Exhibit 1.2
NEWMONT MINING CORPORATION, Issuer
NEWMONT USA LIMITED, Guarantor
Debt Securities
Underwriting Agreement
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Dear Sirs:
1. Introductory. Newmont Mining Corporation, a Delaware corporation
(the "Company"), proposes to issue and sell from time to time certain of its
debt securities registered under the registration statement referred to in
Section 2(a) ("Registered Securities"). Payment of principal of, and interest,
if any, and premium, if any, on the Debt Securities will be unconditionally
guaranteed by Newmont USA Limited, a Delaware corporation, as Guarantor (the
"Guarantor"), pursuant to the terms and conditions of the guaranty issued under
the Indenture (as defined below)(the "Guaranty"). The Registered Securities may
be convertible into common shares of the Company, par value $1.60 per share
("Common Shares"). The Registered Securities will be issued under an indenture,
dated as of __________, ____ (the "Indenture"), among the Company, the Guarantor
and Citibank, N.A., as Trustee, in one or more series, which series may vary as
to interest rates, maturities, redemption provisions, selling prices and, in the
case of Registered Securities that are convertible at the option of holders into
Common Shares ("Convertible Registered Securities"), conversion prices and the
terms and conditions relating to such conversion rights and other terms, with
all such terms for any particular series of the Registered Securities being
determined at the time of sale. The issuance and sale of Registered Securities
and the related Guaranty have been registered under the registration statement
referred to in Section 2(a). Particular series of the Registered Securities will
be sold pursuant to a Terms Agreement referred to in Section 3 in the form of
Annex I attached hereto, for resale in accordance with terms of offering
determined at the time of sale. The Registered Securities and related Guaranty
are hereunder referred to as the "Securities". The firm or firms which agree to
purchase the Securities are hereinafter referred to as the "Underwriters" of
such Securities, and the representative or representatives of the Underwriters,
if any, specified in a Terms Agreement referred to in Section 3 are hereinafter
referred to as the "Representatives"; provided, however, that if the Terms
Agreement does not specify any representative of the Underwriters, the term
"Representatives", as used in this Agreement (other than in Section 5(c) and the
second sentence of Section 3) shall mean the Underwriters.
2. Representations and Warranties of the Company and the Guarantor.
The Company and the Guarantor, jointly and severally, represent and warrant to,
and agree with, each Underwriter that:
(a) A registration statement (No. 333-____), including a prospectus
relating to the Securities, has been filed with the Securities and Exchange
Commission (the "Commission") and has become effective. Such registration
statement, as amended at the time of any Terms Agreement referred to in
Section 3, is hereinafter referred to as the "Registration Statement", and
the prospectus included in such Registration Statement, as supplemented as
contemplated by Section 3 to reflect the terms of the Securities and the
terms of offering thereof, as first filed with the Commission pursuant to
and in accordance with Rule 424(b) ("Rule 424(b)") of the Rules and
Regulations of the Commission (the "Rules and Regulations") under the
Securities Act of 1933, as amended (the "Act"), including all material
incorporated by reference therein, is hereinafter referred to as the
"Prospectus".
(b) On the effective date of the registration statement relating to
the Securities, such registration statement conformed in all material
respects to the requirements of the Act, the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), and the Rules and Regulations and
did not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, and on the date of the Terms Agreement
referred to in Section 3, the Registration Statement and the Prospectus
will conform in all material respects to the requirements of the Act, the
Trust Indenture Act and the Rules and Regulations, and neither of such
documents will include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading, except that the
foregoing representations do not apply to statements in or omissions from
any of such documents based upon written information furnished to the
Company by any Underwriter specifically for use therein.
(c) Each document filed by the Company pursuant to the Exchange Act
which is incorporated by reference in the Prospectus complied when so filed
in all material respects with the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the rules and regulations thereunder, and
each document, if any, hereafter filed and so incorporated by reference in
the Prospectus (other than documents incorporated by reference therein
relating solely to securities other than the Securities) will comply when
so filed in all material respects with the Exchange Act and the rules and
regulations thereunder.
