident to any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Securities;
(vi) the cost of preparing the Securities; (vii) the fees and expenses
of any Trustee and any agent of any Trustee and the fees and
disbursements of counsel for any Trustee in connection with any
Indenture and the Securities; and (viii) all other costs and expenses
incident to the performance of its obligations hereunder and under any
Delayed Delivery Contracts which are not otherwise specifically
provided for in this Section; provided, however, that, except as
provided in this Section, Section 6 and Section 8 hereof, the
Underwriters will pay all of their own costs and expenses, including
the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any
offers they may make.
(h) For a period beginning at the time of execution of
the Terms Agreement and ending the earlier of (i) the termination of
trading restrictions for the Securities, as notified to the Company by
the Representatives, and (ii) the Closing Date, without the prior
consent of the Representatives, the Company will not offer, sell,
contract to sell or otherwise dispose of any securities substantially
similar to the Securities.
5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Securities
will be subject to the accuracy of the representations and warranties on the
part of the Company herein, to the accuracy of the written statements of
Company officers made pursuant to the provisions hereof, to the performance by
the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives shall have received a letter,
dated the Closing Date, of Xxxxxx Xxxxxxxx & Co., confirming that they
are independent public accountants within the meaning of the Act and
the applicable published Rules and Regulations thereunder and stating
in effect that:
(i) in their opinion, the financial statements
and schedules audited by them and included in the Prospectus
comply in form in all material respects with the applicable
accounting requirements of the Act and the related published
Rules and Regulations;
(ii) they have read the unaudited financial
statements included in the Prospectus;
(iii) on the basis of the reading referred to in
(ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials of
the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements,
if any, included or incorporated by reference in the
Prospectus do not comply in form in all
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material respects with the applicable accounting
requirements of the Act and the related published
Rules and Regulations and the Exchange Act and the
related published rules and regulations thereunder,
as applicable, or are not in conformity with
generally accepted accounting principles applied on a
basis substantially consistent with that of the
audited financial statements included or incorporated
by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year; or
(B) the unaudited capsule information,
if any, included in the Prospectus does not agree
with the amounts set forth in the unaudited
consolidated financial statements from which it was
derived or was not determined on a basis
substantially consistent with that of the audited
financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K
for the most recent fiscal year; or
(C) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than five days
prior to the Closing Date, there was any material
change in the consolidated capital stock (other than
issuances of capital stock upon exercise of options
and director stock grants) or any material increase
in consolidated long- term debt of the Company and
its subsidiaries or, at the date of the latest
available balance sheet read by such accountants,
there was any material decrease in consolidated net
current assets or net assets, as compared with
amounts shown on the latest balance sheet included or
incorporated by reference in the Prospectus; or
(D) for the period from the date of the
latest income statement included or incorporated by
reference in the Prospectus to the closing date of
the latest available income statement read by such
accountants there were any decreases, as compared
with the corresponding period of the previous year
and with the period of corresponding length ended the
date of the latest income statement included in the
Prospectus, in consolidated sales, net income or in
the ratio of earnings to fixed charges;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(iv) they have carried out specified procedures,
as requested by the Underwriters, for the purpose of comparing
specified dollar amounts (or percentages derived from such
dollar amounts) and other financial information included in
the Prospectus (in each case to the extent that such dollar
amounts, percentages and other financial information are
derived from the general accounting records of the Company and
its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such
records by analysis or computation) with the results obtained
from inquiries, a reading of such
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general accounting records and other procedures specified in
such letter and have found such dollar amounts, percentages
and other financial information to be in agreement with such
results, except as otherwise specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included
in the Prospectus for purposes of this subsection.
(b) The Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and Section
4(a). No stop order suspending the effectiveness of the Registration
Statement or of any part thereof shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or any Underwriter, shall be threatened by
the Commission.
(c) Subsequent to the execution of the Terms Agreement,
there shall not have occurred (i) any downgrading in the rating of any
senior debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (ii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange, Inc.,
or any setting of minimum prices for trading on such exchange; (iii)
any general banking moratorium declared by Federal or New York
authorities; or (iv) any outbreak or material escalation of major
hostilities in which the United States is involved, any declaration of
war by Congress or any other substantial national or international
calamity or emergency if, in the reasonable judgment of a majority in
interest of the Underwriters, including any Representatives, the
effect of any such outbreak, escalation, declaration, calamity or
emergency is so material and adverse so as to make it impractical or
inadvisable to proceed with completion of the sale of and payment for
the Securities.
