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NEWMONT MINING CORPORATION
Standby Agreement
New York, New York
November 13, 1995
Salomon Brothers Inc
As Representative of the
several Purchasers
c/o Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Newmont Mining Corporation, a Delaware corporation (the
"Company"), intends to call for redemption on December 14, 1995 (the
"Redemption Date"), all its outstanding Depositary Shares (the "Redeemable
Securities"), each representing ownership of one-half of a share of the
Company's $5.50 Convertible Preferred Stock, par value $5.00 (the "Convertible
Preferred Stock"), at $51.925 plus accrued and unpaid dividends to and
including the Redemption Date for a total redemption price of $52.605 per share
of Redeemable Securities. The Redeemable Securities representing one or more
whole shares of Convertible Preferred Stock are convertible into whole shares
of the Common Stock, $1.60 par value, of the Company ("Common Stock") at any
time prior to 5:00 P.M., New York City time, on December 4, 1995 (the
"Conversion Date").
In order to ensure that the Company will have available
sufficient funds to redeem any Redeemable Securities not converted prior to
5:00 P.M., New York City time, on the Conversion Date, the Company desires to
make arrangements pursuant to which the purchasers named in Schedule I hereto
(each a "Purchaser" and collectively the "Purchasers"), for whom you (the
"Representative") are acting as Representative, will following the Conversion
Date purchase whole shares of Common Stock that would have been issuable upon
the conversion of the Redeemable Securities that have not been surrendered for
conversion prior to 5:00 P.M., New York City time, on the Conversion Date.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Purchaser as set forth below
in this Section 1.
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(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"). A
registration statement including a prospectus, relating to the
Securities (as defined below) has been or will be filed with the
Securities and Exchange Commission (the "Commission") and has become
effective or will become effective within one business day of the date
hereof. Such registration statement, as amended at the Execution Time
(as defined below), is hereinafter referred to as the "Registration
Statement", and the prospectus included in such Registration
Statement, and as supplemented in the form used to confirm sales of
the Securities by certain selling stockholders, including all material
incorporated by the reference therein, is hereinafter referred to as
the "Prospectus".
(b) On the Effective Date (as defined below), the Registration
Statement did, and the Prospectus (and any supplements thereto) will,
as long as a Prospectus is required to be delivered in connection with
sales of the Securities, comply in all material respects with the
applicable requirements of the Act and the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the rules and regulations
thereunder; on the Effective Date, the Registration Statement did not
and (if applicable) will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not misleading;
and the Prospectus (together with any supplement thereto), as long as a
Prospectus is required to be delivered in connection with sales of the
Securities, will not include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or
omitted from the Registration Statement or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished to the Company by or on behalf of any Purchaser through the
Representative specifically for inclusion in the Registration Statement
or the Prospectus (or any supplement thereto). The term "Effective
Date" shall mean each date that the Registration Statement and any
post-effective amendment or amendments thereto became or
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become effective and each date after the date hereof on which a
document incorporated by reference in the Registration Statement is
filed with the Commission; provided that filing occurs during the time
when a Prospectus relating to the Securities is required to be
delivered under the Act.
(c) The Redeemable Securities representing one or more whole
shares of Convertible Preferred Stock are convertible into shares of
Common Stock at a conversion price of $36.395 per share of Common
Stock. At the Execution Time, there were outstanding 5,750,000 shares
of Redeemable Securities; the redemption of all the outstanding
Redeemable Securities had been duly authorized by the Company; by the
close of business on the business day following the Execution Time,
all the Redeemable Securities shall have been duly called for
redemption in accordance with the Certificate of Designations relating
to the Convertible Preferred Stock and the Deposit Agreement (the
"Deposit Agreement") dated as of November 15, 1992 between the
Company, Chemical Bank, as Depositary (the "Depositary"), and holders
of the Redeemable Securities; and the right to convert the Redeemable
Securities into shares of Common Stock will, as a result of such call,
expire at 5:00 P.M., New York City time, on the Conversion Date. A
copy of the form of notice of redemption and the related letter of
transmittal (collectively, the "Notice of Redemption") has been
heretofore delivered to you. The Redeemable Securities have been duly
and validly authorized and issued and are fully paid and
nonassessable. The term "Execution Time" shall mean the date and time
that this Agreement is executed and delivered by the parties hereto.
