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EXHIBIT 99.5
DEED OF UNDERTAKING
NEWMONT MINING CORPORATION
NORMANDY MINING LIMITED
ABN 86 009 295 765
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CONTENTS
PAGE
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1. DEFINITIONS AND INTERPRETATION...................... 2
1.1 Definitions.................................... 2
1.2 Interpretation................................. 5
2. CONDITION PRECEDENT................................. 5
3. NON SOLICITATION.................................... 5
4. NORMANDY UNDERTAKING................................ 7
4.1 Background..................................... 7
4.2 Undertaking.................................... 8
4.3 Limitation on Payment.......................... 9
4.4 Cap............................................ 10
4.5 Demand for Payment............................. 10
4.6 Security Bond.................................. 10
5. FACILITATION OF OFFER............................... 11
5.1 Abridgement of Time............................ 11
5.2 Consultation................................... 12
6. REPRESENTATIONS AND WARRANTIES...................... 12
6.1 Warranties by Normandy......................... 12
6.2 Indemnity...................................... 12
6.3 Disclosure..................................... 12
6.4 Reliance....................................... 13
6.5 Warranty Breach Notification................... 13
6.6 Proceedings for Warranty Claim................. 13
6.7 Liability Limitations.......................... 13
6.8 Certification of Representations and Warranties 14
6.9 No Assignment.................................. 14
7. CONDUCT OF BUSINESS BY NORMANDY..................... 14
8. NEWMONT'S WARRANTIES................................ 15
8.1 Warranties..................................... 15
8.2 Indemnity...................................... 16
9. PUBLIC ANNOUNCEMENT................................. 16
10. NOTICES............................................. 16
10.1 When Notices are Given......................... 16
10.2 Addresses for Notices.......................... 17
11. AMENDMENT AND ASSIGNMENT............................ 18
11.1 Amendment..................................... 18
11.2 Assignment.................................... 18
12. GENERAL............................................. 18
12.1 Governing Law................................. 18
12.2 Liability for Expenses........................ 18
12.3 Counterparts.................................. 19
12.4 Attorneys..................................... 19
12.5 Severability.................................. 19
12.6 Entire Agreement.............................. 19
12.7 Normandy Board Resolution..................... 19
12.8 Obligation to Enforce......................... 20
SCHEDULE 1--AGREED ANNOUNCEMENTS........................ 21
SCHEDULE 2--NORMANDY WARRANTIES......................... 22
DEED OF UNDERTAKING
DATED
PARTIES
1. NEWMONT MINING CORPORATION of 0000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx,
Xxxxxxxx 00000, Xxxxxx Xxxxxx of America (NEWMONT)
2. NORMANDY MINING LIMITED ABN 86 009 295 765 of 000 Xxxx Xxxxxx, Xxxxxxxx,
Xxxxx Xxxxxxxxx, 0000, Xxxxxxxxx (NORMANDY)
RECITALS
A. Normandy is the subject of a takeover bid by AngloGold Limited (ANGLOGOLD)
under which AngloGold has offered 2.15 AngloGold shares for every 100
Normandy Shares.
B. The offer price under AngloGold's Bid represents a premium of 29% to the
market price of Normandy shares immediately before the AngloGold Bid was
announced.
C. Newmont is considering making or procuring a related body corporate or
limited liability company (which is part of the Newmont group of companies)
to make an off-market bid to acquire all the Normandy Shares upon the terms
and conditions contained in the Agreed Announcements (BID).
D. The value of the offer under the Bid to acquire all Normandy securities
represents a 20.92% premium to the value of AngloGold's Bid immediately
before the Bid was announced.
E. Newmont has represented to Normandy that it is a pre-requisite to Newmont
making or procuring the making of the Bid that Normandy enters in to this
Deed.
F. Normandy and its directors believe that significant benefits will flow to
Normandy and its shareholders if the Bid is made.
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THE PARTIES AGREE
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this document, unless the context otherwise requires:
AGREED ANNOUNCEMENTS means the announcements of Newmont and Normandy in the
terms set out in Schedule 1 to this Deed or in such other terms as the parties
may jointly approve which, in relation to the announcement of Normandy,
includes the recommendation of the Normandy Board of the Bid in terms
acceptable to Newmont.
ANGLOGOLD'S BID means the off market bid of AngloGold constituted by the
Bidder's Statement dated 16 October 2001 and the Supplementary Bidder's
Statement dated 1 November 2001.
ASIC means the Australian Securities and Investments Commission.
ASX means the Australian Stock Exchange Limited.
BIDDER means Newmont or the related body corporate or the limited liability
company (which is a part of the Newmont group of companies) identified in the
Agreed Announcements as being the company making the Bid.
BUSINESS DAY means a day that is not a public holiday in Sydney or Adelaide,
Australia or New York, New York, United States of America or a Saturday or
Sunday.
COMPETING TAKEOVER PROPOSAL means any proposal or offer (not including
AngloGold's Bid but including any increase or proposed increased by AngloGold
of the consideration offered under AngloGold's Bid) with respect to any
transaction (by purchase, merger, amalgamation, arrangement, business
combination, liquidation, dissolution, recapitalisation, take-over bid or
otherwise) that would, if completed substantially in accordance with its terms,
result in any person (or group of persons) other than Newmont and its
Subsidiaries acquiring:
(a) assets of Normandy and/or its Subsidiaries that have, individually or
in the aggregate, a market value exceeding 15% of the market value of all
the assets of Normandy and its Subsidiaries (taken as a whole); or
(b) 25% or more of the voting shares of Normandy.
CONFIDENTIALITY AGREEMENT means the agreement dated 18 October 2001 between
Normandy and Newmont.
COSTS DISPUTE means any dispute between the parties concerning any payment
or reimbursement which Normandy has to make to Newmont in accordance with
clause 4.1(b)(2).
GOVERNMENTAL AGENCY means any:
(a) government or governmental, semi-governmental or judicial entity or
authority; or
(b) minister, department, office, commission, delegate, instrumentality,
agency, board, authority or organisation of any government.
It also includes any regulatory organisation established under statute or any
stock exchange.
MATERIAL ADVERSE EFFECT WHEN USED IN RELATION TO AN ENTITY means a change,
effect, event or development that has had, is or is reasonably expected to
have, a material adverse effect on the business, financial or trading position
or condition, results of operations, assets or liabilities, profitability or
prospects of that entity and its related bodies corporate, taken as a whole,
the value or financial effect of which (taken together with all other adverse
effects which have occurred and after deducting the value or financial effect
of all positive effects which
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have occurred) is not less than an amount equal to 7.5% of the value of the
total assets of the entity or where the effect is on revenue account 7.5% of
the total revenue of the entity in each case on a consolidated basis as per its
most recently published audited accounts. Adverse and positive effects solely
due to fluctuations in the price of gold or other commodities or rates of
inflation shall be ignored.
NEWMONT'S TAKEOVER BID or BID means a takeover bid publicly proposed by
Newmont or Bidder that satisfies the condition precedent in clause 2.
NORMANDY BOARD means the board of directors of Normandy.