(d) The Representatives shall have received an opinion,
dated the Closing Date, of White & Case, counsel for the Company, to
the effect that:
(i) The Company has been duly incorporated and is
an existing corporation in good standing under the laws of the
State of Delaware, with corporate power and authority to own
its properties and conduct its business as described in the
Prospectus;
(ii) The Indenture has been duly authorized,
executed and delivered by the Company and has been duly
qualified under the Trust Indenture Act; the Securities have
been duly authorized; the Securities other than any Contract
Securities have been duly executed, authenticated, issued and
delivered; the Indenture and the Securities other than any
Contract Securities constitute, and any Contract Securities,
when executed, authenticated, issued and delivered in the
manner provided in the Indenture and sold pursuant to Delayed
Delivery Contracts, will constitute, valid and legally binding
obligations of the Company
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enforceable in accordance with their terms, except as the
enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally, or
by general equitable principles (regardless of whether the
issue of enforceability is considered in a proceeding in
equity or at law); and the Securities other than any Contract
Securities conform, and any Contract Securities, when issued
and delivered in the manner provided for in the Indenture and
sold pursuant to Delayed Delivery Contracts, will conform, in
all material respects to the description thereof contained in
the Prospectus;
(iii) No consent, approval, authorization or order
of, or filing with, any New York State or Federal governmental
agency or body or any New York State or Federal court having
jurisdiction over the Company or any of its material
properties is required to be obtained or made by the Company
for the consummation of the transactions contemplated by the
Terms Agreement (including the provisions of this Agreement)
in connection with the issuance or sale of the Securities by
the Company, except such as have been obtained and made under
the Act and the Trust Indenture Act and such as may be
required under state securities or Blue Sky laws (as to which
such counsel need express no opinion);
(iv) The execution, delivery and performance of
the Indenture, the Terms Agreement (including the provisions
of this Agreement) and any Delayed Delivery Contracts and the
issuance and sale of the Securities and compliance with the
terms and provisions thereof will not result in a breach or
violation of any of the terms and provisions of, or constitute
a default under, the Restated Certificate of Incorporation or
By-Laws of the Company or any statute, rule, regulation or
order applicable to the Company or any of its subsidiaries of
which such counsel is aware of any federal or New York State
governmental agency or body or court having jurisdiction over
the Company or any of its material properties (other than
those that may be required under the Act and under applicable
state securities or Blue Sky laws as to which such counsel
need express no opinion) and the Company has full corporate
power and authority to authorize, issue and sell the
Securities as contemplated by the Terms Agreement (including
the provisions of this Agreement);
(v) The registration statement relating to the
Registered Securities, as of its effective date, the
Registration Statement and the Prospectus, as of the date of
the Terms Agreement, and any amendment or supplement thereto,
as of its date, appeared on their face to comply as to form in
all material respects with the requirements of the Act, the
Trust Indenture Act and the Rules and Regulations thereunder;
nothing has come to such counsel's attention which causes it
to believe that such registration statement, as of its
effective date, the Registration Statement or the Prospectus,
as of the date of the Terms Agreement, or any such amendment
or supplement, as of its date, contained any untrue statement
of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of
the
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circumstances under which they were made) not misleading; it
being understood that such counsel need express no opinion as
to the financial statements and schedules or other financial
or statistical data contained in any of the above-mentioned
documents; and
(vi) The Terms Agreement (including the provisions
of this Agreement) and any Delayed Delivery Contracts have
been duly authorized, executed and delivered by the Company.