3. Purchase and Offering of Securities. The obligation of the Company
to issue and sell any Registered Securities, the obligation of the Guarantor to
guarantee such Registered Securities and the obligation of the Underwriters to
purchase the Securities will be set forth in a Terms Agreement (the "Terms
Agreement") which shall be in the form of an executed writing (which may be
handwritten), and may be evidenced by an exchange of telegraphic, facsimile or
any other rapid transmission device designed to produce a written record of
communications transmitted at the time the Company determines to sell the
Securities. The Terms Agreement will incorporate by reference the provisions of
this Agreement, except as otherwise provided therein, and will specify the firm
or firms which will be Underwriters, the names of any Representatives, the
aggregate principal amount of the Registered Securities, the principal
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amount of Registered Securities to be purchased by each Underwriter, the initial
public offering price of the Registered Securities, the purchase price to be
paid by the Underwriters and the terms of the Registered Securities not already
specified in the Indenture, including, but not limited to, dates of payment and
rate of interest, if any, maturity, any redemption or repayment provisions and
any sinking fund requirements and whether any of the Securities may be sold to
institutional investors pursuant to Delayed Delivery Contracts (as defined
below). The Terms Agreement will also specify the time and date of delivery and
payment (such time and date, or such other time not later than seven full
business days thereafter as the Representatives, the Company and the Guarantor
agree as the time for payment and delivery, being herein and in the Terms
Agreement referred to as the "Closing Date"), the place of delivery and payment
and any details of the terms of offering that should be reflected in the
prospectus supplement relating to the offering of the Securities. The
obligations of the Underwriters to purchase the Securities will be several and
not joint. It is understood that the Underwriters propose to offer the
Securities for sale as set forth in the Prospectus. The Securities delivered to
the Underwriters on the Closing Date will be in definitive fully registered
form, in such denominations and registered in such names as the Underwriters may
request.
If the Terms Agreement provides for sales of Securities pursuant to
delayed delivery contracts, the Company and the Guarantor authorize the
Underwriters to solicit offers to purchase Securities pursuant to delayed
delivery contracts substantially in the form of Annex II attached hereto
("Delayed Delivery Contracts") with such changes therein as the Company and the
Guarantor may authorize or approve. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. On the Closing Date, the Company or the Guarantor will pay, as
compensation, to the Representatives for the accounts of the Underwriters, the
fee set forth in such Terms Agreement in respect of the principal amount of
Securities to be sold pursuant to Delayed Delivery Contracts ("Contract
Securities"). The Underwriters will not have any responsibility in respect of
the validity or the performance of Delayed Delivery Contracts. If the Company
and the Guarantor execute and deliver Delayed Delivery Contracts, the Contract
Securities will be deducted from the Securities to be purchased by the several
Underwriters and the aggregate principal amount of Securities to be purchased by
each Underwriter will be reduced pro rata in proportion to the principal amount
of Securities set forth opposite each Underwriter's name in such Terms
Agreement, except to the extent that the Representatives determine that such
reduction shall be otherwise than pro rata and shall so advise the Company and
the Guarantor. The Company will advise the Representatives not later than 5:00
p.m., New York time, on the business day prior to the Closing Date of the
principal amount of Contract Securities.
4. Certain Agreements of the Company and the Guarantor. Each of the
Company and the Guarantor, jointly and severally, agrees with the several
Underwriters that it will furnish to _____________________, counsel for the
Underwriters ("Underwriter's Counsel"), one signed copy of the registration
statement relating to the Securities, including all exhibits, in the form it
became effective and of all amendments thereto and that, in connection with each
offering of Securities:
(a) The Company and the Guarantor will file the Prospectus with the
Commission pursuant to and in accordance with Rule 424(b).
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(b) During the time when a prospectus relating to the Securities is
required to be delivered under the Act, (i) the Company or the Guarantor
will advise the Representatives promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus and will afford the
Representatives a reasonable opportunity to comment on any such proposed
amendment or supplement and (ii) the Company or the Guarantor will also
advise the Representatives promptly of the filing of any such amendment or
supplement and of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement or of any part thereof
and will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary at any
time to amend the Prospectus to comply with the Act, the Company and the
Guarantor promptly will prepare and file with the Commission an amendment
or supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither the Representatives' consent to,
nor the Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5.
(d) The Company will make generally available to its security holders
as soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of
the Act and the Rules and Regulations (including, at the option of the
Company, Rule 158 under the Act).