NORMANDY BOARD RESOLUTION means the the resolution of the Normandy Board
which is referred to in clause 12.7 of this Deed.
NORMANDY DUE DILIGENCE MATERIAL means material provided by Normandy to
Newmont or its financial or legal advisors as recorded in Exhibit 1 to this
Deed and all other written information provided since 1 October 2001 by or on
behalf of Normandy to Newmont or any of its financial and legal advisors or
employees, agents or contractors concerning Normandy.
NORMANDY SENIOR MANAGEMENT means the Normandy Group Legal Counsel and the
Normandy Group Executives of Finance, Operations, E-Business, Exploration,
Corporate and Development.
NORMANDY SHARE means an ordinary share in the capital of Normandy.
SECURITY BOND means in unconditional guarantee given by Australia and New
Zealand banking Group Limited and provided by Normandy to Newmont in accordance
with the terms of this Deed.
SUBSIDIARIES OR SUBSIDIARIES means in respect of a person, each of the
corporate entities, partnerships and other entities over which it exercises
direction or control.
SUPERIOR TAKEOVER PROPOSAL means a BONA FIDE Competing Takeover Proposal in
respect of which the Normandy Board has determined, acting reasonably and in
good faith, would, it consummated in accordance with its terms, be reasonably
likely to result in a transaction more favorable to the holders of Normandy
Shares than the Newmont Takeover Bid, such determination having been made in
good faith by the Normandy Board:
(i) after consultation with its financial and legal advisors; and
(ii) after taking into account all material legal, financial, regulatory
and other aspects of such proposal and the party making such proposal
(including the prospects that the proposal will complete)
WARRANTY means the representations and warranties given by Normandy to
Newmont pursuant to this Deed, as set out in Schedule 2 or by Newmont to
Normandy in accordance with clause 7.
$ means Australian dollars.
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1.2 INTERPRETATION
Headings are for convenience only and do not affect interpretation. The
following rules also apply in interpreting this document except where the
context makes it clear that a rule is not intended to apply:
(a) A reference to a person includes any type of entity or body of
persons, whether or not it is incorporated or has a separate legal identity,
and any executor, administrator or successor in law of the person.
(b) A singular word includes the plural and vice versa.
(c) A word which suggests one gender includes the other genders.
(d) If a word is defined, another part of speech has a corresponding
meaning.
(e) Words or expressions which are defined in the Corporations Act have
the same meanings in this Deed.
2. CONDITION PRECEDENT
(a) Normandy shall have no obligation of any kind unless on the date this
Deed is executed by both parties, Newmont publicly proposes, by means of an
announcement to the Australian Stock Exchange, to make or cause Bidder to make
the Bid in accordance with the Agreed Announcements.
(b) Newmont shall have no obligation of any kind under this Deed until this
Deed is executed by Normandy and Normandy provides Newmont with a certified
copy of the Normandy Board Resolution.
3. NON SOLICITATION
(a) Normandy shall not, nor shall it permit any of its subsidiaries to, nor
shall it authorise or permit any officer, director or employee of, or require
any investment banker, attorney or other advisor, agent or representative of
Normandy or any of its subsidiaries to:
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(i) directly or indirectly solicit, initiate or encourage the making of
(including by way of furnishing non-public information) any inquiries or
proposals regarding any Competing Takeover Proposal; or
(ii) accept or enter into any agreement, arrangement or understanding
with respect to any Competing Takeover Proposal or directly or indirectly
participate in any discussions or negotiations regarding or furnish to any
person any information with respect to, or take any other action to
facilitate any inquiries or the making of any proposal that constitutes, or
may reasonably be expected to lead to, a Competing Takeover Proposal; or
(iii) approve or recommend any Competing Takeover Proposal.
(b) Paragraphs (a) (ii) and (iii) do not restrict Normandy or the Normandy
Board from taking or refusing to take any action with respect to a BONA FIDE
Competing Takeover Proposal provided that the Normandy Board has determined in
good faith and acting reasonably after consultation with its financial advisors
and outside legal counsel, that such BONA FIDE Competing Takeover Proposal,
that was not solicited, initiated or encouraged by Normandy in contravention of
clause 3(a)(i) and did not otherwise result from a breach or deemed breach of
paragraph (a)(i) or (ii), is a Superior Takeover Proposal.
(c) Normandy shall upon the execution of this Deed:
(i) immediately cease and cause to be terminated any existing discussions
or negotiations, directly or indirectly, with any person with respect to (i)
any Competing Takeover Proposal, or (ii) any transaction (which, for greater
certainty, includes any Competing Takeover Proposal) that may adversely
affect or reduce the likelihood of the successful completion of the Newmont
Takeover Bid; and
(ii) not, directly or indirectly, waive or vary any terms or conditions
of any confidentiality or standstill agreement that it has, as of the date
hereof, entered into with any person considering a Competing Takeover
Proposal and shall immediately request the return (or the deletion from
retrieval systems and data bases or the destruction) of all information.
(d) The obligations of Normandy under paragraphs (a)(ii) and (iii) and (c)
do not restrict Normandy or the Normandy Board from taking or failing to take
any action where to do so would, in the determination of the Normandy Board,
made in good faith and acting reasonably after consultation with its financial
advisors and outside legal advisors, constitute or would be likely to
constitute a breach of a fiduciary or statutory duty or obligation imposed on
the members of the Normandy Board.
(e) Normandy has no obligation under clause 3 in any of the following
circumstances:
(i) Newmont has not by 1 January 2002 (or such extended time as may be
permitted by the Corporations Act or the Australian Securities and
Investments Commission) served on Normandy a Bidder's Statement relating to
the Bid;
(ii) offers pursuant to Newmont's Bid are not dispatched to Normandy
shareholders on or before 16 January 2002 (or such extended time as may be
permitted by the Corporations Act or the Australian Securities and
Investments Commission);
(iii) Newmont withdraws its Bid, after the Bid is made; or
(iv) Newmont's Bid closes,
unless the circumstances in (i) or (ii) arise because the certificate
contemplated by clause 6.8 has not been provided by Normandy.
(f) Without limiting the foregoing, it is understood that any breach of the
restrictions in paragraph (a) or (c) by any officer or director of Normandy or
any of its subsidiaries or investment bankers, attorneys or other advisors or
representatives shall be deemed to be a breach by Normandy of paragraph (a) or
(c).
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4. NORMANDY UNDERTAKING
4.1 BACKGROUND
(a) Newmont has represented to Normandy that its reasonable estimate of its
reasonable opportunity costs connected with the proposed Bid together with
other out of pocket expenses and costs exceeds 1% of the transaction value of
the Bid determined on the date on which the Bid is announced and Normandy has
no basis to question such estimate and accordingly has relied on such estimate.
(b) Newmont is induced to make the Agreed Announcement on the basis that, in
the circumstances provided for by clause 4, Normandy shall pay to Newmont its
costs and expenses connected with the Bid and its reasonable opportunity costs,
subject to the cap in clause 4.4.