(e) The Representatives shall have received an opinion,
dated the Closing Date, from Xxx X. Xxxxxx, Esq., Vice President and
General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is
an existing corporation in good standing in its state of
incorporation and has been duly qualified to do business and
is in good standing as a foreign corporation in all
jurisdictions in which its ownership of property or the
conduct of its business requires such qualification (except
where the failure to so qualify would not have a material
adverse effect upon the Company and its subsidiaries taken as
a whole), and has all power and authority necessary to own its
properties and conduct the businesses in which it is engaged
as described in the Prospectus;
(ii) The execution, delivery and performance of
the Indenture, the Terms Agreement (including the provisions
of this Agreement) and any Delayed Delivery Contracts and the
issuance and sale of the Securities and compliance with the
terms and provisions thereof will not result in a breach or
violation of any of the terms and provisions of, or constitute
a default under any order, rule or regulation applicable to
the Company or any of its subsidiaries of which such counsel
is aware of any court or governmental agency or body having
jurisdiction over the Company or any of its material
properties or, any material agreement or instrument to which
the Company or any material subsidiary is a party or by which
the Company or any such subsidiary is bound or to which any of
the properties of the Company or any such subsidiary is
subject, or the Restated Certificate of Incorporation or
By-Laws of the Company or any such subsidiary;
(iii) Such counsel is not aware of any consent,
approval, authorization or order of, or filing with, any
governmental agency or body or any court having jurisdiction
over the Company or any of its material properties that is
required to be obtained or made by the Company for the
consummation of the transactions contemplated by the Terms
Agreement (including the provisions of this Agreement) in
connection with the issuance or sale of the Securities by the
Company, except such as may be required under the Act, the
Trust Indenture Act and under state securities or Blue Sky
laws (as to which such counsel need express no opinion);
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(iv) The documents incorporated by reference in
the Prospectus (other than the financial statements and
related schedules and other financial and statistical data
contained therein, as to which such counsel needs express no
opinion), when they were filed with the Commission complied as
to form in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission
thereunder; and nothing has come to such counsel's attention
which causes it to believe that any of such documents, when
such documents were so filed contained an untrue statement of
a material fact and omitted to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made when such documents
were so filed, not misleading;
(v) Nothing has come to such counsel's attention
which causes it to believe that the registration statement
relating to the Registered Securities, as of its effective
date, the Registration Statement or the Prospectus, as of the
date of the Terms Agreement, or any such amendment or
supplement, as of its date, contained any untrue statement of
a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading; it
being understood that such counsel need express no opinion as
to the financial statements and schedules or other financial
or statistical data contained in any of the above-mentioned
documents; and
(vi) The statements contained in the Company's
Annual Reports on Form 10-K under the heading "Item 3. Legal
Proceedings", and the statements contained in the Company's
Quarterly Reports on Form 10-Q under the heading "Item 1.
Legal Proceedings", in each case, which are incorporated or
deemed to be incorporated by reference in the Prospectus,
insofar as such statements constitute a summary of the legal
documents, matters or proceedings referred to therein, fairly
present the information called for with respect to such legal
documents, matters and proceedings.
(f) The Representatives shall have received from
Underwriter's Counsel, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the incorporation of
the Company, the validity of the Securities, the Registration
Statement, the Prospectus and other related matters as they may
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass
upon such matters.
(g) The Representatives shall have received a
certificate, dated the Closing Date, of the Chairman of the Board of
Directors, President and Chief Executive Officer, the Executive Vice
President, any Senior Vice President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to their knowledge, shall state that the representations and
warranties of the Company in this Agreement are true and correct at
and as of the Closing Date, that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
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satisfied hereunder at or prior to the Closing Date, that no stop
order suspending the effectiveness of the Registration Statement or of
any part thereof has been issued and no proceedings for that purpose
have been instituted by the Commission and that, subsequent to the
date of the most recent financial statements in the Prospectus, there
has been no material adverse change in the financial position or
results of operation of the Company and its subsidiaries taken as a
whole except as set forth in or contemplated by the Prospectus or as
described in such certificate.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as they reasonably request.
6. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter specifically for use therein; and provided,
further, that the Company shall not be liable to any Underwriter under the
indemnity agreement in this subsection (a) with respect to any preliminary
prospectus or preliminary prospectus supplement to the extent that any such
loss, claim, damage or liability of such Underwriter results from the fact that
such Underwriter sold designated securities to a person to whom there was not
sent or given, at or prior to the written confirmation of such sale, a copy of
the Prospectus as then amended or supplemented in any case where such delivery
is required by the Act if the Company has previously furnished copies thereof
to such Underwriter and the loss, claim, damage or liability results from an
untrue statement or omission of a material fact contained in the preliminary
prospectus which was corrected in the Prospectus (as then amended, supplemented
or modified).
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
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statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses
are incurred.
(c) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the indemnifying
party of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under subsection (a) or (b) above. In
case any such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein, and to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement.
(d) If the indemnification provided for in this Section
is unavailable (other than as a result of the provisos contained in subsection
(a)) or insufficient to hold harmless an indemnified party under subsection (a)
or (b) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to in subsection (a) or
(b) above in such proportion as is appropriate to reflect the relative fault of
the Company on the one hand and of the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations,
including relative benefit. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
Company and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding the
-12-
13
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section
shall be in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company, to each officer of the
Company who has signed the Registration Statement and to each person, if any,
who controls the Company within the meaning of the Act.