(e) The Company and the Guarantor will furnish to the Representatives
copies of the Registration Statement, including all exhibits, any related
prospectus, any related preliminary prospectus supplement and the
Prospectus and, during the time when a prospectus relating to the
Registered Securities is required to be delivered under the Act, all
amendments and supplements to such documents (other than those solely
relating to securities other than the Securities), in each case as soon as
available and in such quantities as are reasonably requested.
(f) The Company and the Guarantor will arrange for the qualification
of the Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as the Representatives
designate and will continue such qualifications in effect so long as
required for the distribution; provided, however, that in no event shall
either the Company or the Guarantor be required to qualify as a foreign
corporation or as a dealer in securities or to file a general or unlimited
consent for service of process in any such jurisdiction.
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(g) The Company and the Guarantor will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's and
the Guarantor's counsel and accountants in connection with the registration
of the Securities under the Act and all other expenses in connection with
the preparation, printing and filing of the Registration Statement, any
preliminary prospectus supplement and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing any Agreement among
Underwriters, this Agreement, any Terms Agreement, any Indenture, any
Delayed Delivery Contracts, any Blue Sky and Legal Investment Memoranda and
any other documents in connection with the offering, purchase, sale and
delivery of the Securities; (iii) all expenses in connection with the
qualification of the Securities for offering and sale under state
securities laws as provided in Section 4(f), including the reasonable fees
and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and legal investment
surveys; (iv) any fees charged by securities rating services for rating the
Securities; (v) any filing fees incident to any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale
of the Securities; (vi) the cost of preparing the Securities; (vii) the
fees and expenses of any Trustee and any agent of any Trustee and the fees
and disbursements of counsel for any Trustee in connection with any
Indenture and the Securities; and (viii) all other costs and expenses
incident to the performance of its obligations hereunder and under any
Delayed Delivery Contracts which are not otherwise specifically provided
for in this Section; provided, however, that, except as provided in this
Section, Section 6 and Section 8 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel, transfer
taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
(h) For a period beginning at the time of execution of the Terms
Agreement and ending the earlier of (i) the termination of trading
restrictions for the Securities, as notified to the Company and the
Guarantor by the Representatives, and (ii) the Closing Date, without the
prior consent of the Representatives, the Company and the Guarantor will
not offer, sell, contract to sell or otherwise dispose of any securities
substantially similar to the Securities.
5. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company and the Guarantor herein, to the accuracy of the written statements of
the officers of the Company and the Guarantor made pursuant to the provisions
hereof, to the performance by each of the Company and the Guarantor of its
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 satisfactory to the
Representatives.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a). No stop order
suspending the effectiveness of the Registration Statement or of any part
thereof shall have been issued
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and no proceedings for that purpose shall have been instituted or, to the
knowledge of the Company, the Guarantor or any Underwriter, shall be
threatened by the Commission.
(c) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any downgrading in the rating of any senior debt
securities of the Company or the Guarantor by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)
under the Act), or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of the
Company or the Guarantor (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (ii) any suspension or limitation of trading
in securities generally on the New York Stock Exchange, Inc., or any
setting of minimum prices for trading on such exchange; (iii) any general
banking moratorium declared by Federal or New York authorities; or (iv) any
outbreak or material escalation of major hostilities in which the United
States is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the
reasonable judgment of a majority in interest of the Underwriters,
including any Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency is so material and adverse so as to make
it impractical or inadvisable to proceed with completion of the sale of and
payment for the Securities.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of White & Case LLP, counsel for the Company and the
Guarantor , to the effect that:
(i) Each of the Company and the Guarantor has been duly
incorporated and is an existing corporation in good standing under the
laws of the State of Delaware, with corporate power and authority to
own its properties and conduct its business as described in the
Prospectus;
(ii) The Indenture has been duly authorized, executed and
delivered by each of the Company and the Guarantor and has been duly
qualified under the Trust Indenture Act; the Indenture 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,
fraudulent transfer 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), provided, however, that such counsel
need express no opinion with respect to U.S. federal and state laws
dealing with fraudulent conveyances; the Securities have been duly