(d) The Company has neither taken nor will take, directly or
indirectly, any action designed to cause or result in, or that has
constituted or that might reasonably be expected to cause or result
in, stabilization or manipulation of the price of any security of the
Company to facilitate the conversion of the Redeemable Securities.
(e) Except as otherwise contemplated hereby, the Company has
neither paid nor given, nor will pay or give, directly or indirectly,
any commission or other remuneration for soliciting the conversion of
Redeemable Securities into Common Stock and cash.
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(f) The execution, delivery and performance of this Agreement,
the call of the Redeemable Securities for redemption, the conversion
and redemption thereof, the issuance and sale of the Securities and
compliance with the terms and provisions thereof, and the consummation
of the transactions contemplated by this Agreement 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 the terms of any material indenture or
other material agreement or instrument to which the Company or any of
its subsidiaries is a party or is bound or any statute, rule,
regulation, judgment, order or decree applicable to the Company or any
of its subsidiaries of any federal or New York State governmental
agency or body or court having jurisdiction over the Company or any of
its subsidiaries or material properties.
2. Purchase and Conversion of Redeemable Securities. Subject
to the terms and conditions and in reliance upon the representations and
warranties herein set forth:
(a) Each Purchaser agrees not to sell 0r otherwise dispose of
any Redeemable Securities owned by such Purchaser on the date hereof, except as
provided herein and except for any sale or other disposition to another
Purchaser. X.X.Xxxxxxx & Co. Inc. also agrees to cause Swiss Bank
Corporation, London branch to comply with this Subsection 2(a). Each Purchaser,
severally and not jointly, agrees to surrender for conversion into Common Stock
prior to 5:00 P.M., New York City time, on the Conversion Date all Redeemable
Securities owned by such Purchaser on the Conversion Date as set forth in
Section 4 hereof or otherwise held by such Purchaser on the Conversion Date.
The shares of Common Stock issued to the Purchasers upon the conversion of
Redeemable Securities are referred to as the "Conversion Securities".
(b) If any Redeemable Securities have not been surrendered for
conversion prior to 5:00 P.M., New York City time, on the Conversion Date, the
Company shall sell to each Purchaser, and each Purchaser, severally and not
jointly, shall purchase from the Company, at a purchase price of $38.29 per
share, such number of shares of Common Stock as shall equal the number of shares
of Common Stock that would have been issuable upon conversion of all Redeemable
Securities not surrendered for conversion multiplied by the percentage set forth
opposite such Purchaser's name in Schedule I hereto (rounded to the nearest
whole number of
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shares). The shares of Common Stock to be purchased pursuant to this Section
2(b) are referred to as the "Purchased Securities" and, together with the
Conversion Securities, the "Securities".
(c) It is understood that the Purchasers intend to resell the
Securities from time to time at prices prevailing in the open market. On or
prior to the tenth day after the Redemption Date, or if such day is not a
business day, the next succeeding business day, each Purchaser shall remit to
the Company 50% of the excess, if any, of the aggregate proceeds received by
such Purchaser from the sale of the Purchased Securities (net of selling
concessions, transfer taxes and other expenses of sale) over an amount equal to
$38.29 multiplied by the number of Securities sold by such Purchaser. Upon
completion of the sale of the Securities, each Purchaser shall furnish to the
Company a statement setting forth the aggregate proceeds received on the sale
thereof and the applicable selling concessions, transfer taxes and other
expenses of sale. For purposes of the foregoing determination, any Securities
not sold by or for the account of the Purchaser prior to the close of business
on the tenth day after the Redemption Date, or if such date is not a business
day, the next succeeding business day shall be deemed to have been sold on such
tenth day for an amount equal to the average of the high and low sale prices of
the Common Stock on such day as reported on the New York Stock Exchange.