4.2 UNDERTAKING
Normandy undertakes to Newmont that if:
(a) a Competing Takeover Proposal is announced or open for acceptance
and, pursuant to that Competing Takeover Proposal, the bidder acquires a
relevant interest in more than 50% of all Normandy's Shares and the
Competing Takeover Proposal becomes free from any defeating conditions
either before or after the end of the applicable offer period; or
(b) the Normandy Board fails to recommend Newmont's Takeover Bid in
Normandy's target's statement in response to Newmont's Takeover Bid or
withdraws or modifies in a manner adverse to Newmont a recommendation
previously made in respect of the Bid (or proposed Bid) or enters into any
agreement, arrangement or understanding to recommend or support a Competing
Takeover Proposal or recommends a Competing Takeover Proposal,
then subject to this clause 4, Normandy must pay Newmont the Compensating
Amount.
(c) The Compensating Amount means $38.33 million, being 1% of the Bid
value determined on the date the Bid is announced, to compensate Newmont for
the following:
(i) advisory costs, legal costs (on a solicitor own client basis),
costs of management and directors' time and costs of convening and
holding any necessary Newmont stockholders meetings;
(ii) out of pocket expenses incurred after 1 August 2001 including,
without limitation, airfares, hotel accommodation, meals and associated
expenses incurred by Newmont employees, advisors and agents;
(iii) costs incurred by Newmont in negotiating, planning and
implementing the Bid;
(iv) reasonable opportunity costs incurred by Newmont in pursuing the
Bid or in not pursuing other alternative acquisitions or strategic
initiatives; and
(v) any reputational damages associated with a failed transaction and
the implications of those damages in the event Newmont seeks to execute
alternative acquisitions or financings in the future,
in each case, incurred or suffered by Newmont as a result of Newmont having
entered into this Deed or making an Agreed Announcement or pursuing Newmont's
Takeover Bid and related transactions, including all preparatory investigations
and due diligence undertaken in connection therewith since 1 August 2001.
4.3 LIMITATION ON PAYMENT
Normandy will not have any obligation under clause 4.2(b) in any of the
following circumstances:
(a) the terms and conditions of the Bid when made are materially less
favourable to Normandy shareholders than the terms and conditions thereof
specified in the Agreed Announcement;
(b) Newmont shareholders vote against the resolution to approve the issue
of Newmont securities under the Bid; or
(c) the Treasurer of the Commonwealth of Australia determines not given
an approval to the Bid, under the Foreign Acquisitions and Takeovers Act
(Cth) on terms acceptable to Newmont,
unless another person, including AngloGold, makes a Competing Takeover Proposal
which becomes free from any defeating conditions either before or after the end
of the applicable offer period.
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4.4 CAP
The maximum aggregate liability of Normandy under clause 4.2 is the
Compensating Amount.
4.5 DEMAND FOR PAYMENT
Any demand for payment of the Compensating Amount must:
(a) be in writing; and
(b) certify the amount and provide reasonable supporting details thereof
except for opportunity costs in respect of which Normandy will rely on the
representation provided by Newmont which is referred to in clause 4.1(a).
Payment must, subject to clause 4.4, be made by Normandy within 3 Business Days
of receipt of the demand therefor by Newmont.
4.6 SECURITY BOND
(a) As security for its obligation under clause 4.2, Normandy must as soon
as reasonably practicable but in any event by no later than 28 November 2001
provide a Security Bond to Newmont.
(b) Newmont shall have the right, without prejudice to any other remedy
available to Newmont, to call upon the Security Bond if Normandy fails to
comply with clause 4.2. Newmont agrees to return the Security Bond to Normandy
when Normandy's obligations under clause 4.2 have been observed and complied
with to the satisfaction of Newmont or otherwise have terminated in accordance
with this Deed.
(c) Normandy shall not take any steps whatsoever to:
(i) injunct the payment of the amount secured by the Security Bond in
respect of any claim that may be made under the Security Bond by Newmont; or
(ii) restrain Newmont from exercising its rights under the Security Bond
in accordance with this clause.
(d) The Security Bond shall be in such form as Normandy and Newmont
reasonably agree.
(e) (i) Subject to paragraph (ii), the term of the Security Bond must be 18
months from the date of this Deed;
(ii) Normandy must extend the term of the Security Bond, in the event that
there is a dispute between Normandy and Newmont concerning the payment
pursuant to clause 4 until a date which is 10 Business Days after the date
the dispute is finally resolved.
5. FACILITATION OF OFFER
5.1 ABRIDGEMENT OF TIME
(a) For the purposes of item 6 in section 633(1) of the Corporations Act,
subject to:
(i) Newmont providing Normandy with an advanced draft of its Bidder's
Statement for review when prepared and a final draft of its Bidder's
Statement not less than three Business Days before it is lodged with the
Australian Securities and Investments Commission under item 2 of section
633(1) of the Corporations Act;
(ii) Newmont taking account of all reasonable comments provided to it by
Normandy prior to finalising its Bidder's Statement; and
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(iii) Newmont's Bidder's Statement complying with applicable law,
Normandy will agree that the offers under Newmont's Takeover Bid may be sent
to Normandy shareholders, at the option of Newmont, on the day on which the
Bidder's Statement relating to Newmont's Takeover Bid is sent to Normandy or
within 5 Business Days after that day.
(b) Normandy will use its best endeavours to distribute a Target's Statement
in relation to Newmont's Takeover Bid as soon as practicable after Newmont's
Bidder's Statement has been sent to Normandy.
5.2 CONSULTATION
Normandy will consult with Newmont a reasonable time in advance of any
action which may cause a non-fulfilment of any of the conditions of Newmont's
Takeover Bid and Newmont will act reasonably in relation to the waiving of any
of those conditions in respect of facts or circumstances which have an
immaterial effect on Normandy and its subsidiaries taken as a whole.
6. REPRESENTTIONS AND WARRANTIES
6.1 WARRANTIES BY NORMANDY
Normandy represents and warrants to Newmont in the terms set out in Schedule
2.
6.2 INDEMNITY
Normandy indemnifies Newmont against any claim, loss, liability, cost or
expense, direct or indirect, which Newmont is liable for arising from a breach
by Normandy of this Deed including a breach of Warranty.
6.3 DISCLOSURE
Each Warranty is qualified by and subject to:
(a) any matter which is disclosed in the Normandy Due Diligence Material
in sufficient detail to enable Newmont to have a reasonable understanding of
the nature and the import of the matter which is disclosed; and
(b) any announcement that Normandy has made either to ASX or ASIC between
1 July 2001 and the date of this Deed; and
(c) any information which, at the date of this Deed, is publicly
available or which, upon inspection of any register maintained by any
Governmental Agency and available to the public (whether with or without the
payment of a fee) would be ascertainable by Newmont.
6.4 RELIANCE
Normandy acknowledges that Newmont has relied on the Warranties for the
purpose of executing this Deed and making the Agreed Announcements and pursuing
the Bid.
6.5 WARRANTY BREACH NOTIFICATION
If prior to the end of the offer period under the Bid, Normandy becomes
aware of any breach or potential breach of a Warranty, Normandy must notify
Newmont of this and provide reasonable particulars of the breach or potential
breach.