authorized; the Registered Securities other than any Contract
Securities have been duly executed, issued and delivered by the
Company; the Registered Securities other than any Contract Securities
constitute, and any Contract Securities, when executed, authenticated,
issued and delivered in the manner provided in the Indenture and sold
pursuant to Delayed Delivery Contracts, will constitute, valid and
legally binding obligations of the Company enforceable in accordance
with their terms, except as the enforceability thereof may be limited
by applicable bankruptcy, insolvency, reorganization, fraudulent
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transfer 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), provided, however, that such counsel need express
no opinion with respect to U.S. federal and state laws dealing with
fraudulent conveyances; the related Guaranty has been duly executed,
authenticated, issued and delivered by the Guarantor; the Guaranty
constitutes a valid and legally binding obligation of the Guarantor
enforceable in accordance with its terms, except as the enforceability
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent transfer 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),
provided, however, that such counsel need express no opinion with
respect to U.S. federal and state laws dealing with fraudulent
conveyances; and the Securities other than any Contract Securities
conform, and any Contract Securities, when issued and delivered in the
manner provided for in the Indenture and sold pursuant to Delayed
Delivery Contracts, will conform, in all material respects to the
description thereof contained in the Prospectus;
(iii) No consent, approval, authorization or order of, or filing
with, any New York State or Federal governmental agency or body or any
New York State or Federal court having jurisdiction over either the
Company or the Guarantor or any of its respective material properties
is required to be obtained or made by either the Company or the
Guarantor for the consummation of the transactions contemplated by the
Terms Agreement (including the provisions of this Agreement) in
connection with the issuance or sale of the Securities by the Company,
except such as have been obtained and made under the Act and the Trust
Indenture Act and such as may be required under state securities or
Blue Sky laws (as to which such counsel need express no opinion);
(iv) The execution, delivery and performance of the Indenture,
the Terms Agreement (including the provisions of this Agreement) and
any Delayed Delivery Contracts and the issuance and sale of the
Securities and compliance with the terms and provisions thereof will
not result in a breach or violation of any of the terms and provisions
of, or constitute a default under, the Certificate of Incorporation or
By-Laws of either the Company or the Guarantor or any statute, rule,
regulation or order applicable to the Company, the Guarantor or any of
their respective 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, the Guarantor or any of their
respective material properties (other than those that may be required
under the Act and under applicable state securities or Blue Sky laws
as to which such counsel need express no opinion) and the Company has
full corporate power and authority to authorize, issue and sell the
Securities as contemplated by the Terms Agreement (including the
provisions of this Agreement);
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(v) 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 Act, the Trust
Indenture Act and the Rules and Regulations thereunder; nothing has
come to such counsel's attention which causes it to believe that such
registration statement, as of its effective date, the Registration
Statement or the Prospectus, as of the date of the Terms Agreement, or
any such amendment or supplement, as of its date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading; it being understood that
such counsel need express no opinion as to the financial statements
and schedules or other financial or statistical data contained in any
of the above-mentioned documents; and
(vi) The Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by each of the Company and the
Guarantor.
(e) The Representatives shall have received an opinion, dated the
Closing Date, from ▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President and General Counsel of
each of the Company and the Guarantor, to the effect that:
(i) Each of the Company and the Guarantor 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
respective businesses require such qualification (except where the
failure to so qualify would not have a material adverse effect upon
the Company and its subsidiaries taken as a whole or the Guarantor and
its subsidiaries taken as a whole, as the case may be), and has all
power and authority necessary to own its properties and conduct the
businesses in which it is engaged as described in the Prospectus;
(ii) The execution, delivery and performance of the Indenture,
the Terms Agreement (including the provisions of this Agreement) and
any Delayed Delivery Contracts and the issuance and sale of the
Securities and compliance with the terms and provisions thereof will
not result in a breach or violation of any of the terms and provisions
of, or constitute a default under any order, rule or regulation
applicable to the Company, the Guarantor or any of their respective
subsidiaries of which such counsel is aware of any court or
governmental agency or body having jurisdiction over the Company, the
Guarantor or any of their respective material properties or, any
material agreement or instrument to which the Company, the Guarantor
or any of their respective material subsidiaries is a party or by
which the Company, the Guarantor or any such subsidiary is bound or to
which any of the properties of the Company, the Guarantor or any such
subsidiary is subject, or the Certificate of Incorporation or By-Laws
of the Company, the Guarantor or any such subsidiary;