Nothing contained herein shall limit the right of the Purchasers, in their
discretion, to determine the price or prices at which, or the time or times
when, any Securities shall be sold, whether or not prior to the Redemption Date
and whether or not for long or short account.
(d) Delivery of and payment for the Purchased Securities shall
be made at 10:00 A.M., New York City time, on December 8, 1995, or such later
date (not later than December 14, 1995) as the Representative and the Company
may agree, which date and time may be postponed by agreement between the
Representative and the Company or as provided in Section 9 hereof (such date and
time of delivery and payment for the Purchased Securities being herein called
the "Closing Date"). Delivery of the Purchased Securities shall be made to the
Representative for the respective accounts of the several Purchasers against
payment by the several Purchasers through the Representative of the purchase
price thereof to or upon the order of the Company by certified or official bank
check or checks drawn on or by a New York Clearing House bank and payable in
next day funds. Delivery
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of the Purchased Securities shall be made at such location as the Representative
shall reasonably designate at least one business day in advance of the Closing
Date and payment for the Purchased Securities shall be made at the office of
Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx. Certificates
for the Purchased Securities shall be registered in such names and in such
denominations as the Representative may request not less than three full
business days in advance of the Closing Date.
The Company agrees to have the Purchased Securities available
for inspection, checking and packaging by the Representative in New York, New
York, not later than 1:00 P.M. on the business day prior to the Closing Date.
3. Compensation. As compensation for the commitment of the
Purchasers hereunder, the Company will pay to the Representative for the
respective accounts of (A) each of the Representative and Xxxxxxx, Sachs & Co.,
an amount equal to the sum of (i) $1,421,606 plus (ii) if the aggregate number
of the Purchased Securities exceeds 1,974,859 shares, an additional $1.3402
per Purchased Security for the aggregate number of all such Purchased Securities
purchased by the Representative and Xxxxxxx, Xxxxx & Co., and if the aggregate
number of Purchased Securities exceeds 394,972 shares but is less than or equals
1,974,859 shares, an additional $0.9573 per Purchased Security for the aggregate
number of all such Purchased Securities purchased by the Representative and
Xxxxxxx, Sachs & Co., and (B) X.X. Xxxxxxx & Co. Inc. an amount equal to the sum
of (i) $1,310,699 plus (ii) if the aggregate number of the Purchased Securities
exceeds 1,974,859 shares, an additional $1.34 per Purchased Security for the
aggregate number of all such Purchased Securities purchased by X.X. Xxxxxxx &
Co. Inc. and if the aggregate number of Purchased Securities exceeds 394,972
shares but is less than or equals 1,974,859 shares, an additional $0.96 per
Purchased Security for the aggregate number of all such Purchased Securities
purchased by X.X. Xxxxxxx & Co. Inc.
Such compensation shall be paid to the Representative for the
respective accounts of the several Purchasers by certified or official bank
check or checks drawn on or by a New York Clearing House bank and payable in
next day funds on (A) if the Purchasers are required to purchase any Purchased
Securities, the Closing Date, or (B) otherwise, as soon as practicable after the
Redemption Date (but in no event later than two business days thereafter).
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4. Additional Purchases. The Purchasers may purchase
Redeemable Securities in such amounts and at such prices as the Purchaser may
deem advisable. All Redeemable Securities owned by the Purchasers on the
Conversion Date will be converted by the Purchasers into Common Stock in
accordance with Section 2(a) hereof. The Common Stock acquired by the
Purchasers upon conversion of any Redeemable Securities acquired pursuant to
this Section 4 may be sold at any time or from time to time by the Purchasers.
It is understood that, for the purpose of stabilizing the price of the Common
Stock or otherwise, the Purchasers may make purchases and sales of Common Stock,
in the open market or otherwise, for long or short account, on such terms as
they may deem advisable and they may overallot in arranging sales.
