NEWMONT MINING CORPORATION
Equity Securities
Underwriting Agreement
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Ladies and Gentlemen:
1. Introductory. Newmont Mining Corporation, a Delaware corporation
(the "Company"), proposes to issue and sell from time to time (i) shares of
common stock of the Company (the "Common Shares"), (ii) shares of a series of
preferred stock of the Company (the "Preferred Shares") which may be convertible
into Common Shares, (iii) depositary shares (the "Depositary Shares") which will
represent a fraction of a Preferred Share or (iv) warrants to purchase Common
Shares (the "Warrants") which may be sold separately or together with Common
Shares. The Common Shares, the Preferred Shares, the Depositary Shares and the
Warrants are hereinafter referred to as the "Securities". The Securities are
registered under the registration statement referred to in Section 2(a).
Particular issuances or series of the 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 the terms of offering determined at the
time of sale. Under such Terms Agreement, subject to the terms and conditions
hereof, the Company will agree to issue and sell, and the firm or firms
specified therein (the "Underwriters"), for whom you are acting as
representatives (the "Representatives") will agree to purchase, the amount of
Securities specified therein (the "Firm Securities"). In such Terms Agreement,
the Company also may grant to such Underwriters, subject to the terms and
conditions set forth therein, an option to purchase additional Securities in an
amount not to exceed the amount specified in such Terms Agreement (such
additional Securities are hereinafter referred to as the "Option Securities").
The Firm Securities and the Option Securities are hereinafter collectively
referred to as the "Offered Securities".
Each Common Share issued pursuant to a Terms Agreement referred to in
Section 3, upon conversion of Preferred Shares or Depositary Shares or upon
exercise of a Warrant will include one preferred share purchase right (the
"Junior Preferred Rights") entitling the holder thereof to purchase, under
certain circumstances, one one-thousandth of a share of Series A Junior
Participating Preferred Stock, par value $1.60 per share, of the Company,
subject to adjustment. The Junior Preferred Rights are to be issued pursuant to
a Rights Agreement dated as of February 13, 2002, between the Company and Mellon
Investor Services LLC, as rights agent.
Preferred Shares issued pursuant to the Terms Agreement referred to in
Section 3 will be issued in accordance with a Certificate of Designations as
specified in such Terms Agreement (the "Certificate of Designations").
Depositary Shares issued pursuant to the Terms
Agreement referred to in Section 3 will be issued under a Deposit Agreement (the
"Deposit Agreement") between the Company and a bank or trust company selected by
the Company as specified in such Terms Agreement (the "Depositary"). Warrants
issued pursuant to the Terms Agreement referred to in Section 3 will be issued
under a Warrant Agreement (the "Warrant Agreement") between a bank or trust
company selected by the Company as specified in such Terms Agreement (the
"Warrant Agent").
Any reference in this Agreement to the Registration Statement or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as
of the effective date of the Registration Statement or the date of such
preliminary prospectus or the Prospectus, as the case may be, and any reference
to "amend", "amendment" or "supplement" with respect to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to refer
to and include any documents filed after such date under the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Exchange Act") that are deemed to be incorporated
by reference therein.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) Registration Statement and Prospectus. (i) The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), a registration statement (File No. 333- ), including a prospectus,
relating to the Securities, and has been declared effective by the
Commission. 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 the Registration
Statement, as supplemented as contemplated by Section 3 to reflect the
terms of the Offered 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 under the
Securities Act (the "Rules and Regulations"), and including any prospectus
used to offer the Offered Securities[ in any other jurisdiction other than
Canada], is hereinafter referred to as the "Prospectus".
[(ii) Canadian Prospectus. The Company meets the requirements of the
securities legislation and the rules and regulations made thereunder, as
amended, in each of the provinces of Canada other than Quebec (the
"Qualifying Provinces") and the published policy statements of the
securities regulatory authority in each of the Qualifying Provinces (the
"Canadian Qualifying Authorities"), including National Instrument 71-101
The Multijurisdictional Disclosure System ("NI 71-101") and Companion
Policy 71-101CP (collectively, the "Canadian Securities Laws"), for use of
a Multijurisdictional Disclosure System ("MJDS") shelf prospectus with
respect to the Securities, has filed with the Canadian Qualifying
Authorities, designating the Ontario Securities Commission (the "OSC") as
the principal jurisdiction, a preliminary MJDS shelf prospectus, a final
MJDS shelf prospectus and an amended and restated final MJDS shelf
prospectus in respect of the Securities and has also filed with the
Canadian Qualifying Authorities a submission to jurisdiction and
appointment of agent for service of process
on Form 71-101F1, and has been issued a preliminary receipt by the OSC on
behalf of the Canadian Qualifying Authorities for such preliminary MJDS
shelf prospectus, a final receipt by the OSC on behalf of the Canadian
Qualifying Authorities for such final MJDS shelf prospectus and a receipt
by the OSC on behalf of the Canadian Qualifying Authorities for such
amended and restated final MJDS shelf prospectus and any amendments
thereto, in the forms of such preliminary, final and amended and restated
MJDS shelf prospectuses previously delivered, along with any documents
(including any preliminary form of prospectus supplement) filed in
connection therewith and all documents incorporated by reference therein,
to the Representatives for each of the Underwriters; no other document with
respect to such MJDS shelf prospectus and no amendment thereto or document
incorporated by reference therein has previously been filed or transmitted
for filing with a Canadian Qualifying Authority; and no order having the
effect of preventing or suspending the use of any prospectus or prospectus
supplement relating to the Securities has been issued and no proceeding for
that purpose has been initiated or threatened by a Canadian Qualifying
Authority (such amended and restated MJDS shelf prospectus, including any
amendments to the form of prospectus for which a final receipt was issued
by the OSC on behalf of the Canadian Qualifying Authorities and the
documents incorporated by reference therein, are hereinafter called,
collectively, the "Canadian Prospectus"; and any reference to the Canadian
Prospectus as amended or supplemented shall be deemed to refer to the
Canadian Prospectus as amended or supplemented in relation to the Offered
Securities in the form in which it is first filed with the Canadian
Qualifying Authorities pursuant to Canadian Securities Laws).] *
(b) Effectiveness; Compliance. [(i)] No order suspending the
effectiveness of the Registration Statement has been issued by the
Commission and, to the knowledge of the Company, no proceeding for that
purpose has been initiated or threatened by the Commission. On the
applicable effective date of the Registration Statement and any amendment
thereto, the Registration Statement complied in all material respects to
the requirements of the Securities 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 Securities
Act, 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 made in reliance upon
and in conformity with information relating to any Underwriter furnished to
the Company in writing by such Underwriter specifically for use therein.