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(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, the Guarantor
or any of their material properties that is required to be obtained or
made by the Company or the Guarantor for the consummation of the
transactions contemplated by the Terms Agreement (including the
provisions of this Agreement) in connection with the issuance or sale
of the Securities by the Company and the Guarantor, except such as may
be required under the Act, the Trust Indenture Act and under state
securities or Blue Sky laws (as to which such counsel need express no
opinion);
(iv) The documents incorporated by reference in the Prospectus
(other than the financial statements and related schedules and other
financial and statistical data contained therein, as to which such
counsel needs express no opinion), when they were filed with the
Commission complied as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder; and nothing has come to such counsel's
attention which causes it to believe that any of such documents, when
such documents were so filed contained an untrue statement of a
material fact and omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made when such documents were so filed, not
misleading;
(v) Nothing has come to such counsel's attention which causes it
to believe that the registration statement relating to the Registered
Securities, as of its effective date, the Registration Statement or
the Prospectus, as of the date of the Terms Agreement, or any such
amendment or supplement, as of its date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading; it being understood that
such counsel need express no opinion as to the financial statements
and schedules or other financial or statistical data contained in any
of the above-mentioned documents; and
(vi) The statements contained in the Company's Annual Reports on
Form 10-K under the heading "Item 3. Legal Proceedings", and the
statements contained in the Company's Quarterly Reports on Form 10-Q
under the heading "Item 1. Legal Proceedings", in each case, which are
incorporated or deemed to be incorporated by reference in the
Prospectus, insofar as such statements constitute a summary of the
legal documents, matters or proceedings referred to therein, fairly
present the information called for with respect to such legal
documents, matters and proceedings.
(f) The Representatives shall have received from Underwriter's
Counsel, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Company and the
Guarantor, the validity of the Securities, the Registration Statement, the
Prospectus and other related matters as they may require, and the Company
and the Guarantor shall have furnished to such counsel
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such documents as they request for the purpose of enabling them to pass
upon such matters.
(g) The Representatives shall have received a certificate, dated the
Closing Date, of the Chairman of the Board and Chief Executive Officer, the
President, any Executive Vice President, the Senior Vice President or any
Vice President and a principal financial or accounting officer from each of
the Company and the Guarantor in which such officers, to their knowledge,
shall state that the representations and warranties of the Company and the
Guarantor, as the case may be, in this Agreement are true and correct at
and as of the Closing Date, that the Company and the Guarantor, as the case
may be, has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to the Closing
Date, that no stop order suspending the effectiveness of the Registration
Statement or of any part thereof has been issued and no proceedings for
that purpose have been instituted by the Commission and that, subsequent to
the date of the most recent financial statements in the Prospectus, there
has been no material adverse change in the financial position or results of
operation of the Company and its subsidiaries taken as a whole except as
set forth in or contemplated by the Prospectus or as described in such
certificate.
Each of the Company and the Guarantor will furnish the Representatives with such
conformed copies of such opinions, certificates, letters and documents as they
reasonably request.
6. Indemnification and Contribution. (a) Each of the Company and the
Guarantor will jointly and severally indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that neither the Company nor the Guarantor will be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company and the Guarantor by any Underwriter specifically for use therein; and
provided, further, that neither the Company nor the Guarantor shall be liable to
any Underwriter under the indemnity agreement in this subsection (a) with
respect to any preliminary prospectus or preliminary prospectus supplement to
the extent that any such loss, claim, damage or liability of such Underwriter
results from the fact that such Underwriter sold designated securities to a
person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus as then amended or
supplemented in any case where such delivery is required by the Act if either
the Company or the Guarantor has previously furnished copies thereof to such
Underwriter and the loss, claim, damage or liability results from an untrue
statement or omission of a material fact
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contained in the preliminary prospectus which was corrected in the Prospectus
(as then amended, supplemented or modified).
(b) Each Underwriter will indemnify and hold harmless the Company and
the Guarantor against any losses, claims, damages or liabilities to which either
the Company or the Guarantor may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus or preliminary prospectus supplement, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company or the Guarantor by such Underwriter specifically for use therein, and
will reimburse any legal or other expenses reasonably incurred by the Company or
the Guarantor in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement.