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6.6 PROCEEDINGS FOR WARRANTY CLAIM
Any claim by Newmont for a breach of any Warranty will be taken to be waived
or withdrawn and will be barred and unenforceable unless:
(a) reasonable details of the claim are notified in writing to Normandy
within six months of the date of this Deed; and
(b) within six months after the date the claim is first notified to
Normandy proceedings against Normandy in respect of the claim have been
commenced by Newmont and initiating process served on Normandy.
6.7 LIABILITY LIMITATIONS
(a) Despite any other provisions of this Deed the representations and
warranties given by Normandy do not survive the consummation of the Newmont
Bid; that is when the Newmont Bid conditions have either been satisfied or
waived.
(b) In no event shall Normandy be liable for loss of profit, loss of
revenue, loss of opportunity or any other kind of indirect or consequential
loss or damage in connection with a breach of Warranty claim.
(c) A claim for a breach of Warranty cannot be made unless that claim and
all other claims for breach of Warranty, in the aggregate, exceed the amount
paid to Newmont under clause 4 at the time the claim is made and then only in
respect of the excess.
(d) Normandy's liability under this clause 6 shall be limited to an amount
in the aggregate not exceeding $100 million.
6.8 CERTIFICATION OF REPRESENTATIONS AND WARRANTIES
The obligations of Newmont to consummate the Bid shall be subject to the
representations and warranties of Normandy under this Deed being true and
correct in all material respects (except where already qualified as to
materiality or the absence of a Material Adverse Effect), on and as of the date
of consummation as if made on and as of such date (except to the extent such
representations and warranties refer solely as of an earlier date, in which
event such representations and warranties shall be true and correct to such
extent as of such earlier date), and Newmont shall have received a certificate
of Normandy addressed to Newmont and dated the date of consummation, signed on
behalf of Normandy by a senior officer of Normandy (on Normandy's behalf and
without personal liability), confirming the same as at the date of consummation.
6.9 NO ASSIGNMENT
The rights of Newmont under this clause 6, including the benefit of the
Warranties given by Normandy, are personal to Newmont. They cannot be assigned,
transferred, charged, made the subject of any trust or otherwise dealt with
(except to or for the benefit of Bidder) without the written consent of
Normandy which consent may be withheld in Normandy's absolute discretion.
7. CONDUCT OF BUSINESS BY NORMANDY
(a) Prior to the consummation of Newmont's Takeover Bid, unless Newmont
otherwise agrees in writing or as otherwise expressly contemplated or permitted
by this Deed, Normandy shall, and cause each of its Subsidiaries to,
(i) in all material respects conduct its business only in, not take any
action except in, and maintain its facilities in, the ordinary course of
business consistent with past practice, and
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(ii) maintain and preserve its business organisation and its material
rights and franchises and use all commercially reasonable endeavours to
retain the services of its officers and key employees and use all
commercially reasonable endeavours to maintain relationships with customers,
suppliers, lessees, joint venture partners, licensees, lessors, licensors
and other third parties, and maintain all of its material operations assets
in their current condition (normal wear and tear excepted) to the end that
the goodwill and ongoing business of Normandy and its Subsidiaries shall not
be impaired in any material respect.
8. NEWMONT'S WARRANTIES
8.1 WARRANTIES
(a) Newmont represents and warrants to Normandy that, at the date of this
Deed:
(i) it is duly incorporated under the laws of the place of its
incorporation;
(ii) it has the power and authority to execute and exchange this Deed and
perform and observe all its terms;
(iii) this Deed has been duly executed by Newmont and is a legal, valid
and binding agreement of Newmont enforceable against it in accordance with
its terms;
(iv) Newmont is not bound by any contract which may restrict Newmont's
right or ability to enter into or perform this Deed;
(v) no resolutions have been passed nor has any other step been taken or
legal proceedings commenced or threatened against it for its winding up or
dissolution or for the appointment of a liquidator, receiver, administrator
or similar officer over any or all of its assets, and no regulatory action
of any nature has been taken, which would prevent, inhibit or otherwise have
a material adverse effect on its ability to fulfil its obligations under
this Deed.
(b) LIABILITY LIMITED
Despite any other provision of this Deed, the representations and warranties
given by Newmont do not survive consummation of the Newmont Bid; that is when
Newmont has acquired a relevant interest in at least 50.1% of Normandy voting
shares and the Newmont Bid conditions have either been satisfied or waived.
8.2 INDEMNITY
Newmont indemnifies Normandy against any claim, loss, liability, cost or
expense, direct or indirect, which Normandy pays or is liable for arising from
a breach by Newmont of this Deed including a breach of a warranty given by
Newmont provided that in no event shall Newmont be liable for loss of profit,
loss of revenue, loss of opportunity or other kind of indirect or consequential
loss or damage in connection with a breach of Warranty claim.
9. PUBLIC ANNOUNCEMENT
(a) The parties will immediately after execution of this Deed make the
Agreed Announcements to Australian Stock Exchange Limited.
(b) The parties shall, as far as practicable, consult with one another as to
the terms of all press releases and other public announcements and
presentations by Newmont or Normandy relating to the Newmont Bid while the
Normandy Board recommends the Newmont Bid, provided, however, that the
foregoing shall not preclude communications or disclosures, after reasonable
prior consultation with the other party:
(i) by Newmont relating to offerings of Newmont securities; or
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(ii) necessary to implement the provisions of this Deed or to comply with
applicable law or the requirements of any governmental agency (including the
Australian Stock Exchange Limited and the Securities Exchange Commission).
(c) Normandy will lodge a copy of this Deed with the Australian Stock
Exchange Limited at the same time as the Agreed Announcements are made.
10. NOTICES
10.1 WHEN NOTICES ARE GIVEN
A notice, demand or other communication under this document is only
effective if it is in writing, signed and either left at the addressee's
address or sent to the addressee by mail or fax. If it is sent by mail from an
address within Australia, it is taken to have been received 3 working days
after it is posted. If it is sent by mail from an address outside Australia, it
is taken to have been received when the addressee actually receives it in full
and in legible form. If it is sent by fax, it is taken to have been received on
the date of delivery, upon confirmation of receipt.
10.2 ADDRESSES FOR NOTICES
A person's address and fax number are those set out below, or as the person
notifies the sender:
NORMANDY MINING LIMITED
Address: 000 Xxxx Xxxxxx
Xxxxxxxx XX 0000
Fax no: 08 8303 1900
Attention: Company Secretary
With copy to: General Counsel (Normandy Mining Limited) at
Address: 000 Xxxx Xxxxxx
Xxxxxxxx XX 0000
Fax no: 08 8303 1904
NEWMONT MINING CORPORATION
Address: 0000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx XX 00000
United States of America
Fax no: 1 303 837 5810
Attention: General Counsel
With copy to: Xxxxx X Xxxx Esq
Address: Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10019-6150
United States of America
Fax no: 1 212 403 2309
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11. AMENDMENT AND ASSIGNMENT
11.1 AMENDMENT
This document can only be amended, supplemented, replaced or novated by
another document signed by the parties.
11.2 ASSIGNMENT
Subject to clause 6.9 a party may only dispose of, declare a trust over or
otherwise create an interest in its rights under this document with the consent
of the other party.