[(ii) On the date of issuance of the final receipt for the Canadian
Prospectus, the Canadian Prospectus complied in all material respects with
Canadian Securities Laws
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* Unless otherwise indicted, throughout this Agreement include bracketed
and italicized language only if Canadian offering is contemplated.
Otherwise, delete.
and did not include any untrue statement of a material fact or omit to a
state a material fact required to be stated therein or necessary to make
the statements therein in light of the circumstances under which they were
made not misleading, and on the date of the Terms Agreement referred to in
Section 3, the Canadian Prospectus will conform in all material respects to
the requirements of Canadian Securities Laws, and such document will 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 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 made in reliance upon
and in conformity with information relating to any Underwriter furnished to
the Company in writing by such Underwriter through the Representatives
expressly for use in the Canadian Prospectus or any amendment or supplement
thereto.]
(c) Incorporated Documents. Each document filed by the Company
pursuant to the Exchange Act incorporated by reference in the Prospectus
complied when so filed in all material respects with the Exchange Act, and
each document, if any, hereafter so filed and so incorporated by reference
in the Prospectus (other than documents incorporated by reference therein
relating solely to securities other than the Offered Securities), when such
documents are filed with the Commission will comply in all material
respects with the Exchange Act and the rules and regulations thereunder.
(d) Financial Statements. The financial statements and the related
notes thereto included or incorporated by reference in the Registration
Statement and the Prospectus comply in all material respects with the
applicable requirements of the Securities Act and the Exchange Act, as
applicable, and present fairly the financial position of the Company and
its subsidiaries taken as a whole as of the dates indicated and the results
of their operations and the changes in their cash flows for the periods
specified; such financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods covered thereby, and the supporting schedules
included or incorporated by reference in the Registration Statement present
fairly the information required to be stated therein; the other financial
information included or incorporated by reference in the Registration
Statement and the Prospectus has been derived from the accounting records
of the Company and its subsidiaries and presents fairly the information
shown thereby.
(e) No Material Adverse Change. Since the date of the most recent
financial statements of the Company included or incorporated by reference
in the Registration Statement and the Prospectus, and except in each case
as otherwise disclosed in or contemplated by the Registration Statement and
the Prospectus (i) there has not been any change in the capital stock
(other than as a result of the exercise of outstanding stock options or
warrants or other convertible securities of the Company), increase in
long-term debt of the Company and its subsidiaries that is material to the
Company and its subsidiaries taken as a whole, or any dividend or
distribution of any kind declared, set aside for payment, paid or made by
the Company on any class of capital stock of the Company or Newmont Mining
Corporation of Canada Limited [(except for dividends declared on
__________, _____ to be paid on _________, _____)], or any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the business, properties, management, financial
position, stockholders' equity, results of operations or prospects of the
Company and its subsidiaries taken as a whole; (ii) neither the Company nor
any of its subsidiaries has entered into any transaction or agreement that
is material to the Company and its subsidiaries taken as a whole or
incurred any liability or obligation, direct or contingent, that is
material to the Company and its subsidiaries taken as a whole; and (iii)
neither the Company nor any of its subsidiaries has sustained any material
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
disturbance or dispute or any action, order or decree of any court or
arbitrator or governmental or regulatory authority.
(f) Organization and Good Standing. The Company and each of its
Significant Subsidiaries, as defined in Rule 1-02 of Regulation S-X (the
"Significant Subsidiaries"), have been duly organized and are validly
existing and in good standing under the laws of their respective
jurisdictions of organization, are duly qualified to do business and are in
good standing in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses requires
such qualification, and have all power and authority necessary to own or
hold their respective properties and to conduct the businesses in which
they are engaged, except where the failure to be so qualified or have such
power or authority would not, individually or in the aggregate, have a
material adverse effect on the business, properties, management, financial
position, stockholders' equity, results of operations or prospects of the
Company and its subsidiaries taken as a whole (a "Material Adverse
Effect").
(g) Capitalization. All the outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid
and non-assessable and are not subject to any pre-emptive or similar
rights; except as described in or expressly contemplated by the Prospectus,
there are no outstanding rights (including, without limitation, pre-emptive
rights), warrants or options to acquire, or instruments convertible into or
exchangeable for, any shares of capital stock or other equity interest in
the Company, or any contract, commitment, agreement, understanding or
arrangement of any kind relating to the issuance of any capital stock of
the Company, any such convertible or exchangeable securities or any such
rights, warrants or options, other than this Agreement; the capital stock
of the Company conforms in all material respects to the description thereof
contained in the Registration Statement and the Prospectus; and all the
outstanding shares of capital stock or other equity interests of each
Significant Subsidiary have been duly and validly authorized and issued,
are fully paid and non-assessable and are owned directly or indirectly by
the Company, free and clear of any lien, charge, encumbrance, security
interest, restriction on voting or transfer or any other claim of any third
party, except as described in Schedule 2(g) hereto.
(h) Due Authorization. The Company has full right, power and authority
to execute and deliver this Agreement and the Terms Agreement
(collectively, the "Transaction Documents") and to perform its obligations
hereunder and thereunder.
(i) Underwriting Agreement. Each of the Transaction Documents has been
duly authorized, executed and delivered by the Company and constitutes a
valid and binding obligation of the Company, subject as to the enforcement
of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium, or other laws affecting creditors' rights generally, from time
to time in effect and to general principles of equity and except as to the
provisions with respect to indemnification or contribution may be limited
by applicable law, regulation or public policy;
(j) The Securities. The Offered Securities to be issued and sold by
the Company hereunder have been duly authorized by the Company and, when
issued and delivered against payment therefor as provided herein, will be
duly and validly issued and will be fully paid and nonassessable and will
conform in all material respects to the descriptions thereof in the
Prospectus; and the issuance of the Offered Securities is not subject to
any preemptive or similar rights;
(k) No Violation or Default. Neither the Company nor any of its
subsidiaries is (i) in violation of its charter or by-laws or similar
organizational documents; (ii) in default, and no event has occurred that,
with notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject; or (iii) in violation of any law or statute or
any judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory authority, except, in the case of clauses (ii)
and (iii) above, for any such default or violation that would not,
individually or in the aggregate, have a Material Adverse Effect.