(d) If the indemnification provided for in this Section is unavailable
(other than as a result of the provisos contained in subsection (a)) or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in subsection (a) or (b)
above in such proportion as is appropriate to reflect the relative fault of the
Company and the Guarantor on the one hand and of the Underwriters on the other
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations, including relative benefit. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement
-11-
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Guarantor or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
Company, the Guarantor and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (d) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or any other method of allocation which does not take account of
the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of each of the Company and the Guarantor under
this Section shall be in addition to any liability which it 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 or the Guarantor, to
each officer of the Company or the Guarantor who has signed the Registration
Statement and to each person, if any, who controls the Company or the Guarantor
within the meaning of the Act.
7. Default of Underwriters. (a) If any Underwriter shall default in
its obligation to purchase the Securities which it has agreed to purchase under
the Terms Agreement relating to such Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Securities on the terms contained herein. If within thirty-six
hours after such default by any Underwriter the Representatives do not arrange
for the purchase of such Securities, then the Company shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties satisfactory to the Representatives to purchase such Securities on
such terms. In the event that, within the respective prescribed period, the
Representatives notify the Company and the Guarantor that they have so arranged
for the purchase of such Securities, or the Company notifies the Representatives
that it has so arranged for the purchase of such Securities, the Representatives
or the Company shall have the right to postpone the Closing Date for such
Securities for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus as amended or supplemented, or in any other documents or
arrangements, and each of the Company and the Guarantor agrees to file promptly
any amendments or supplements to the Registration Statement or the Prospectus
which in the reasonable opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this
-12-
Agreement shall include any person substituted under this section with like
effect as if such person had originally been a party to the Terms Agreement with
respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Registered Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Registered Securities which remains
unpurchased does not exceed one-tenth of the aggregate principal amount of the
Registered Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Registered
Securities which such Underwriter agreed to purchase under the Terms Agreement
relating to such Registered Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Registered Securities which such Underwriter agreed to
purchase under such Terms Agreement) of the Registered 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 Registered Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Registered Securities which remains unpurchased
exceeds one-tenth of the aggregate principal amount of the Registered
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Registered Securities of a defaulting Underwriter or
Underwriters, then the Terms Agreement relating to such Registered Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter, the Company or the Guarantor, except for the expenses to be borne
by the Company, the Guarantor and the Underwriters as provided in Section 4(g)
and the indemnity and contribution agreements in Section 6; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company, the Guarantor or their 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, the Guarantor or any of
their respective representatives, officers or directors or any controlling
person and will survive delivery of and payment for the Securities. If the Terms
Agreement is terminated pursuant to Section 7 or if for any reason the purchase
of the Securities by the Underwriters under the Terms Agreement is not
consummated, the Company and the Guarantor 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, the Guarantor and the Underwriters
pursuant to Section 6 shall remain in effect. If the purchase of the Securities
by the Underwriters is not consummated for any reason, other than solely because
of the termination of this Agreement pursuant to Section 7 or the occurrence of
any event specified in clause (ii), (iii) or (iv) of Section 5(c), the Company
and the Guarantor will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Securities, but the Company and the
Guarantor shall be under no further liability to any Underwriter except as
provided in Section 6.
-13-
9. Notices. All statements, requests, notices and agreements hereunder
shall be in writing and if to the Underwriters shall be sufficient in all
respects, if delivered or sent by first class mail, telex, or facsimile
transmission (confirmed in writing by overnight courier sent on the day of such
facsimile transmission) to the address of the Representatives as set forth in
the Terms Agreement; and if to the Company or the Guarantor shall be sufficient
in all respects if delivered or sent by first class mail or facsimile
transmission (confirmed in writing by overnight courier sent on the day of such
facsimile transmission) to the address of the Company and the Guarantor set
forth in the Registration Statement, Attention: Secretary.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the Company, the Guarantor 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 Securities from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
11. Representatives. In all dealings under any Terms Agreement and
hereunder, the Representatives, if any, shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any underwriter made or
given by the Representatives.
12. Time of Essence. Time shall be of the essence of each Terms
Agreement. As used herein the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
13. GOVERNING LAW. THIS AGREEMENT AND EACH TERMS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
14. Counterparts. This Agreement and each Terms Agreement may be
executed by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
-14-
If the foregoing is in accordance with your understanding, please sign
and return three counterparts hereof.