7. Default of Underwriters. (a) If any Underwriter shall
default in its obligation to purchase the Securities which it has agreed to
purchase under the Terms Agreement relating to such Securities, the
Representatives may in their discretion arrange for themselves or another party
or other parties to purchase such Securities on the terms contained herein. If
within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory to the Representatives
to purchase such Securities on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company that they
have so arranged for the purchase of such Securities, or the Company notifies
the Representatives that it has so arranged for the purchase of such
Securities, the Representatives or the Company shall have the right to postpone
the Closing Date for such Securities for a period of not more than seven days,
in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the reasonable opinion of the Representatives may thereby be made necessary.
The term "Underwriter" as used in this Agreement shall include any person
substituted under this section with like effect as if such person had
originally been a party to the Terms Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Securities which remains unpurchased does
not exceed one-tenth of the aggregate principal amount of the Securities, then
the Company shall have the right to require each non-defaulting Underwriter
-13-
14
to purchase the principal amount of Securities which such Underwriter agreed to
purchase under the Terms Agreement relating to such Securities and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the principal amount of Securities which such Underwriter
agreed to purchase under such Terms Agreement) of the Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Securities which remains unpurchased exceeds
one-tenth of the aggregate principal amount of the Securities, as referred to
in subsection (b) above, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Securities of a defaulting Underwriter or Underwriters, then the Terms
Agreement relating to such Securities shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company, except
for the expenses to be borne by the Company and the Underwriters as provided in
Section 4(g) and the indemnity and contribution agreements in Section 6; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results
thereof, made by or on behalf of any Underwriter, the Company or any of their
respective representatives, officers or directors or any controlling person and
will survive delivery of and payment for the Securities. If the Terms
Agreement is terminated pursuant to Section 7 or if for any reason the purchase
of the Securities by the Underwriters under the Terms Agreement is not
consummated, the Company shall remain responsible for the expenses to be paid
or reimbursed by it pursuant to Section 4(g) and the respective obligations of
the Company and the Underwriters pursuant to Section 6 shall remain in effect.
If the purchase of the Securities by the Underwriters is not consummated for
any reason, other than solely because of the termination of this Agreement
pursuant to Section 7 or the occurrence of any event specified in clause (ii),
(iii) or (iv) of Section 5(c), the Company will reimburse the Underwriters for
all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Securities,
but the Company shall be under no further liability to any Underwriter except
as provided in Section 6.
9. Notices. All statements, requests, notices and agreements
hereunder shall be in writing and if to the Underwriters shall be sufficient in
all respects, if delivered or sent by first class mail, telex, or facsimile
transmission (confirmed in writing by overnight courier sent on the day of such
facsimile transmission) to the address of the Representatives as set forth in
the Terms Agreement; and if to the Company shall be sufficient in all respects
if delivered or sent by first class mail, telex, or facsimile transmission
(confirmed in writing by overnight courier sent on the day of such facsimile
transmission) to the address of the Company set forth in the Registration
Statement, Attention: Secretary.
10. Successors. This Agreement will inure to the benefit of
and be binding upon the Company and such Underwriters as are identified in
Terms Agreements and their respective
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15
successors and the officers and directors and controlling persons referred to
in Section 6, and no other person will acquire or have any right or obligation
hereunder or by virtue of this Agreement. No purchaser of any of the
Registered Securities from any Underwriter shall be deemed a successor or
assign by reason merely of such purchase.
11. Representatives. In all dealings under any Terms
Agreement and hereunder, the Representatives, if any, shall act on behalf of
each of the Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
underwriter made or given by the Representatives.
12. Time of Essence. Time shall be of the essence of each
Terms Agreement. As used herein the term "business day" shall mean any day
when the Commission's office in Washington, D.C. is open for business.
13. GOVERNING LAW. THIS AGREEMENT AND EACH TERMS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
14. Counterparts. This Agreement and each Terms
Agreement may be executed by any one or more of the parties hereto and thereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such respective counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding,
please sign and return three counterparts hereof.