(l) No Conflicts. The execution, delivery and performance by the
Company of each of the Transaction Documents, the issuance and sale of the
Offered Securities and the consummation of the transactions contemplated by
the Transaction Documents will not (i) result in any violation of the
provisions of the charter or by-laws or similar organizational documents of
the Company or any of its subsidiaries, (ii) conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, or (iii) result in the
violation of any law or statute or any judgment, order, rule or regulation
of any court or arbitrator or governmental or regulatory authority having
jurisdiction over the Company or any of its subsidiaries except in the case
of clauses (ii) and (iii), any conflicts, breaches, violations or defaults
that would not, individually or in the aggregate, have a Material Adverse
Effect.
(m) No Consents Required. No consent, approval, authorization, order,
registration or qualification of or with any court or arbitrator or
governmental or
regulatory authority is required for the execution, delivery and
performance by the Company of each of the Transaction Documents, the
issuance and sale of the Offered Securities and the consummation of the
transactions contemplated by the Transaction Documents, except for the
registration of the Offered Securities under the Securities Act, [the
qualification of the Offered Securities for distribution by prospectus
under Canadian Securities Laws] and such consents, approvals,
authorizations, orders and registrations or qualifications as may be
required under applicable state or other securities laws of any
jurisdictions in connection with the purchase and distribution of the
Offered Securities by the Underwriters and such approvals as have been
obtained.
(n) Independent Accountants. PricewaterhouseCoopers LLP, who have
certified certain financial statements of the Company and its subsidiaries,
are independent public accountants with respect to the Company and its
subsidiaries as required by the Securities Act.
(o) Compliance With Environmental Laws. The Company and its
subsidiaries (i) are in compliance with any and all applicable federal,
state, local and foreign laws, rules, regulations, decisions and orders
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, "Environmental Laws"); (ii) have received and are in
compliance with all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective businesses;
and (iii) have not received notice of any actual or potential liability for
the investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants, except in any such
case for any such failure to comply, or failure to receive required
permits, licenses or approvals, or liability as would not, individually or
in the aggregate, have a Material Adverse Effect.
(p) Accounting Controls. The Company and its subsidiaries maintain
systems of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any
differences.
(q) No Broker's Fees. Neither the Company nor any of its subsidiaries
is a party to any contract, agreement or understanding with any person
(other than this Agreement) that would give rise to a valid claim against
the Company or any of its subsidiaries or any Underwriter for a brokerage
commission, finder's fee or like payment in connection with the offering
and sale of the Offered Securities.
3. Purchase and Offering of Firm Securities. The obligation of the
Company to issue and sell any Firm Securities, the obligation of the
Underwriters to purchase the Firm Securities, and, if applicable, the Company's
granting to the Underwriters of an option to
purchase any Option 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 Firm Securities. The
Terms Agreement will incorporate by reference the provisions of this Agreement,
except as otherwise provided therein, and will specify the following: the firm
or firms which will be Underwriters; the names of any Representatives; the
aggregate amount of the Firm Securities, and, if applicable, the Option
Securities; the terms of any option granted by the Company to the Underwriters
to purchase Option Securities; the amount of Firm Securities to be purchased by
each Underwriter; the initial public offering price of the Offered Securities;
the purchase price to be paid by the Underwriters; and, if the Offered
Securities are Preferred Shares, Depositary Shares or Warrants, the terms
thereof including, but not limited to, in the case of Preferred Shares
(including those represented by Depositary Shares), the designation thereof, the
dividend rate (or method of calculation), the dates on which dividends will be
payable, whether such dividends will be cumulative or noncumulative and, if
cumulative, the dates from which dividends will commence to cumulate, any
redemption or sinking fund provisions, and the terms of conversion, if any, and,
in the case of Depositary Shares, the fraction of the relevant Preferred Share
represented thereby and, in the case of Warrants, the expiration date, the
exercise price and the other terms for the exercise thereof. The Terms Agreement
will also specify the place of delivery and payment for the Offered Securities
and any details of the terms of offering that should be reflected in the
prospectus supplement relating to the offering of the Offered Securities.
The time and date of delivery and payment of the Firm Securities will
be the time and date specified in the Terms Agreement, 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 of the Firm Securities (such
time and date, being herein and in the Terms Agreement referred to as the "Firm
Closing Date"). The time and date of delivery and payment of the Option
Securities, if any, will be the time and date specified by the Underwriters as
provided in the Terms Agreement, which may be the Firm Closing Date, but shall
not be more than seven business days after the exercise of the option nor in any
event prior to the Firm Closing Date (such time and date being herein and in the
Terms Agreement referred to as the "Option Closing Date"). As used herein and in
the Terms Agreement, the term "Closing Date" means, with respect to the Firm
Securities, the Firm Closing Date and, with respect to the Option Securities,
the Option Closing Date.
The obligations of the Underwriters to purchase the Offered Securities
will be several and not joint. It is understood that the Underwriters propose to
offer the Offered Securities for sale as set forth in the Prospectus and the
Canadian Prospectus. The Offered Securities delivered to the Underwriters on the
Closing Date will be in such denominations and registered in such names as the
Underwriters may request.
4. Certain Agreements of the Company. The Company covenants and agrees
with each of the several Underwriters that, in connection with each offering of
Offered Securities:
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b). The Company will file on a timely
basis all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act during the Prospectus
Delivery Period (as defined below); and the Company will furnish copies of
the Prospectus to the Underwriters in New York City prior to 10:00 A.M.,
New York City time, on the business day next succeeding the date of the
Terms Agreement or as promptly as practicable thereafter in such quantities
as the Representatives may reasonably request. [The Company will file the
Canadian Prospectus with the Canadian Qualifying Authorities in accordance
with NI 71-101 and furnish copies of the Canadian Prospectus to the
Canadian affiliates of the Underwriters in Toronto prior to 10:00 A.M.,
Toronto time, on the business day next succeeding the date of the Terms
Agreement or as promptly as practicable thereafter in such quantities as
the Representatives may reasonably request.]