12. GENERAL
12.1 GOVERNING LAW
(a) This document is governed by the law in force in New South Wales,
Australia.
(b) Each party submits to the non-exclusive jurisdiction of the Courts
exercising jurisdiction in New South Wales, Australia and any Court that may
hear appeals from any of those Courts, for any proceedings in connection with
this document and waives any right it might have to claim that those Courts are
an inconvenient forum.
12.2 LIABILITY FOR EXPENSES
Subject to this document, each party must pay its own expenses incurred in
negotiating, executing, stamping and registering this document.
12.3 COUNTERPARTS
This document may be executed in counterparts.
12.4 ATTORNEYS
Each person who executes this document on behalf of a party under a power of
attorney declares that he or she is not aware of any fact or circumstance that
might affect his or her authority to do so under that power of attorney.
12.5 SEVERABILITY
If the whole or any part of a provision of this Deed is void, unenforceable
or illegal in a jurisdiction, it is severed for that jurisdiction. The
remainder of this Deed has full force and effect and the validity or
enforceability of that provision in any other jurisdiction is not affected.
This clause has no effect if the severance alters the basic nature of this Deed
or is contrary to public policy.
12.6 ENTIRE AGREEMENT
This Deed constitutes the entire agreement of the parties about its subject
matter and supersedes all previous agreements, understandings and negotiations
on that subject matter, other than the Confidentiality Agreement.
12.7 NORMANDY BOARD RESOLUTION
(a) Normandy will provide to Newmont a certified copy of a resolution of the
Normandy Board, which has been unanimously passed at a meeting of the Normandy
Board at which each director of Normandy was present, confirming that the
Normandy Board approves the execution of this Deed and the provisions of clause
4, and recommends Newmont's Takeover Bid, as being in the best interests of
Normandy and its shareholders.
(b) Newmont agrees that it will not commence any legal action against the
Normandy Board or any member thereof in relation to the resolution of the
Normandy Board to approve and commit Normandy to enter into this Deed.
12
12.8 OBLIGATION TO ENFORCE
In the event that a third party seeks in relation to this Deed either from a
Court, the Takeovers Panel or a regulatory authority any orders, judgment or
other action the effect of which if granted would be to diminish, restrict,
modify, waive or vary any obligation imposed on Normandy under this Deed,
including the obligation under this clause 12.8, then Normandy will:
(a) vigorously defend such action or proceeding before a Court, the
Takeovers Panel or regulatory authority; and
(b) at Newmont's cost permit Newmont to participate with Normandy in such
action or proceeding.
13
SCHEDULE 1
AGREED ANNOUNCEMENTS
14
SCHEDULE 2
NORMANDY WARRANTIES
1. SHARE CAPITAL
(a) ISSUED CAPITAL: As at 9 November 2001 there are 2,231,693,599 ordinary
shares issued in the capital of Normandy and 22,902,765 options over unissued
shares. Each such share is fully paid. These shares are the only shares issued
in the capital of Normandy as at 9 November 2001.
(b) ISSUE OF OTHER SECURITIES: Normandy is not obliged to issue or allot any
shares or other securities of Normandy and Normandy has not granted any person
the right to call for the issue or allotment of any shares or other securities
of Normandy other than as disclosed publicly or in the Normandy Due Diligence
Material.
(c) SUBSIDIARIES: All the issued shares in the capital of each wholly owned
Subsidiary of Normandy have been validly issued and are fully paid, and are
owned free and clear of all pledges, claims, liens, charges, encumbrances and
security interests of any kind or nature whatsoever.
2. AUTHORITY OF NORMANDY
(a) ORGANISATION AND STANDING: Each of Normandy and each of its Subsidiaries
is a corporation, partnership or other legal entity duly organised and validly
existing under the laws of the jurisdiction in which it is organised and has
the requisite power and authority to carry on its business as now being
conducted. Each of Normandy and each of its Subsidiaries is duly qualified or
licensed to do business in each jurisdiction in which the nature of its
business or the ownership or leasing of its properties makes such qualification
or licensing necessary, other than where the failure to be so qualified or
licensed, either individually or in the aggregate, would not result in a
Material Adverse Effect upon Normandy.
(b) AUTHORITY: Normandy has taken all necessary action to authorise the
signing, delivery and performance of this Deed and the documents required under
this Deed in accordance with their respective terms.
(c) POWER TO AGREE: Normandy has power to enter into this Deed and perform
its obligations under it and can do so without the consent or approval of any
other person including, without limitation, the shareholders of Normandy.
(d) NO BREACH: The signing and delivery of this Deed and the performance by
Normandy of its obligations under it complies with Normandy's Constitution and
will not conflict with, or result in any breach of, or default (with or without
notice or lapse of time, or both) under, or give rise to a right of consent,
termination, purchase, cancellation or acceleration of any obligation or to
loss of any property, rights or benefits under, or result in the imposition of
any additional obligation under, or result in the creation of any lien upon any
of the properties or assets of Normandy or a Subsidiary under any contract,
instrument, permit, concession, franchise, licence, loan or credit agreement,
note, bond, mortgage, indenture, lease or other property agreement, partnership
or joint venture agreement or other legally binding agreement, whether oral or
written (CONTRACT), to which either Normandy or a Subsidiary is subject except
where any such conflicts, breaches, defaults, rights or liens individually, or
in the aggregate, would not result in a Material Adverse Effect.
(e) BOARD APPROVAL: The Normandy Board has unanimously approved this Deed
and the transactions and obligations imposed on Normandy under this Deed
including the recommendation of the Normandy Board which is contained in the
Agreed Announcements.
3. ACCURACY OF INFORMATION
(a) So far as the Normandy Board and Normandy Senior Management are aware,
the Normandy Due Diligence Material together with any information about
Normandy which is in the public domain at the date of this Deed comprises all
information that investors and their professional advisers would reasonably
require to make an informed assessment of the assets and liabilities, financial
position and performance, profits and losses and prospects of Normandy and the
Subsidiaries taken as a whole as at the date of this Deed.
(b) So far as the Normandy Board and Normandy Senior Management are aware,
the information contained in the Normandy Due Diligence Material is accurate in
all material respects. None of that information is misleading in any material
particular whether by inclusion of misleading information or the omission of
material information or both.
15
(c) Normandy has complied with ASX listing rule 3.1 in relation to
continuous disclosure and has (to the extent necessary to date) and will
continue to comply with Division 4 of Part 6.5 and Chapter 6B of the
Corporations Act.
(d) The Normandy Board and the Normandy Senior Management are not aware of
any information being information otherwise liable to be disclosed under ASX
listing rule 3.1 which has not been publicly disclosed by Normandy in reliance
on the carve out from disclosure which is contained in ASX listing rule 3.1
which has not been provided to the expert for review in connection with the
preparation of the independent expert's report which is to accompany the
Normandy Target's Statement which will be given in response to the AngloGold
Bidder's Statement dated 16 October 2001 and AngloGold's F-4 Registration
Statement dated 9 November 2001.