Very truly yours,
NEWMONT GOLD COMPANY
By
-------------------------------
Name:
Title:
Accepted as of the date hereof:
[Names of Underwriters]
By: [Representatives]
By:
------------------------
Name:
Title:
On behalf of each of the Underwriters
-15-
16
ANNEX I
NEWMONT GOLD COMPANY
DEBT SECURITIES
TERMS AGREEMENT
_________, ____
[Names and Addresses of
Representatives]
Dear Sirs:
Newmont Gold Company, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated _________ __, ____ (the "Underwriting
Agreement"), between the Company on the one hand and __________________, on the
other hand, to issue and sell to the Underwriters named in Schedule I hereto
(the "Underwriters") the Securities specified in Schedule II hereto (the
"Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Terms
Agreement, except that, if this Terms Agreement and the Underwriting Agreement
are dated different dates, each representation and warranty with respect to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation and warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined) and also a representation and
warranty as of the date of this Terms Agreement in relation to the Prospectus
as amended or supplemented relating to the Securities which are the subject of
the Terms Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall be
deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives
designated to act on behalf of each of the Underwriters of Securities are set
forth in Schedule II hereto.
Subject to the terms and conditions set forth herein and in
the Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at a purchase price to the Underwriters set forth in Schedule II
hereto, the principal amount of Securities set forth opposite the name of such
Underwriter in Schedule I hereto, less the principal amount of Securities
covered by Delayed Delivery Contracts, if any, as may be specified in such
Schedule II.
17
ANNEX I
Page 2
If the foregoing is in accordance with your understanding,
please sign and return to us _______ counterparts hereof, and upon acceptance
hereof by you, on behalf of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of
which shall be supplied to the Company upon request.
Very truly yours,
NEWMONT GOLD COMPANY
By
-------------------------
Name:
Title:
Accepted as of the date hereof:
By:
--------------------------------
On behalf of each of the Underwriters
18
SCHEDULE I
Principal Amount of
Designated Securities
Underwriter to be Purchased
----------- ---------------------
----------------
Total......................... $
================
19
SCHEDULE II
TITLE OF SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
AGGREGATE PRINCIPAL AMOUNT:
$____________
PRICE TO PUBLIC:
_____% of the principal amount of the Securities, plus accrued
interest [, if any,] from _________ to __________ [and accrued
amortization, if any, from __________ to ____________]
PURCHASE PRICE BY UNDERWRITERS:
_____% of the principal amount of the Securities, plus accrued
interest [,if any,] from _________ to __________ [and accrued
amortization, if any, from __________ to ____________]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[New York] Clearing House funds
INDENTURE:
Indenture, dated as of __________, ____, [, as supplemented by
________,] between the Company and ___________________, as
Trustee
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates]
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the
Company, in the amount of $ _____ or an integral multiple
thereof, __________]
[on or after _________, _________ at the following redemption
prices (expressed in percentages of principal amount): If
[redeemed on or before _________, ___ %, and if] redeemed
during the 12-month period beginning ___________,
20
SCHEDULE II
Page 2
Redemption
Year Price
---- -----
and thereafter at 100% of principal amount, together in each
case with accrued interest to the redemption date]
[on any interest payment date falling on or after
____________, ___________, at the election of the Company, at
a redemption price equal to the principal amount thereof, plus
accrued interest to the date of redemption].
[Other possible redemption provisions, such as mandatory
redemption upon occurrence of certain events or redemption for
changes in tax law]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Securities are entitled to the benefit of a sinking fund
to retire $ _______ principal amount of Securities on ______
in each of the years _____ through ____ at 100% of their
principal amount plus accrued interest] [, together with
[cumulative] [non-cumulative] redemptions at the option of the
Company to retire an additional $ _________ principal amount
of Securities in the years ____ through ____ at 100% of their
principal amount plus accrued interest.]
[If Securities are extendable debt Securities, insert --
EXTENDABLE PROVISIONS:
Securities are repayable on ______, _____ [insert date and
years], at the option of the holder, at their principal amount
with accrued interest. Initial annual interest rate will be
___%, and thereafter annual interest rate will be adjusted on
______, and _______ to a rate not less than ___ % of the
effective annual interest rate on U.S. Treasury obligations
with _________-year maturities as of the [insert date 15 days
prior to maturity date] prior to such [insert maturity date].]