(b) The Company will deliver, without charge to each Underwriter (A) a
conformed copy of the Registration Statement as originally filed and each
amendment thereto (without exhibits) and (B) during the Prospectus Delivery
Period, as many copies of the Prospectus (including all amendments and
supplements thereto and documents incorporated by reference therein) as the
Representatives may reasonably request. As used herein, the term
"Prospectus Delivery Period" means such period of time after the first date
of the public offering of the Offered Securities that a prospectus relating
to the Offered Securities is required by law to be delivered in connection
with sales of the Offered Securities by any Underwriter or dealer.
(c) During the Prospectus Delivery Period, the Company will advise the
Representatives promptly, and confirm such advice in writing, (i) of any
proposal to amend or supplement the Registration Statement or the
Prospectus [or the Canadian Prospectus] and will not file any such proposed
amendment or supplement to which the Representatives reasonably object,
(ii) when any amendment to the Registration Statement has been filed or
becomes effective; (iii) when any supplement to the Prospectus [or Canadian
Prospectus] or any amendment to the Prospectus [or Canadian Prospectus] has
been filed; (iv) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus [or
any request by the Canadian Qualifying Authorities for amendment or
supplement to the Canadian Prospectus] or the receipt of any comments from
the Commission relating to the Registration Statement or any other request
by the Commission [or the Canadian Qualifying Authorities] for any
additional information; (v) of the issuance by the Commission [or a
Canadian Qualifying Authorities] of any order suspending the effectiveness
of the Registration Statement or preventing or suspending the use of any
preliminary prospectus or the Prospectus [or the Canadian Prospectus] or
the initiation or threatening of any proceeding for that purpose; and (vi)
of the receipt by the Company of any notice with respect to any suspension
of the qualification of the Offered Securities for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and the Company will use its best efforts to prevent the issuance
of any such order suspending the effectiveness of the Registration
Statement, preventing or
suspending the use of any preliminary prospectus or the Prospectus or
Canadian Prospectus or suspending any such qualification of the Offered
Securities and, if any such order is issued, will obtain as soon as
possible the withdrawal thereof.
(d) If during the Prospectus Delivery Period (i) any event shall occur
as a result of which the Prospectus [or Canadian Prospectus] as then
amended or supplemented would include an 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, in the light of the
circumstances in which they were made not misleading or (ii) it is
necessary to amend or supplement the Prospectus [or Canadian Prospectus] to
comply with the Securities Act, the Company promptly will notify the
Representatives thereof and forthwith prepare and, subject to paragraph (c)
above, file with the Commission [or Qualifying Canadian Authorities, as
applicable,] and furnish to the Representatives and to such dealers as the
Representatives may designate, such amendments or supplements to the
Prospectus [and Canadian Prospectus] as 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.
(e) The Company will make generally available to its security holders
and the Representatives as soon as practicable, an earnings statement of
the Company and its subsidiaries that satisfies the provisions of Section
11(a) of the Securities Act and Rule 158 of the Commission promulgated
thereunder covering a period of at least twelve months beginning with the
first fiscal quarter of the Company occurring after the "effective date"
(as defined in Rule 158) of the Registration Statement.
(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 Securities
Act [and qualification of the Securities for distribution by prospectus
under Canadian Securities Laws ] 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 Canadian Prospectus] 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 Certificate of Designations, any Deposit Agreement, any
Warrant Agreement, any Blue Sky Memorandum and any other documents in
connection with the offering, purchase, sale and delivery of the Offered
Securities; (iii) all expenses in connection with the qualification of the
Offered 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 survey**; (iv) any fees charged by
securities rating services for rating the Offered Securities; (v) any
filing fees incident to any required review by the National Association
-------------------
** Include language in italics if warrants are being sold; delete if shares of
Common Stock or Preferred Stock are being sold.
of Securities Dealers, Inc. of the terms of the sale of the Offered
Securities; (vi) the cost of preparing the Offered Securities and any
Common Shares issuable upon conversion or exercise thereof; (vii) the fees
and expenses in connection with the listing, if any, of the Offered
Securities or any Common Shares issuable upon conversion or exercise
thereof; (viii) the fees and expenses of any transfer agent relating to any
Common Shares or any Preferred Shares; (ix) the fees and expenses of any
Depositary relating to any Depositary Shares; (x) the fees and expenses of
any Warrant Agent relating to any Warrants; (xi) expenses incurred by the
Company in connection with any "road show" presentation to potential
investors; and (xii) 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 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 Offered
Securities by them, and any advertising expenses they incur connected with
any offers they may make.
(g) If and to the extent so provided in the Terms Agreement referred
to in Section 3, the Company, for the period therein provided, will not,
directly or indirectly, sell, contract to sell or otherwise dispose of
certain of its securities as specified in such Terms Agreement.
(h) The Company will arrange for the qualification of the Offered
Securities for offer and sale under the securities and Blue Sky laws of
such jurisdictions as the Representatives reasonably designate and will
continue such qualifications in effect so long as required for the
distribution of the Offered 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.***
(i) The Company will apply the net proceeds from the sale of the
Offered Securities as described in the Prospectus under the heading "Use of
Proceeds".
(j) The Company will not take, directly or indirectly, any action
designed to or that could reasonably be expected to cause or result in any
stabilization or manipulation of the price of the Offered Securities.
(k) The Company will use its reasonable efforts to list, subject to
notice of issuance, the Offered Securities on the [insert any applicable
stock exchange or exchanges].
5. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
Firm Closing Date and the Option Securities on the Option Closing Date will be
subject to the accuracy of the written statements of Company officers made
pursuant to the provisions hereof, to the performance by
-------------------
*** Include paragraph (h) if warrants; delete if Common Stock or Preferred
Stock.
the Company of its covenants and other obligations hereunder and to the
following additional conditions precedent:
(a) The Representatives shall have received a "comfort letter", dated
the Closing Date, in form and substance [reasonably] satisfactory to the
Representatives.
(b) The Prospectus shall have been timely filed with the Commission in
accordance with the Securities Act and Section 4(a) of this Agreement. [The
Canadian Prospectus shall have been timely filed with the Canadian
Qualifying Authorities in accordance with Canadian Securities Laws and
Section 4(a) of this Agreement.] No stop order suspending the effectiveness
of the Registration Statement or of any part thereof [or the use of the
Canadian Prospectus] shall have been issued and no proceeding for that
purpose shall have been instituted or, to the knowledge of the Company,
threatened by the Commission [or a Canadian Qualifying Authority].