Very truly yours,
NEWMONT MINING CORPORATION
By:
-----------------------------
Name:
Title:
NEWMONT USA LIMITED
By:
-----------------------------
Name:
Title:
Accepted as of the date hereof:
[Names of Underwriters]
By: [Representatives]
By:
-----------------------------
Name:
Title:
On behalf of each of the Underwriters
-15-
ANNEX I
NEWMONT MINING CORPORATION, Issuer
NEWMONT USA LIMITED, Guarantor
Debt 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 and Newmont USA Limited, a Delaware corporation (the
"Guarantor"), 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 "Registered
Securities"). Payment of principal of, and interest, if any, and premium, if
any, on the Securities will be unconditionally guaranteed by the Guarantor
pursuant to the terms and conditions of the guaranty issued under the Indenture
(the "Guaranty"). The Registered Securities and related Guaranty are referred to
as the "Securities". Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Terms
Agreement, except that, if this Terms Agreement and the Underwriting Agreement
are dated different dates, each representation and warranty with respect to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation and warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined) and also a representation and
warranty as of the date of this Terms Agreement in relation to the Prospectus as
amended or supplemented relating to the Securities which are the subject of the
Terms Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall be
deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives
designated to act on behalf of each of the Underwriters of Securities are set
forth in Schedule II hereto.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at a purchase price to the Underwriters set forth in Schedule II hereto, the
principal amount of Securities set forth opposite the name of such
Annex I
Page 2
Underwriter in Schedule I hereto, less the principal amount of Securities
covered by Delayed Delivery Contracts, if any, as may be specified in such
Schedule II. The Guarantor agrees, pursuant to the terms and conditions, set
forth in the Indenture, to endorse the Guaranty on such Securities.
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 among each of the Underwriters, the Company
and the Guarantor. 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 and the Guarantor upon request.
Very truly yours,
NEWMONT MINING CORPORATION
By:
-----------------------------
Name:
Title:
NEWMONT USA LIMITED
By:
-----------------------------
Name:
Title:
Accepted as of the date hereof:
By: _________________________
On behalf of each of the Underwriters
SCHEDULE I
Principal Amount of
Designated Securities
Underwriter to be Purchased
------------
Total......................... $
============
SCHEDULE II
Title of Securities:
[ %] [Floating Rate] [Zero Coupon] Guaranteed [Notes] [Debentures] due
Aggregate principal amount:
$
------------
Price to Public:
_____% of the principal amount of the Securities, plus accrued
interest [, if any,] from _________ to __________ [and accrued
amortization, if any, from __________ to ____________]
Purchase Price by Underwriters:
_____% of the principal amount of the Securities, plus accrued
interest [,if any,] from _________ to __________ [and accrued
amortization, if any, from __________ to ____________]
Specified funds for payment of purchase price:
[New York] Clearing House funds
Ranking:
[Senior]
[Subordinated]
Indenture:
Indenture, dated as of __________, ____, [, as supplemented by
________,] between the Company and ___________________, as Trustee
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates]
Redemption Provisions:
[No provisions for redemption]
[The Securities may be redeemed, otherwise than through the sinking
fund, in whole or in part at the option of the Company, in the amount
of $ _____ or an integral multiple thereof, ----------]
Schedule II
Page 2
[on or after _________, _________ at the following redemption prices
(expressed in percentages of principal amount): If [redeemed on or
before _________, ___ %, and if] redeemed during the 12-month period
beginning ___________,
Year Redemption
Price
and thereafter at 100% of principal amount, together in each case with
accrued interest to the redemption date]
[on any interest payment date falling on or after ____________,
___________, at the election of the Company, at a redemption price
equal to the principal amount thereof, plus accrued interest to the
date of redemption].
[Other possible redemption provisions, such as mandatory redemption
upon occurrence of certain events or redemption for changes in tax
law].
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Securities are entitled to the benefit of a sinking fund to
retire $ _______ principal amount of Securities on ______ in each of
the years _____ through ____ at 100% of their principal amount plus
accrued interest] [, together with [cumulative] [non-cumulative]
redemptions at the option of the Company to retire an additional $
_________ principal amount of Securities in the years ____ through
____ at 100% of their principal amount plus accrued interest.]
[If Securities are extendable debt Securities, insert --
Extendable provisions:
Securities are repayable on ______, _____ [insert date and years], at
the option of the holder, at their principal amount with accrued
interest. Initial annual interest rate will be ___%, and thereafter
annual interest rate will be adjusted on ______, and _______ to a rate
not less than ___ % of the effective annual interest rate on U.S.