5. Certain Agreements of the Company. The Company agrees
with the several Purchasers that it will furnish to the Purchasers and counsel
for the Purchasers, without charge, one signed copy of the registration
statement relating to the Securities, including all exhibits, in the form it
became effective and of all amendments thereto and that:
(a) During the time when a prospectus relating to the
Securities is required to be delivered under the Act, (i) the Company
will advise the Purchasers promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus and will,
except in the case of a supplement relating only to sales of the
Securities by certain selling stockholders, afford the Purchasers a
reasonable opportunity to comment on any such proposed amendment or
supplement, (ii) the Company will advise the Purchasers promptly of the
filing of any such amendment or supplement and will provide evidence
satisfactory to the Purchasers of such filing, (iii) the Company will
advise the Purchasers promptly 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 and (iv) the Company will advise the Purchasers
promptly of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose.
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(b) 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 any 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 or supplement 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 effect such compliance. Neither the
Purchasers' consent to nor the Purchasers' delivery of any such
amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(c) 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).
(d) The Company will furnish to the Purchasers, without
charge, copies of the Registration Statement, including all exhibits,
any related prospectus relating to the Securities, any related
prospectus supplement and, during the time when a prospectus relating
to the Securities is required to be delivered under the Act, all
amendments and supplements to such documents, in each case as soon as
available and in such quantities as are reasonably requested.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Purchasers reasonably designate and will continue such qualifications
in effect so long as required for the distribution of the Securities;
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
take any action that would subject it to general or unlimited service
of process in any such jurisdiction.
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(f) 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 Securities under
the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, the Prospectus and
amendments and supplements thereto and the mailing and delivering of
copies thereof to the Purchasers and dealers in such quantities as are
agreed herein; (ii) the cost of printing any Agreement among
Purchasers, this Agreement, any Blue Sky Memorandum 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 5(f), including the reasonable
fees and disbursements of counsel for the Purchasers in connection with
such qualification and in connection with the Blue Sky survey; (iv) the
cost of preparing the Securities; (v) the fees and expenses in
connection with the listing, if any, of the Securities or any Common
Stock issuable upon conversion of Redeemable Securities; (vi) the fees
and expenses of any transfer agent relating to any Common Stock or any
Convertible Preferred Stock; (vii) the fees and expenses of the
Depositary relating to any Redeemable Securities; (viii) the cost of
preparing, printing and distributing the Notice of Redemption and
related documents; (ix) the cost of any advertising pursuant to Section
5(g) and (x) all other costs and expenses incident to the performance
of its obligations hereunder which are not otherwise specifically
provided for in this Section; provided, however, that, except as
provided in this Section, Section 7 and Section 10 hereof, the
Purchasers will pay all of their own costs and expenses, including the
fees of their counsel, and transfer taxes on resale of any of the
Securities by them.
(g) The Company will mail or cause to be mailed not later than
the business day following the date of execution hereof the Notice of
Redemption by first class mail to the registered holders of the
Redeemable Securities as of the close of business on the record date
selected by the Depositary, which mailing will conform to the
requirements of the Certificate of Designations of the Company creating
the Convertible
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Preferred Stock. The Company will not withdraw or revoke the Notice of
Redemption or attempt to do so.
(h) The Company will advise the Representative daily of the
amount of Redeemable Securities surrendered on the previous day for
conversion.
(i) The Company will not take any action the effect of which
would be to require an adjustment in the conversion price of the
Redeemable Securities.
(j) Until the Redemption Date, the Company will (i) notify you
promptly of any material change affecting any of its representations,
warranties, agreements or indemnities herein and will take such steps
as you may reasonably request to remedy and/or publicize the same to
the extent required by law and (ii) furnish you such other information
concerning the Company as you may reasonably request.
(k) The Company will not, prior to the Redemption Date and for
a period of 60 days following the Redemption Date, without the prior
written consent of the Representative, offer, sell or contract to sell,
or otherwise dispose of, directly or indirectly, or announce the
offering of, any other shares of Common Stock or any securities
convertible into, or exchangeable for, shares of Common Stock;
provided, however , that (x) the Company may issue and sell Common
Stock pursuant to any employee stock option plan, stock ownership plan
or dividend reinvestment plan of the Company in effect on the
Conversion Date and in connection with any bonuses paid in securities
of the Company; (y) the Company may issue Common Stock issuable upon
the conversion of securities or the exercise of warrants outstanding on
the Conversion Date; and (z) the Company may issue Common Stock in
connection with corporate acquisitions; and provided further that the
Company will no longer be bound by this provision if the Purchasers do
not purchase in excess of 394,972 Purchased Securities pursuant to this
Agreement.