(c) Subsequent to the execution and delivery of the Terms Agreement,
there shall not have occurred (i) any downgrading in the rating accorded
any senior debt securities of the Company by any "nationally recognized
statistical rating organization" (as such term is defined by the Commission
for purposes of Rule 436(g)(2) under the Securities 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 of such
rating); or (ii) any event or condition of a type described in Section 2(e)
hereof, which event or condition is not described in the Prospectus
(excluding any amendment or supplement thereto) and the effect of which in
the reasonable judgment of the Representatives makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the Offered
Securities on the Firm Closing Date or the Option Closing Date, as the case
may be, on the terms and in the manner contemplated by this Agreement, the
Prospectus and the Canadian Prospectus.
(d) The Representatives shall have received on and as of the Firm
Closing Date or the Option Closing Date, as the case may be, a certificate
of the Chairman of the Board of Directors and Chief Executive Officer, the
President, any Executive Vice President, any Senior Vice President or any
Vice President and the Chief Financial Officer or Chief Accounting Officer
of the Company in which such officers, to their knowledge, shall confirm
(i) that such officers have carefully reviewed the Registration Statement,
the Prospectus and the Canadian Prospectus and, to the knowledge of such
officers, the representations and warranties of the Company in this
Agreement are true and correct and that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date, (ii) no downgrading
in the rating accorded any senior debt securities of the Company by any
"nationally recognized statistical rating organization" (as such term is
defined by the Commission for purposes of Rule 436(g)(2) under the
Securities 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 of such rating) has occurred; and (ii) to the effect set
forth in paragraph (b) above.
(e) The Representatives shall have received an opinion, dated the Firm
Closing Date or the Option Closing Date, as the case may be, of White &
Case LLP, counsel for the Company, to the effect (to the extent applicable
to the Offered Securities):
(i) Each of the Company and Newmont USA Limited has been duly
incorporated and is an existing corporation in good standing under the
laws 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 Closing Date have been duly authorized, are validly issued, fully
paid and non-assessable, and conform in all material respects as to
legal matters to the description thereof contained in the Prospectus;
(iii) If the Offered Securities are Common Shares, the Common
Shares have been duly authorized and validly issued, and, when
countersigned by the transfer agent therefor, and sold to the
Underwriters against payment therefor pursuant to this Agreement and
the Terms Agreement, will be fully paid and non-assessable; and the
issuance of such Common Shares is not subject to the preemptive rights
of any stockholder of the Company;
(iv) If the Offered Securities are Preferred Shares or Depositary
Shares, the Preferred Shares have been duly authorized and validly
issued and, when countersigned by the transfer agent therefor and, if
applicable, when deposited pursuant to the Deposit Agreement against
issuance of Depositary Shares and when the Preferred Shares or the
Depositary Shares, as the case may be, are sold to the Underwriters
against payment therefor pursuant to this Agreement and the Terms
Agreement, will be validly issued, fully paid and non-assessable; and
the issuance and, if applicable, deposit of such Preferred Shares is
not subject to the preemptive rights of any stockholder of the
Company;
(v) If the Offered Securities are Depositary Shares, the
depositary receipts (the "Depositary Receipts"), when issued and
delivered pursuant to the Deposit Agreement and this Agreement and the
Terms Agreement, will entitle the holders thereof to the rights
specified in such Depositary Receipts and in the Deposit Agreement;
(vi) If the Offered Securities are Preferred Shares or Depositary
Shares, the Certificate of Designations of the Company creating the
Preferred Shares has been duly filed with the Secretary of State of
Delaware and with all other offices where such filing is required;
(vii) If the Offered Securities are Depositary Shares, the
Deposit Agreement has been duly authorized, executed and delivered by
the Company, and the Deposit Agreement constitutes a valid and legally
binding obligation of the Company enforceable in accordance with its
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);
(viii) If the Offered Securities are Preferred Shares that are
convertible into Common Shares, or Depositary Shares evidencing
fractions of such Preferred Shares, the Common Shares have been duly
authorized and reserved for issuance by the Company upon conversion of
the Preferred Shares, and when so issued and countersigned by the
transfer agent therefor, will be validly issued, fully paid and
non-assessable; and the issuance of such Common Shares will not be
subject to the preemptive rights of any stockholder of the Company;
(ix) If the Offered Securities are Warrants, the Warrants have
been duly authorized, executed and delivered by the Company and, when
counter-signed by the Warrant Agent and sold to the Underwriters
against payment therefor pursuant to this Agreement and the Terms
Agreement, will constitute valid and legally binding obligations of
the Company 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 creditor's rights generally, or by general equitable
principles (regardless of whether the issue of enforceability is
considered in a proceeding in equity or at law);
(x) If the Offered Securities are Warrants, the Warrant Agreement
has been duly authorized, executed and delivered by the Company, and
the Warrant Agreement constitutes a valid and legally binding
obligation of the Company enforceable in accordance with its 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);
(xi) If the Offered Securities are Warrants, the Common Shares
have been duly authorized and reserved for issuance by the Company
upon exercise of the Offered Securities, and when so issued and
countersigned by the transfer agent therefor, will be validly issued,
fully paid and non-assessable; and the issuance of such Common Shares
will not be subject to the pre-emptive rights of any stockholder of
the Company;
(xii) The Offered Securities conform in all material respects to
the description thereof contained in the Prospectus;
(xiii) The Company has full corporate power and authority to
authorize, issue and sell the Offered Securities as contemplated by
the Terms Agreement (including the provisions of this Agreement) and
all action required to be taken for the due and proper authorization,
execution and delivery of each of the Transaction
Documents and the consummation of the transactions contemplated
thereby have been duly and validly taken.
(xiv) Each of the Transaction Documents has been duly authorized,
executed and delivered by the Company and constitutes a valid and
legally binding agreement of the Company enforceable against the
Company in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally or by equitable principles relating to
enforceability and as rights to indemnity and contribution may be
limited by United States federal or state securities laws or public
policy.