(e) Without limiting the generality of paragraph (c), as far as the Normandy
Board and the Normandy Senior Management are aware, none of the disclosures
Normandy has lodged with either ASIC or ASX since 30 June 2001, including
without limitation the audited financial statements of Normandy and its
Subsidiaries as at 30 June 2001, as of their respective dates, contained any
untrue statement of material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances in which they were made, not misleading, except to
the extent that such statements have been modified or superseded by later
lodgements on behalf of Normandy or a Subsidiary with either ASIC or ASX.
(f) As at the date of this Deed, the Normandy Board and Normandy Senior
Management are not aware of:
(i) any material change in its financial position or the financial
position of Normandy and its Subsidiaries which change would constitute a
Material Adverse Effect upon Normandy when compared with the financial
position of Normandy and Normandy and its subsidiaries as disclosed in the
audited financial statements of Normandy and Normandy and its Subsidiaries
as at 30 June 2001; or
(ii) any event, change, effect or development that individually or in the
aggregate would result in a Material Adverse Effect upon Normandy.
4. CONDUCT OF BUSINESS
(a) As far as the Normandy Board and the Normandy Senior Management are
aware, Normandy holds all material authorisations which are necessary or
required to enable it to conduct its business as it has been conducted at the
date of this Deed and as the Normandy Board expects that business to continue
to be conducted, other than those authorisations the failure to so hold, either
individually or in the aggregate, would not result in a Material Adverse Effect
upon Normandy. The Normandy Board and the Normandy Senior Management are not
aware of any fact, matter or circumstance existing as at the date of this Deed
which has not been the subject of public disclosure which may have a Material
Adverse Effect upon Normandy in terms of its ability to continue to conduct its
business.
(b) Since 30 June 2001 there has not been any granting by Normandy or a
Subsidiary to any member of the Normandy Board or the Normandy Senior
Management of any increase in compensation, severance or termination pay,
except:
(i) in the ordinary course of business consistent with past practice; or
(ii) as was required under any employment agreement, severance or
termination agreement in effect as of 30 June 2001.
5. LITIGATION
(a) There is no suit, action, proceedings, prosecution, litigation,
arbitration proceeding or administrative or governmental investigation or
challenge pending or, to the knowledge of Normandy, threatened against Normandy
or a Subsidiary that, individually or in the aggregate, would:
(i) if adversely determined against Normandy would result in a Material
Adverse Effect; or
(ii) reasonably be expected to prevent or delay in any material respect
the consummation of Newmont's Takeover Bid.
16
(b) There is no judgment, decree, injunction, rule or order outstanding
against Normandy or a Subsidiary that, individually or in the aggregate, would
result in a Material Adverse Effect.
(c) All contracts material to the business of Normandy are valid and binding
obligations of Normandy or a Subsidiary and, to the knowledge, neither Normandy
nor a Subsidiary nor any other person which is a party to a contract referred
to in paragraph (a) in breach of or in default in respect of, nor has there
occurred an event or condition which with the passage of time or giving of
notice (or both) would constitute a default under or entitle any party to
terminate, accelerate, modify or call a default under, or trigger any
pre-emptive rights or rights of first refusal under, any such contract except
such breaches or defaults that, individually or in the aggregate, would not
have a Material Adverse Effect.
6. RESERVES/RESOURCES
As far as the Normandy Board and the Normandy Senior Management are aware,
there has been no material reduction in the aggregate amount of reserves or
resources of Normandy and its Subsidiaries, taken as a whole, from the amounts
set forth in Normandy's 2001 Annual Report except for such reductions in
reserves that have resulted from production in the ordinary course of business
or such reductions in resources that have resulted from reclassifications of
resources as reserves.
7. COMPLIANCE WITH LAWS
Neither Normandy nor a Subsidiary has, to the best of the knowledge and
belief of the Normandy Board and the Normandy Senior Management, breached or
failed to comply with any of its articles or other organisational documents or
by laws, or any statute, law, ordinance, regulation, rule, judgment, decree or
order applicable to its business or operations, except for:
(a) breaches and failures to comply therewith that, individually or in
the aggregate, would not result in a Material Adverse Effect; or
(b) breaches and failures to comply which have been publicly disclosed.
8. DISPOSITIONS OF COMPANY PROPERTY
Since 1 July 2001, neither Normandy nor a Subsidiary of Normandy has sold or
disposed of or ceased to hold or own any personal property, real property, any
interest or rights with respect to real property (including exploration or
production rights), any interest in a joint venture or other assets or
properties of Normandy or a Subsidiary of Normandy (COMPANY PROPERTY), other
than sales and dispositions of raw materials, obsolete equipment, mine output
and other inventories, and any interests or rights with respect to real
property having an individual fair market value of less than $250 million. No
Company Property whose fair market value on the date hereof is greater than
$250 million is subject to any pending sale or disposition transaction.
17
EXECUTED as a Deed.
SIGNED by NORMANDY MINING LIMITED by:
------------------------------------- ----------------------------------
Signature of Director Signature of Director/Secretary
------------------------------------- ----------------------------------
Name of Director (print) Name of Director/Secretary (print)
SIGNED by NEWMONT MINING
CORPORATION by:
-------------------------------------
-------------------------------------
Name
-------------------------------------
Title
18
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SECOND DEED OF UNDERTAKING
NEWMONT MINING CORPORATION
NORMANDY MINING LIMITED
ABN 86 009 295 765
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
19
CONTENTS
PAGE
----
1. DEFINITIONS AND INTERPRETATION..................................... 21
1.1 Definitions.................................................... 21
1.2 Interpretation................................................. 21
2. NEWMONT AGREEMENT.................................................. 22
3. CLAUSE 4.2 PAYMENT................................................. 22
4. RECOVERY OF PAYMENTS ALREADY MADE.................................. 22
5. DEED OF UNDERTAKING................................................ 22
20
SECOND DEED OF UNDERTAKING
DATED
PARTIES
1. NEWMONT MINING CORPORATION of 0000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx,
Xxxxxxxx 00000, Xxxxxx Xxxxxx of America (NEWMONT)
2. NORMANDY MINING LIMITED ABN 86 009 295 765 of 000 Xxxx Xxxxxx, Xxxxxxxx,
Xxxxx Xxxxxxxxx 0000, Xxxxxxxxx (NORMANDY)
RECITALS
A. Normandy and Newmont propose to enter into the Deed of Undertaking relating
to the proposal by Newmont to make an off-market takeover bid for all the
Normandy shares.
B. Newmont and Normandy have agreed to record in this Second Deed of
Undertaking the circumstances in which Newmont will not be entitled to
receive or, if it has already received, will be required to repay certain
payments under the Deed of Undertaking and a number of associated matters.
THE PARTIES AGREE
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this document, unless the context otherwise requires:
APPEAL RIGHTS means all rights of appeals and challenges available to a
party from a Court to a Court, from the Takeovers Panel to the Takeovers Panel
or from the Takeovers Panel to a Court, as Newmont in its absolute discretion
determines.
DEED OF UNDERTAKING means the document between Normandy and Newmont which is
dated on the same date as the date of this Deed and which is referred to in
Recital A to this Deed.