(l) The Company has complied and, until the distribution of
the Securities is completed, will comply with all of the provisions of
Florida H.B. 1771, codified as Section 517.075 of the Florida statutes,
and all regulations promulgated thereunder relating to issuers doing
business with Cuba.
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6. Conditions to the Obligations of the Purchasers. The
obligations of the Purchasers hereunder to convert Redeemable Securities and to
purchase any Purchased 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:
(a) The Representative shall have received letters, dated the
date that is one day after the date of this Agreement and the Closing
Date, of Xxxxxx Xxxxxxxx & Co., in form and substance satisfactory to
the Representative, confirming that they are independent public
accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder and with respect to the financial and
other statistical and numerical information contained in the
Registration Statement and incorporated therein.
(b) The Registration Statement shall have become effective not
later than 12 noon on the date following the execution of this
Agreement. 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 Purchaser, shall be contemplated by
the Commission.
(c) Subsequent to the Execution Time, 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 in trading in securities
generally on the New York Stock Exchange or any setting of minimum
prices for trading on such Exchange; (iii) any suspension in trading in
the Common Stock of the Company on the New York Stock Exchange imposed
by the New York Stock Exchange or the Commission; (iv) any general
banking moratorium declared by Federal or New York authorities; and (v)
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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
which, in the reasonable judgment of the Representative, is so material
and adverse as to make it impractical or inadvisable to proceed with
the completion of the sale of and payment for the Securities.
(d) The Representative shall have received an opinion, dated
the date that is one day after the date of this Agreement and 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 shares of capital stock of the Company
outstanding on the date of this Agreement and the Closing Date,
as the case may be, have been duly authorized, are validly
issued, fully paid and non-assessable, and conform in all
material respects to the description thereof contained in the
Prospectus;
(iii) The outstanding Redeemable Securities have
been duly and validly issued and are fully paid and
nonassessable; assuming the mailing of the Notice of Redemption
in accordance with Section 5(g) hereof, all the Redeemable
Securities will have been duly called for redemption by the
close of business on the business day following the Execution
Time and the right to convert the Redeemable Securities into
shares of Common Stock will expire at 5:00 P.M., New York City
time, on December 4, 1995; the Securities have been duly and
validly authorized and, when issued and delivered upon
conversion of any Redeemable Securities or when issued
delivered and paid for by the Purchasers, as the case may be,
will be fully paid and nonassessable; and the holders of
outstanding shares of capital stock of the Company are not
entitled to preemptive or other rights to subscribe for the
Securities;
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(iv) The Securities conform in all material
respects to the description thereof contained in the
Prospectus;
(v) 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 this
Agreement, except such as have been obtained and made under
the Act and such as may be required under state securities or
Blue Sky laws (as to which such counsel need express no
opinion);
(vi) The execution, delivery and performance of
this Agreement, the call of the Redeemable Securities for
redemption, the conversion and redemption thereof, the
issuance and sale of the Securities 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 this Agreement;
(vii) The Registration Statement, as of its
effective date, and the Prospectus, as of its date, 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 and the Rules and Regulations
thereunder; nothing has come to such counsel's attention which
causes it to believe that the Registration Statement, as of its
effective date, or the Prospectus, as of its date, or any such
amendment or supplement, as of its
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date, contained or contains any untrue statement of a material
fact or omitted or omits to state any material fact required to
be stated therein or necessary to make the statements therein
(in the case of the Prospectus in the 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 or omitted from or incorporated
by reference in any of the above-mentioned documents; and
(viii) This Agreement has been duly authorized,
executed and delivered by the Company.