(xv) 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),
any Warrant Agreement and any Deposit Agreement, except such as have
been obtained and made under the Securities Act and such as may be
required under state securities or Blue Sky laws (as to which such
counsel need express no opinion);
(xvi) The execution, delivery and performance of the Terms
Agreement (including the provisions of this Agreement), any Deposit
Agreement and any Warrant Agreement and the issuance and sale of the
Offered 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 Certificate of
Incorporation, as amended, 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 Securities Act and under applicable state
securities or Blue Sky laws as to which such counsel need express no
opinion);
(xvii) The Registration Statement was declared effective under
the Securities Act as of the date and time specified in such opinion;
the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) under the Securities Act specified in such
opinion on the date specified therein; and no order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose is pending or, to the knowledge of such
counsel, threatened by the Commission; and
(xviii) The registration statement relating to the 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 Securities 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 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.
(f) The Representatives shall have received an opinion, dated the Firm
Closing Date or the Option Closing Date, as the case may be, from Xxxxx X.
Xxxxx, Esq., Vice President and General Counsel of the Company (subject to
customary qualifications furnished to the Representatives), to the effect
that:
(i) The Company and each of the Significant Subsidiaries has been
duly incorporated and is an existing corporation in good standing in
its jurisdiction of organization 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), and has all power
and authority necessary to own its properties and conduct the business
in which it is engaged as described in the Prospectus;
(ii) The execution, delivery and performance of the Terms
Agreement (including the provisions of this Agreement), any Warrant
Agreement and any Deposit Agreement and the issuance and sale of the
Offered 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, which breach or violation, individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect;
(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), any
Warrant Agreement and any Deposit 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) To the knowledge of such counsel, except as described in the
Prospectus, there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending to which the
Company or any of its subsidiaries is or may be a party or to which
any property of the Company or any of its subsidiaries is or may be
the subject which, individually or in the aggregate, if determined
adversely to the Company or any of its subsidiaries, could reasonably
be expected to have a Material Adverse Effect; and to the knowledge of
such counsel, and except as described in the Prospectus, no such
investigations, actions, suits or proceedings are threatened or
contemplated by any governmental or regulatory authority or threatened
by others.
(v) 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 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
thereunder; and nothing has come to such counsel's attention that
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;
(vi) Nothing has come to such counsel's attention that causes it
to believe that the Registration Statement relating to the 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
(vii) 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; and, to the knowledge of such
counsel, (A) there are no current or pending legal, governmental or
regulatory actions, suits or proceedings that are required under the
Securities Act to be described in the
Prospectus and that are not so described and (B) there are no
statutes, regulations or contracts and other documents that are
required under the Securities Act to be filed as exhibits to the
Registration Statement or described in the Prospectus and that have
not been so filed or described.
(g) The Offered Securities to be delivered on the Firm Closing Date or
Option Closing Date, as the case may be, shall have been approved for
listing on the New York Stock Exchange, subject to official notice of
issuance.
(h) The Representatives shall have received from counsel for the
Underwriters, such opinion or opinions, dated the Closing Date, with
respect to the incorporation of the Company, the validity of the Offered
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.
(k) On or prior to the Firm Closing Date or the Option Closing Date,
as the case may be, the Company shall have furnished to the Representatives such
further certificates and documents as the Representatives may reasonably request
All opinions, letters, certificates and evidence mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters. 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 agrees to
indemnify and hold harmless each Underwriter, its affiliates, directors and
officers and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages and 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 a material fact contained in the Registration
Statement, the Prospectus (or any amendment or supplement thereto), [the
Canadian Prospectus (or any amendment or supplement thereto)] or any related
preliminary prospectus or preliminary prospectus supplement, or arise out of or
are based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements
therein (in the light of the circumstances under which they were made) not
misleading, except insofar as such losses, claims, damages or liabilities arise
out of, or are based upon, any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with any
information furnished to the Company in writing by any Underwriter specifically
for use therein; provided, that with respect to any such untrue statement in or
omission from any preliminary prospectus or preliminary prospectus supplement,
the indemnity agreement contained in this paragraph (a) shall not inure to the
benefit of any Underwriter to the extent that such loss, claim, damage or
liability of or with respect to such Underwriter results from the fact that both
(i) to the extent required by applicable law, a copy of the Prospectus [or the
Canadian Prospectus] was not sent or given to such person
at or prior to the written confirmation of the sale of such Offered Securities
to such person and (ii) the untrue statement in or omission from such
preliminary prospectus was corrected in the Prospectus [or the Canadian
Prospectus] unless, in either case, such failure to deliver the Prospectus [or
the Canadian Prospectus] was a result of non-compliance by the Company with the
provisions of Section 4 hereof.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the indemnity set forth in paragraph (a) above, but
only with respect to any losses, claims, damages or liabilities (or actions in
respect thereof) that arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission 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
statement or omission or alleged omission made in reliance upon and in
conformity with any information relating to such Underwriter furnished to the
Company in writing specifically for use therein.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnification may be sought pursuant to either
paragraph (a) or (b) above, such person (the "Indemnified Person") shall
promptly notify the person against whom such indemnification may be sought (the
"Indemnifying Person") in writing; provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 6 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person
otherwise than under this Section 6. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others entitled to indemnification pursuant to this Section 6
that the Indemnifying Person may designate in such proceeding and shall pay the
fees and expenses of such counsel related to such proceeding, as incurred. In
any such proceeding, any Indemnified Person shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it
that are different from or in addition to those available to the Indemnifying
Person; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood and agreed that the Indemnifying
Person shall not, in connection with any proceeding or related proceeding in the
same jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Indemnified Persons, and that
all such fees and expenses shall be paid or reimbursed as they are incurred. Any
such separate firm for any Underwriter, its affiliates, directors and officers
and any control persons of such Underwriter shall be designated in writing by
the Representatives and any such separate firm for the Company, its directors,
its officers who signed the Registration Statement and any control persons of
the Company shall be designated in writing by the Company. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify each
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. No Indemnifying Person shall, without the written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (x) includes an unconditional release
of such Indemnified Person, in form and substance reasonably satisfactory to
such Indemnified Person, from all liability on claims that are the subject
matter of such proceeding and (y) does not include any statement as to or any
admission of fault, culpability or a failure to act by or on behalf of any
Indemnified Person.