FINALLY DETERMINED or FINAL DETERMINATION means the final decision, order,
judgment or determination in relation to a Challenge after all appeals and
challenges to jurisdiction have been exercised or availed of, as deemed
appropriate by Newmont in its absolute discretion.
PAYMENT means any payment which Normandy is required to make to Newmont in
accordance with clause 4.2 of the Deed of Undertaking.
PROVISO means Normandy in consultation with Newmont taking all necessary
actions to vigorously defend any application or proceeding for orders,
judgments, determinations or declarations made under a Challenge before a Court
or the Takeovers Panel which, if granted, made or allowed would in any way
interfere with Normandy making the Payment in accordance with the terms of the
Deed of Undertaking; and Normandy, at Newmont's cost, seeking to join Newmont
as a party to such application and proceedings in which the Challenge is made
or brought; and Normandy, at Newmont's direction, initiating all Appeal Rights
from a decision of a Court or the Takeovers Panel which has the effect or
result of preventing the Payment from being made to Newmont.
1.2 INTERPRETATION
Headings are for convenience only and do not affect interpretation. The
following rules also apply in interpreting this document except where the
context makes it clear that a rule is not intended to apply:
21
(a) A reference to a person includes any type of entity or body of
persons, whether or not it is incorporated or has a separate legal identity,
and any executor, administrator or successor in law of the person.
(b) A singular word includes the plural and vice versa.
(c) A word which suggests one gender includes the other genders.
(d) If a word is defined, another part of speech has a corresponding
meaning.
(e) Words or expressions which are defined in the Corporations Act have
the same meanings in this Deed.
(f) Words or expressions which are defined in the Deed of Undertaking
have the same meanings in this Deed.
2. NEWMONT AGREEMENT
Each covenant or agreement on the part of Newmont, which is contained in
this Deed, is given by Newmont to Normandy for the benefit of Normandy and also
to be held by Normandy for and on behalf of and to operate for the benefit of
each director and relevant officer of Normandy.
3. CLAUSE 4.2 PAYMENT
In the event that, at any time prior to a Payment becoming due to be made to
Newmont in accordance with clause 4.2 of the Deed of Undertaking, there is a
challenge to Normandy making the Payment which challenge is instituted or
brought before a Court or the Takeovers Panel (CHALLENGE), then:
(a) subject to the Proviso, Newmont will not enforce or seek to enforce
Normandy's obligation to make the Payment, nor will Newmont seek recovery of
the Payment under the Security Bond, until such time as the Challenge is
Finally Determined;
(b) if upon the Final Determination of the Challenge, Normandy is
restrained from making the Payment (or any part thereof) or the making of
the Payment is prevented by reason of a determination that it is illegal or
unlawful (other than for any purpose on the part of the directors or any
officer of Normandy to obtain improper personal pecuniary benefits, not
including any benefit directly or indirectly as a holder of securities of
Normandy in common with other holders of securities of Normandy) then,
subject to the Proviso, Newmont will not seek to recover the Payment (or
part thereof as the case may be) or damages in lieu thereof either against
Normandy or any director or any officer of Normandy nor will Newmont seek to
exercise its rights under the Security Bond.
4. RECOVERY OF PAYMENTS ALREADY MADE
In the event that, at any time after a Payment has been made by Normandy to
Newmont in accordance with clause 4.2 of the Deed of Undertaking, there is a
challenge in respect of the Payment having been made which challenge is
instituted or brought before a Court or the Takeovers Panel (POST-PAYMENT
CHALLENGE) then, subject to the Proviso, Newmont will promptly refund the
Payment (or any part thereof) upon a Final Determination of the Post-Payment
Challenge if it is determined or decided that the making of the Payment (or the
part thereof) was illegal or unlawful (other than for any purpose on the part
of the directors or any officer of Normandy to obtain improper personal
pecuniary benefits, not including any benefit directly or indirectly as a
holder of securities of Normandy in common with other holders of securities of
Normandy) and Newmont will not in such circumstances seek to recover the
Payment (or part thereof as the case may be) or damages in lieu thereof either
against Normandy or any director or officer of Normandy who authorised the
making of such Payment, nor will Newmont seek to exercise any rights under the
Security Bond.
5. DEED OF UNDERTAKING
To the extent of any inconsistency between the provisions of this Deed and
clause 4.6(c) of the Deed of Undertaking, the provisions of this Deed prevail.
22
EXECUTED as a Deed.
SIGNED by NORMANDY MINING LIMITED by:
------------------------------------- ----------------------------------
Signature of Director Signature of Director/Secretary
------------------------------------- ----------------------------------
Name of Director (print) Name of Director/Secretary (print)
SIGNED by NEWMONT MINING
CORPORATION by:
-------------------------------------
-------------------------------------
Name
-------------------------------------
Title
23
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
THIRD DEED OF UNDERTAKING
NEWMONT MINING CORPORATION
NORMANDY MINING LIMITED
ABN 86 009 295 765
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
24
CONTENTS
PAGE
----
1. DEFINITIONS AND INTERPRETATION.................................. 26
1.1 Definitions................................................. 26
1.2 Interpretation.............................................. 26
2. AMENDMENT OF DEED OF UNDERTAKING................................ 27
3. ACKNOWLEDGEMENT AND CONFIRMATION................................ 27
3.1 Normandy Acknowledgements................................... 27
3.2 Newmont Acknowledgements.................................... 27
4. REPRESENTATION AND WARRANTIES................................... 27
5. OTHER PROVISIONS CONTINUE....................................... 27
6. GENERAL......................................................... 28
7. AMENDMENT AND ASSIGNMENT........................................ 28
7.1 Amendment................................................... 28
7.2 Assignment.................................................. 28
8. GENERAL......................................................... 28
8.1 Governing Law............................................... 28
8.2 Liability for Expenses...................................... 28
8.3 Counterparts................................................ 28
8.4 Attorneys................................................... 28
8.5 Severability................................................ 28
8.6 Entire Agreement............................................ 29
8.7 Normandy Board Resolution................................... 29
25
THIRD DEED OF UNDERTAKING
DATED 10 DECEMBER 2001
PARTIES
1. NEWMONT MINING CORPORATION of 0000 Xxxxxxx Xxxxxx, 00/xx/ Xxxxx, Xxxxxx,
Xxxxxxxx 00000, Xxxxxx Xxxxxx of America (NEWMONT)
2. NORMANDY MINING LIMITED ABN 86 009 295 765 of 000 Xxxx Xxxxxx, Xxxxxxxx,
Xxxxx Xxxxxxxxx, 0000, Xxxxxxxxx (NORMANDY)
RECITALS
A. Newmont and Normandy are parties to a Deed of Undertaking dated 14 November
2001 (DEED OF UNDERTAKING) and a Second Deed of Undertaking dated the same
date (SECOND DEED) in respect of the Bid (as defined in the Deed of
Undertaking).
B. Since the date of the Deed of Undertaking, AngloGold has amended the
AngloGold Bid, as announced by AngloGold on 29 November 2001.