[If Securities are Floating Rate debt Securities, insert --
FLOATING RATE PROVISIONS:
Initial annual interest rate will be __% through ____________
[and thereafter will be adjusted [monthly] [on each _____,
________, and ___________] [to an annual rate of ______ %
above the average rate for ______ -year [month] [securities]
[certificates of deposit] issued by _________ and
___________________ [insert names of banks].] [and the annual
interest rate [thereafter] [from ______________ through
____________] will be the interest yield equivalent of the
weekly average per annum market discount rate for _____-month
Treasury bills plus ___% of Interest Differential (the excess,
if any, of (i)
21
SCHEDULE II
Page 3
then current weekly average per annum secondary market yield
for ______-month certificates of deposit over (ii) then
current interest yield equivalent of the weekly average per
annum market discount rate for ______-month Treasury bills);
[from _________ and thereafter the rate will be the then
current interest yield equivalent plus ____ % of Interest
Differential].]
CLOSING DATE:
[Time and date], ____
CLOSING LOCATION:
DELAYED DELIVERY:
[None] [Underwriters' commission shall be ___ % of the principal
amount of Securities for which Delayed Delivery Contracts have been
entered into. Such commission shall be payable to the order of
_______________________________________.]
NAMES AND ADDRESSES OF REPRESENTATIVES:
ADDRESS FOR NOTICES, ETC.:
[OTHER TERMS](1)
-------------------------
(1) A description of particular tax, accounting or other unusual features of
the Securities should be set forth, or referenced to an attached and
accompanying description, if necessary to the issuer's understanding of
the transaction contemplated. Such a description might appropriately be
in the form in which such features will be described in the Prospectus for
the offering.
22
ANNEX II
(Three copies of this Delayed Delivery Contract
should be signed and returned to the address
shown below so as to arrive not later than
9:00 A.M., New York time, on
__________ ____, ____*.)
DELAYED DELIVERY CONTRACT
[Insert date of initial
public offering]
NEWMONT GOLD COMPANY
c/o [Name and Address of Representative]
Gentlemen:
The undersigned hereby agrees to purchase from Newmont Gold
Company, a Delaware corporation (the "Company"), and the Company agrees to sell
to the undersigned, [If one delayed closing, insert--as of the date hereof, for
delivery on ______________, ____ ("Delivery Date"),]
$
principal amount of the Company's [Insert title of securities] ("Securities"),
offered by the Company's Prospectus dated _________, ____ and a Prospectus
Supplement dated __________, __ relating thereto, receipt of copies of which
is hereby acknowledged, at ___% of the principal amount thereof plus accrued
interest, if any, and on the further terms and conditions set forth in this
Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
--------------------
* Insert date which is third full business day prior to Closing Date
under the Terms Agreement.
23
ANNEX II
Page 2
[The undersigned will purchase from the Company as of the date
hereof, for delivery on the dates set forth below, Securities in the principal
amounts set forth below:
Delivery Date Principal Amount
------------- ----------------
------------- ----------------
------------- ----------------
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to
purchase for delivery on [the] [each] Delivery Date shall be made to the
Company or its order by certified or official bank check in [New York] Clearing
House (next day) funds at the office of ____________________ at ______.M. on
[the] [such] Delivery Date upon delivery to the undersigned of the Securities
to be purchased by the undersigned [for delivery on such Delivery Date] in
definitive fully registered form and in such denominations and registered in
such names as the undersigned may designate by written or telegraphic
communication addressed to the Company not less than five full business days
prior to [the] [such] Delivery Date.
It is expressly agreed that the provisions for delayed
delivery and payment are for the sole convenience of the undersigned; that the
purchase hereunder of Securities is to be regarded in all respects as a
purchase as of the date of this Contract; that the obligation of the Company to
make delivery of and accept payment for, and the obligation of the undersigned
to take delivery of and make payment for, Securities on [the] [each] Delivery
Date shall be subject only to the conditions that (1) investment in the
Securities shall not at [the] [such] Delivery Date be prohibited under the laws
of any jurisdiction in the United States to which the undersigned is subject
and (2) the Company shall have sold to the Underwriters the total principal
amount of the Securities less the principal amount thereof covered by this and
other similar Contracts. The undersigned represents that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the sale to the Underwriters the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by [a copy] [copies] of the opinion[s] of
counsel for the Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is
in the Company's sole discretion and, without limiting the foregoing, need not
be on a first-come, first-served basis. If this Contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its
24
ANNEX II
Page 3
address set forth below. This will become a binding contract between the
Company and the undersigned when such counterpart is so mailed or delivered.
Yours very truly,
---------------------------------------------
(Name of Purchaser)
By
-------------------------------------------
---------------------------------------------
(Title of Signatory)
---------------------------------------------
---------------------------------------------
(Address of Purchaser)
Accepted, as of the above date.
NEWMONT GOLD COMPANY
BY
---------------------
[Insert Title]