(d) If the indemnification provided for in paragraphs (a) and (b)
above is unavailable(other than as a result of the proviso contained in
paragraph (a)) to an Indemnified Person or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses, claims, damages
or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) but also the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other shall be deemed to be in the
same respective proportions as the net proceeds (before deducting expenses)
received by the Company from the sale of the Offered Securities bear to the
total underwriting discounts and commissions received by the Underwriters in
connection therewith. The relative fault of the Company on the one hand and the
Underwriters on the other 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 by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to paragraph (d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d)
above. The amount paid or payable by an Indemnified Person as a result of the
losses, claims, damages and liabilities (or actions in respect thereof) referred
to in paragraph (d) above shall be deemed to include any legal or other expenses
reasonably incurred by such Indemnified Person in connection with any such
action or claim. Notwithstanding the provisions of this Section 6, in no event
shall an Underwriter be required to contribute any amount in excess of the
amount by which the total underwriting discounts and commissions received by
such Underwriter with respect to the offering of the Offered Securities exceeds
the amount of any damages that 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 Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to paragraph (d) are several in
proportion to their respective purchase obligations hereunder and not joint.
(f) 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. Termination. This Agreement and the Terms Agreement may be
terminated in the absolute discretion of the Representatives, by notice to the
Company, if after the execution and delivery of this Agreement and the Terms
Agreement and prior to the Firm Closing Date or, in the case of the Option
Securities, prior to the Option Closing Date (i) trading generally shall have
been suspended or materially limited on or by any of the New York Stock
Exchange; (ii) trading of any securities issued or guaranteed by the Company
shall have been suspended on any exchange; (iii) a general moratorium on
commercial banking activities shall have been declared by federal or New York
State authorities; or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis,
either within or outside the United States, that, in the judgment of the
Representatives, is material and adverse and makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the Offered
Securities on the Firm Closing Date or the Option Closing Date, as the case may
be, on the terms and in the manner contemplated by this Agreement, the Terms
Agreement and the Prospectus.
8. Default of Underwriters. (a) If any Underwriter shall default in
its obligation to purchase the Offered Securities which it has agreed to
purchase under the Terms Agreement relating to such Offered Securities, the
Representatives may in their discretion arrange for themselves or another party
or other parties to purchase such Offered Securities on the terms contained
therein. If within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Offered 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 Offered Securities on such
terms. In the event that, within the respective prescribed periods, the
Representatives notify the Company that they have so arranged for the purchase
of such Offered Securities, or the Company notifies the Representatives that it
has so arranged for the purchase of such Offered Securities, the Representatives
or the Company shall have the right to postpone the Closing Date for the Offered
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 the Canadian 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 [or the Canadian 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 Offered Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Offered Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in paragraph (a) above, the
aggregate number of such Offered Securities which remains unpurchased does not
exceed one-tenth of the aggregate number of the Offered Securities, then the
Company shall have the right to require each non-defaulting Underwriter to
purchase on the applicable Closing Date the number of Offered Securities which
such Underwriter agreed to purchase under the Terms Agreement relating to such
Offered Securities and, in addition, to require each non-defaulting Underwriter
to purchase its pro rata share (based on the amount of Securities which such
Underwriter agreed to purchase under such Terms Agreement) of the Offered
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 Offered Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in paragraph (a) above, the
aggregate amount of Offered Securities which remains unpurchased exceeds
one-tenth of the aggregate amount of the Offered Securities, as referred to in
paragraph (b) above, or if the Company shall not exercise the right described in
paragraph (b) above to require non-defaulting Underwriters to purchase Offered
Securities of a defaulting Underwriter or Underwriters, then the Terms Agreement
relating to such Offered Securities (or, with respect to the Option Closing
Date, the obligations of the Underwriters to purchase, and of the Company to
sell, the Option 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.
9. 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 Offered Securities. If the Terms
Agreement is terminated pursuant to Section 7 or if for any reason the purchase
of the Offered 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 Offered Securities by the Underwriters is not consummated
for any reason, other than solely because of the termination of the Terms
Agreement pursuant to Section 7 or 8 or the occurrence of any event specified in
clause (ii)(iv) or (v) of Section 5(d), 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
Offered Securities, but the Company shall be under no further liability to any
Underwriter except as provided in Section 6.
10. 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.
11. 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 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 Offered Securities from any Underwriter shall be deemed
a successor or assign merely by reason of such purchase.
12. Representatives. In all dealings under any Terms Agreement and
hereunder, the Representatives 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.
13. Certain Defined Terms. For purposes of this Agreement, (a) except
where otherwise expressly provided, the term "affiliate" has the meaning set
forth in Rule 405 under the Securities Act; (b) the term "business day" means
any day on which the Commission's offices in Washington, D.C. are open for
business; and (c) the term "subsidiary" has the meaning set forth in Rule 405
under the Securities Act.
14. Time of Essence. Time shall be of the essence of each Terms
Agreement.
15. GOVERNING LAW. THIS AGREEMENT AND EACH TERMS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. 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 (which may include counterparts delivered by any standard form of
telecommunication), each of which shall be deemed to be an original, but all
such respective counterparts shall together constitute one and the same
instrument.
17. Amendments or Waivers. No amendment or waiver of any provision of
this Agreement or each Terms Agreement, nor any consent or approval to any
departure therefrom, shall in any event be effective unless the same shall be in
writing and signed by the parties hereto.
18. Headings. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement or each Terms Agreement.
If the foregoing is in accordance with your understanding, please sign
and return five counterparts hereof.
Very truly yours,
NEWMONT MINING CORPORATION
By___________________________
Name:
Title:
Accepted as of the date hereof:
By:
----------------------------------
Authorized Signatory
ANNEX I
NEWMONT MINING CORPORATION
Equity Securities
Terms Agreement
---------, ----
[Names and Addresses of
Representatives]
Dear Sirs:
Newmont Mining Corporation, 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
amount of Firm Securities set forth opposite the name of such Underwriter in
Schedule I hereto.
[Subject to the terms and conditions set forth herein and in the Terms
Agreement, the Company hereby grants an option to the Underwriters, severally
and not jointly, to purchase in the aggregate up to the number of Option
Securities set forth on Schedule II at the same purchase price as shall be
applicable to the Firm Securities. The option hereby granted will
ANNEX 1
Page 2
expire __ days after the date hereof and may be exercised, in whole or in part
at one time, only for the purpose of covering over-allotments that may be made
in connection with the offering and distribution of the Firm Securities. Such
option may be exercised upon written notice by you to the Company setting forth
the number of Option Securities as to which the several Underwriters are
exercising the option and the Option Closing Date. If the option is exercised as
to all or any portion of the Option Securities, the Option Securities as to
which the option is exercised shall be purchased by each Underwriter, severally
and not jointly, in the proportion that the number of Firm Securities set forth
opposite the name of such Underwriter in Schedule I bears to the total number of
Firm Securities, subject to such adjustments as you, in your discretion, shall
make to eliminate any sales or purchases of fractional Offered Securities. No
Option Securities shall be sold or delivered unless the Firm Securities
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Option Securities or any portion thereof may be surrendered and
terminated at any time before the exercise thereof upon written notice by the
Representatives to the Company.]