(e) The Representative shall have received an opinion, dated
the date that is one day after the date of this Agreement and the
Closing Date, from Xxxxxx X. Xxxxx, Xx., Esq., Senior Vice President
and General Counsel of the Company, to the effect that:
(i) The Company and Newmont Gold Company have
been duly incorporated and are existing corporations in good
standing in their state of incorporation and have been duly
qualified to do business and are in good standing as foreign
corporations in all jurisdictions in which their respective
ownership of property or the conduct of their respective
businesses 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
have all power and authority necessary to own their respective
properties and conduct the businesses in which they are
engaged as described in the Prospectus;
(ii) The execution, delivery and performance of
this Agreement, the call of the Redeemable Securities for
redemption, the conversion and redemption thereof and the
issuance and sale of the Securities and compliance with the
terms and provisions thereof, and the consummation of the
transactions contemplated by this Agreement 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
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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 this
Agreement, except such as may be required under the Act and
under state securities or Blue Sky laws (as to which such
counsel need express no opinion);
(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 or omitted therefrom, as to which such counsel need
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 such counsel to believe that
any of such documents, when such documents were so filed,
contained an untrue statement of a material fact or 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 such counsel to believe that the Registration
Statement, as of its effective date, or the Prospectus, as of
its date, or any such amendment or supplement, as of its date,
contained or contains any untrue statement of a material fact
or omitted or omits to state
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any material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus in
the 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 or omitted
from or incorporated by reference in any of the above-mentioned
documents; and
(vi) The statements contained in the Company's
Annual Reports on Form 10-K for the year ended December 31,
1994 under the heading "Item 3. Legal Proceedings", and the
statements contained in the Company's Quarterly Reports on Form
10-Q for the quarters ended March 31, 1995, June 30 and
September 30, 1995 under the heading "Item 1. Legal
Proceedings", in each case, which are 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 Representative shall have received from Xxxxx Xxxx &
Xxxxxxxx, counsel for the Purchasers, such opinion or opinions, dated
the date that is one day after the date of this Agreement and 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 Representative shall have received a certificate,
dated the date that is one day after the date of this Agreement and the
Closing Date, of the Chairman of the Board of Directors, President and
Chief Executive Officer, any Senior Vice President or the Treasurer 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 date of this Agreement or the Closing Date, as the case
may be, that the Company has complied with all agreements and satisfied
all
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conditions on its part to be performed or satisfied hereunder at or
prior to the date of this Agreement or the Closing Date, as the case
may be, 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
condition (financial or other), earnings, business or properties of the
Company and its subsidiaries, whether or not arising from transactions
in the ordinary course of business, except as set forth in or
contemplated by the Prospectus or as described in such certificate.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representative and counsel for the
Purchasers, this Agreement and all obligations of the Purchasers hereunder may
be canceled at, or at any time prior to, the Closing Date by the Representative.
Notice of such cancellation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing.
The Company will furnish the Purchasers, without charge, with
such conformed copies of such opinions, certificates, letters and documents as
they reasonably request.
7. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Purchaser against any losses, claims, damages
or liabilities, joint or several, to which such Purchaser 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 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 such Purchaser
for any legal or other expenses reasonably incurred by such Purchaser, in
connection with investigating or defending any such loss, claim, damage,
liability or
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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 information furnished to the Company by
any Purchaser specifically for inclusion therein; and provided further, that the
Company shall not be liable to any Purchaser under the indemnity agreement in
this subsection (a) to the extent that any such loss, claim, damage or liability
of such Purchaser results from the fact that such Purchaser sold 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 Purchaser and the loss,
claim, damage or liability results from an untrue statement or omission of a
material fact contained in the earlier prospectus which was corrected in the
Prospectus as then amended, supplemented or modified.
(b) Each Purchaser will severally 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 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, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with information furnished to the Company by such Purchaser
specifically for the use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company in connection with the investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred. The Company acknowledges that the statements set forth in the last
paragraph of the second cover page, in the first paragraph of the second page
and under the heading "Standby Arrangement" in the Prospectus constitute the
only information furnished by or on behalf of the several Purchasers for
inclusion in the Prospectus, and you, as the Representative, confirm that such
statements are correct.