C. Newmont is prepared to amend the Newmont Takeover Bid, as disclosed in the
form of agreed announcements contained in Schedule 1 (SECOND AGREED
ANNOUNCEMENTS) to this Third Deed of Undertaking (THIRD DEED), subject to
Normandy entering into this Third Deed.
D. Normandy and its directors believe that significant benefits will flow to
Normandy and its shareholders if the Newmont Takeover Bid is so amended.
THE PARTIES AGREE
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Third Deed, except as otherwise expressly provided, all terms that
are defined in the Deed of Undertaking shall have the same meanings in this
Third Deed.
"AGREED NEWMONT ANNOUNCEMENT" means that announcement contained in the
Second Agreed Announcements to be made by Newmont.
"AGREED NORMANDY ANNOUNCEMENT" means that announcement contained in the
Second Agreed Announcements to be made by Normandy.
1.2 INTERPRETATION
Headings are for convenience only and do not affect interpretation. The
following rules also apply in interpreting this document, except where the
context makes it clear that a rule is not intended to apply:
(a) A reference to a person includes any type of entity or body of
persons, whether or not it is incorporated or has a separate legal identity,
and any executor, administrator or successor in law of the person.
(b) A singular word includes the plural and vice versa.
(c) A word which suggests one gender includes the other genders.
(d) If a word is defined, another part of speech has a corresponding
meaning.
(e) Words or expressions which are defined in the Corporations Act have
the same meanings in this Third Deed.
26
2. AMENDMENT OF DEED OF UNDERTAKING
The Deed of Undertaking is amended as and from the date of this Third Deed
in the following respects:
(a) The definition of "Competing Takeover Proposal" in clause 1.1 shall
be amended to add after the words "but including" in the second line:
"the amendment of AngloGold's Bid announced on 29 November 2001 and"
(b) The definition of "Newmont's Takeover Bid or Bid" shall be deleted
and replaced by the following:
"NEWMONT'S TAKEOVER BID OR BID" means the takeover bid announced by
Newmont on 14 November 2001, as amended in accordance with the Agreed
Newmont Announcement (as defined in the Third Deed of Undertaking
dated 10 December 2001 between the parties).
(c) Clause 4.2(c) is amended by deleting the words ", being 1% of the Bid
value determined on the date the Bid is announced,".
3. ACKNOWLEDGEMENT AND CONFIRMATION
3.1 NORMANDY ACKNOWLEDGEMENTS
Normandy expressly acknowledges that:
(a) the conditions precedent in section 2 of the Deed of Undertaking have
been satisfied and that the Deed of Undertaking is binding on Normandy; and
(b) the AngloGold Bid, as amended by the announcement dated 29 November
2001, constitutes a Competing Takeover Proposal for the purposes of section
4.3 of the Deed of Undertaking.
3.2 NEWMONT ACKNOWLEDGEMENTS
Newmont is not aware of any event that has been publicly disclosed as of the
date of this Third Deed (other than the applications by AngloGold to the
Takeovers Panel) that constitutes a breach of any condition to the Newmont
Takeover Bid. Newmont agrees that it will not assert that the filing of any
application to the Takeovers Panel by AngloGold prior to the date of this Third
Deed constitutes a breach of any condition to the Newmont Takeover Bid.
4. REPRESENTATION AND WARRANTIES
Normandy has taken all necessary action to authorise the signing, delivery
and performance of this Third Deed and the documents required under this Third
Deed in accordance with their respective terms.
5. OTHER PROVISIONS CONTINUE
(a) All other provisions of the Deed of Undertaking shall, except as
expressly provided in this Third Deed, continue with full force and effect.
(b) The Second Deed:
(i) continues to apply to the Deed of Undertaking;
(ii) applies to the Deed of Undertaking as amended by this Third
Deed; and
(iii) applies to this Third Deed.
27
6. GENERAL
(a) Newmont will immediately after execution of this Third Deed make the
Agreed Newmont Announcement to the Australian Stock Exchange Limited.
(b) Normandy will promptly after Newmont makes the Agreed Newmont
Announcement make the Agreed Normandy Announcement to the Australian Stock
Exchange.
(c) Normandy will lodge a copy of this Third Deed with the Australian Stock
Exchange Limited on the day that the Second Agreed Announcements are made.
7. AMENDMENT AND ASSIGNMENT
7.1 AMENDMENT
This document can only be amended, supplemented, replaced or novated by
another document signed by the parties.
7.2 ASSIGNMENT
Subject to clause 6.9 of the Deed of Undertaking, a party may only dispose
of, declare a trust over or otherwise create an interest in its rights under
this document with the consent of the other party.
8. GENERAL
8.1 GOVERNING LAW
(a) This document is governed by the law in force in New South Wales,
Australia.
(b) Each party submits to the non-exclusive jurisdiction of the Courts
exercising jurisdiction in New South Wales, Australia and any Court that may
hear appeals from any of those Courts, for any proceedings in connection with
this document and waives any right it might have to claim that those Courts are
an inconvenient forum.
8.2 LIABILITY FOR EXPENSES
Subject to this document, each party must pay its own expenses incurred in
negotiating, executing, stamping and registering this document.
8.3 COUNTERPARTS
This document may be executed in counterparts.
8.4 ATTORNEYS
Each person who executes this document on behalf of a party under a power of
attorney declares that he or she is not aware of any fact or circumstance that
might affect his or her authority to do so under that power of attorney.
8.5 SEVERABILITY
If the whole or any part of a provision of this Third Deed is void,
unenforceable or illegal in a jurisdiction, it is severed for that
jurisdiction. The remainder of this Third Deed has full force and effect and
the validity or enforceability of that provision in any other jurisdiction is
not affected. This clause has no effect if the severance alters the basic
nature of this Third Deed or is contrary to public policy.
28
8.6 ENTIRE AGREEMENT
This Third Deed, together with the Deed of Undertaking and the Second Deed
constitutes the entire agreement of the parties about its subject matter and
supersedes all previous agreements, understandings and negotiations on that
subject matter, other than the Confidentiality Agreement.
8.7 NORMANDY BOARD RESOLUTION
(a) Normandy has provided to Newmont a certified copy of a resolution of the
Normandy Board, which has been unanimously passed at a meeting of the Normandy
Board at which each director of Normandy was present (other than Xxxxxx
Xxxxxxxx), confirming that the Normandy Board approves the execution of this
Third Deed, as being in the best interests of Normandy and its shareholders,
and approves the Agreed Normandy Announcement and the revised Newmont Takeover
Bid.
(b) Newmont agrees that it will not commence any legal action against the
Normandy Board or any member thereof in relation to the resolution of the
Normandy Board to approve and commit Normandy to enter into this Third Deed.
29
SCHEDULE 1
(AGREED ANNOUNCEMENTS--RECITAL C)
30
EXECUTED as a Deed.
SIGNED by NORMANDY MINING LIMITED by:
-------------------------------------- ----------------------------------
Signature of Director Signature of Director/Secretary
-------------------------------------- ----------------------------------
Name of Director (print) Name of Director/Secretary (print)
SIGNED by NEWMONT MINING
CORPORATION by:
--------------------------------------
--------------------------------------
Name
--------------------------------------
Title
31