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 MINING CORPORATION
By__________________________
Name:
Title:
Accepted as of the date hereof:
By:_________________________
On behalf of each of the Underwriters
SCHEDULE I
Amount of
Firm Securities
Underwriter to be Purchaser
----------- ---------------
-----------------
Total . . . . . . . . . . . . . . . . . . . . . . . .
=================
SCHEDULE II
Title of Securities:
Aggregate number of Firm Securities:
Aggregate number of Option Securities:
Price to Public:
$-----------
Purchase Price by Underwriters:
$-----------
Specified funds for payment of purchase price:
[New York] Clearing House funds
If the Securities are Preferred Shares or Depositary Shares evidencing fractions
of Preferred Shares, the terms of such Preferred Shares are as follows:
Designation:
Date of Certificate of Designations:
Dividend Rate or Amount:
[$___ per share per annum] [specify other method of calculation]
[Dividends are noncumulative.] [Dividends are cumulative from [specify
date].]
Dividend Payment Dates:
[months and dates], commencing [date]
Conversion Rights:
[The Securities are not convertible.]
[The Securities will be [subject to mandatory conversion] [convertible
[at the option of the holder thereof] [at the option of the Company]] into
shares of Common Stock of the Company [Describe conversion provisions, including
the conversion price and adjustments thereto.]]
Ranking:
[The Securities will rank senior with respect to the payment of
dividends and the distribution of assets upon liquidation to any
shares of the Company's Series A Junior Participating Preferred Stock
and any series of Preferred Stock which by its
SCHEDULE II
Page 2
terms is expressly made junior to the Securities. The Securities will
rank on a parity with respect to the payment of dividends and the
distribution of assets upon liquidation with any other series of
Preferred Stock.]
[The Securities will rank on a parity with respect to the payment of
dividends and the distribution of assets upon liquidation to any shares of the
Company's Series A Junior Participating Preferred Stock and any series of
Preferred Stock which by its terms is expressly made junior to any other series
of Preferred Stock. The Securities will rank junior with respect to the payment
of dividends and the distribution of assets upon liquidation with any other
series of Preferred Stock.]
Liquidation Rights:
In the event of any voluntary or involuntary liquidation, dissolution
or winding up of the Company, the holders of the Securities will be entitled to
receive out of the assets of the Company available for distribution to
stockholders $______ per share in cash plus accrued and unpaid dividends before
any distribution is made to the holders of the Common Stock or any other stock
of the Company ranking junior to the Securities as to the distribution of assets
upon liquidation, dissolution or winding up of the affairs of the Company.
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 [on or after
_________, _________ at the following redemption prices: If [redeemed
on or before _________, $___, and if] redeemed during the 12-month
period beginning ___________,
Year Redemption Price
and thereafter at $___ per share, together in each case with accrued
and unpaid dividends to the redemption date]
[on any dividend payment date falling on or after ____________,
___________, at the election of the Company, at a redemption price
equal to the $___, plus accrued and unpaid dividends 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]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Securities are entitled to the benefit of a sinking fund to
retire _____ shares on ______ in each of the years _____ through ____
at $___ per share plus accrued and unpaid dividends] [, together with
[cumulative] [non-cumulative]
SCHEDULE II
Page 3
redemptions at the option of the Company to retire an additional _____
shares in the years ____ through ____ at $___ per share plus accrued
and unpaid dividends.]
Voting Right Provisions:
[No voting rights except as specified in the Company's Restated
Certificate of Incorporation.]
[In addition to the voting rights specified in the Company's Restated
Certificate of Incorporation, the Securities [specify voting rights].]
If the Securities are Depositary Shares, specify the following:
Depositary:
Deposit Agreement:
Deposit Agreement dated as of ________, _____, between the Company and
the Depositary.
Terms of Deposit:
Each Depositary Share will represent ___ of [one] share of the
Preferred Shares described above. [Insert of other relevant terms.]
If the Securities are Warrants, the terms thereof are as follows:
Warrant Agent:
Warrant Agreement:
Warrant Agreement dated as of ___________, ____, between the Company
and the Warrant Agent.
Exercise Price:
$_____ per share, subject to adjustment as provided in the Warrant
Agreement.
Expiration Date:
Terms of Exercise:
[The Warrants may be exercised at any time [on or after ________] and
prior to the close of business on the Expiration Date.]
Firm Closing Date:
[Time and date], ____
SCHEDULE II
Page 4
Closing Location:
Black Out Period:
[None]
[For a period beginning at the time of execution of the Terms Agreement and
ending 90 days thereafter, [the Company will not, directly or indirectly,
offer, sell, contract to sell or otherwise dispose of Common Shares or
securities representing, convertible into or exchangeable for, or any
rights to purchase or acquire, Common Shares, other than (1) pursuant to
its employee stock option and restricted stock plans or its directors'
stock plan, each as in effect at the time of execution of the Terms
Agreement, (2) pursuant to the exchange of options granted under its
employee stock option and restricted stock plans or its directors' stock
plan, (3) pursuant to the exercise of warrants outstanding on the date
hereof, (4) pursuant to the exchange of exchangeable shares outstanding on
the date hereof, (5) pursuant arrangements made with respect to any person
who becomes an employee of the Company, (6) pursuant to the Junior
Preferred Rights and (7) pursuant to proposed acquisitions and other
transactions described in [insert applicable Exchange Act
report/Prospectus]] [the Company will not, directly or indirectly, offer,
sell, contract to sell or otherwise dispose of Preferred Shares, Depositary
Shares or securities representing, convertible into or exchangeable for, or
any rights to purchase or acquire, Preferred Shares or Depositary Shares,
other than pursuant to the Junior Preferred Rights.]]
[Insert terms, if other than as above]
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.