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(c) Promptly after receipt by an indemnified party under this
Section 7 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 subsections (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 cost of investigation. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, which consent shall not be unreasonably withheld, 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 indemnity provided for in this Section is
unavailable (other than as a result of the provisos contained in subsection (a)
or (b)) 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 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 the Purchasers 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
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or the Purchasers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Company and the Purchasers 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 Purchasers 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 provisions of this subsection (d), no Purchaser shall be required to
contribute any amount in excess of the aggregate of (i) such Purchaser's total
compensation pursuant to Section 3 hereof and (ii) the net proceeds to such
Purchaser from the resale of Purchased Securities in accordance with Section
2(c) hereof. No person guilty of such 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 Purchasers'
obligations in the subsection (d) to contribute are several in proportion to
their respective purchase obligations and not joint.
8. Soliciting Conversions. The Purchasers may assist the
Company in soliciting conversion of the Redeemable Securities by the holders
thereof but shall not be entitled to compensation by the Company for any such
assistance.
9. Default by a Purchaser. If any one or more Purchasers
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Purchaser or Purchasers hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Purchasers shall be obligated severally to take up and
pay for (in the respective proportions which the percentage set forth opposite
their names in Schedule I hereto bears to the aggregate percentage set forth
opposite the names of all remaining Purchasers) the Securities which the
defaulting Purchaser or Purchasers agreed but failed to purchase; provided;
however, that in the event that the aggregate
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percentage which the defaulting Purchaser or Purchasers agreed but failed to
purchase shall exceed 10%, the remaining Purchasers shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Purchaser does not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Purchaser or the Company. In the event of a default by any Purchaser as set
forth in this Section 9, the Closing Date shall be postponed for such period,
not exceeding seven days, as the Representative shall determine in order that
the required changes in Registration Statement and the Prospectus or in any
other documents or arrangements may be effected. As used in this Agreement, the
term "Purchaser" includes any person substituted for a Purchaser under this
Section. Nothing contained in this Agreement shall relieve any defaulting
Purchaser of its liability, if any, to the Company and any nondefaulting
Purchaser for damages occasioned by its default hereunder.
10. 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 Purchasers set
forth in or made in writing 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 Purchaser, the Company or any of their
respective representatives, officers or directors or any controlling person and
will survive the conversion of any Redeemable Securities and the delivery of and
payment for the Securities. If for any reason the purchase of the Securities by
the Purchasers under this Agreement is not consummated, the Company shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
5(g) and the respective obligations of the Company and the Purchasers pursuant
to Section 7 shall remain in effect. If the purchase of the Securities by the
Purchasers is not consummated for any reason, other than solely because of the
termination of this Agreement pursuant to Section 9 or the occurrence of any
event specified in clause (ii), (iv) or (v) of Section 6(c), the Company will
reimburse the Purchasers for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) incurred by them in connection with the
offering of the Securities, but the Company shall be under no further liability
to any Purchaser except as provided in Section 7.
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11. Notices. All statements, requests, notices and agreements
hereunder shall be in writing and if to the Purchasers 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 Representative as set forth in
this 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.
12. Successors. This Agreement will inure to the benefit of
and be binding upon the Company and such Purchasers as are identified in this
Agreement and their respective successors and the officers and directors and
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder.
13. Time of Essence. Time shall be of the essence of this
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.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
15. Counterparts. This Agreement may be executed by any ne 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.
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If the foregoing is in accordance with your understanding,
please sign and return three counterparts hereof.
Very truly yours,
NEWMONT MINING CORPORATION
By
-------------------------------------
Name:
Title:
Accepted as of the date hereof:
SALOMON BROTHERS INC
XXXXXXX, XXXXX & CO.
X.X. XXXXXXX & Co. INC.
By: SALOMON BROTHERS INC
By:
--------------------------
Name:
Title: Vice President
On behalf of each of the Purchasers