Treasury obligations with _________-year maturities as of the [insert
date 15 days prior to maturity date] prior to such [insert maturity
date].]
[If Securities are Floating Rate debt Securities, insert --
Floating rate provisions:
Initial annual interest rate will be __% through ____________ [and
thereafter will be adjusted [monthly] [on each _____, ________, and
___________] [to an annual rate of ______ % above the average rate for
______ -year [month] [securities] [certificates of deposit] issued by
_________ and ___________________ [insert names of banks].] [and the
annual interest rate
Schedule II
Page 3
[thereafter] [from ______________ through ____________] will be the
interest yield equivalent of the weekly average per annum market
discount rate for _____-month Treasury bills plus ___% of Interest
Differential (the excess, if any, of (i) then current weekly average
per annum secondary market yield for ______-month certificates of
deposit over (ii) then current interest yield equivalent of the weekly
average per annum market discount rate for ______-month Treasury
bills); [from _________ and thereafter the rate will be the then
current interest yield equivalent plus ____ % of Interest
Differential].]
Closing Date:
[Time and date], ____
Closing Location:
Delayed Delivery:
[None] [Underwriters' commission shall be ___ % of the principal
amount of Securities for which Delayed Delivery Contracts have been
entered into. Such commission shall be payable to the order of
_______________________________________.]
Names and addresses of Representatives:
Address for Notices, etc.:
[Other Terms]1
----------
1 A description of particular tax, accounting or other unusual features of
the Securities should be set forth, or referenced to an attached and
accompanying description, if necessary to the issuer's understanding of the
transaction contemplated. Such a description might appropriately be in the
form in which such features will be described in the Prospectus for the
offering.
ANNEX II
(Three copies of this Delayed Delivery Contract
should be signed and returned to the address
shown below so as to arrive not later than
9:00 A.M., New York time, on
__________ ____, ____*.)
DELAYED DELIVERY CONTRACT
[Insert date of initial
public offering]
NEWMONT MINING CORPORATION
c/o [Name and Address of Representative]
Gentlemen:
The undersigned hereby agrees to purchase from Newmont Mining
Corporation, a Delaware corporation (the "Company"), and the Company agrees to
sell to the undersigned, [If one delayed closing, insert--as of the date hereof,
for delivery on , __ ("Delivery Date"),]
$
---------------------
principal amount of the Company's [Insert title of securities] (the
"Securities"), guaranteed by Newmont USA Limited, a Delaware corporation (the
"Guarantor"), offered by the Company and the Guarantor's Prospectus dated _____,
___ and a Prospectus Supplement dated _____, ___ relating thereto, receipt of
copies of which is hereby acknowledged, at % of the principal amount thereof
plus accrued interest, if any, and on the further terms and conditions set forth
in this Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
----------
* Insert date which is third full business day prior to Closing Date under
the Terms Agreement.
Annex II
Page 2
[The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the principal amounts
set forth below:
Delivery Date Principal Amount
-------------- ---------------
-------------- ---------------
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase
for delivery on [the] [each] Delivery Date shall be made to the Company or its
order by certified or official bank check in [New York] Clearing House (next
day) funds at the office of at .M. on [the] [such] Delivery Date upon delivery
to the undersigned of the Securities to be purchased by the undersigned [for
delivery on such Delivery Date] in definitive fully registered form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to [the] [such] Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on [the] [each] Delivery Date shall
be subject only to the conditions that (1) investment in the Securities shall
not at [the] [such] Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total principal amount of
the Securities less the principal amount thereof covered by this and other
similar Contracts. The undersigned represents that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by [a copy] [copies] of the opinion[s] of counsel for
the Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's and the Guarantor's sole discretion and, without limiting the
foregoing, need not be on a first-come, first-served basis. If this Contract is
acceptable to the Company and the Guarantor, it is requested that the Company
and the Guarantor sign the form of acceptance below and mail or deliver one of
the counterparts hereof to the undersigned at its address set forth below. This
will
Annex II
Page 3
become a binding contract between the Company, the Guarantor and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
----------------------------------
(Name of Purchaser)
By:
-------------------------------
----------------------------------
(Title of Signatory)
----------------------------------
----------------------------------
(Address of Purchaser)
Accepted, as of the above date.
NEWMONT MINING CORPORATION
By:
----------------------------------
[Insert Title]
NEWMONT USA LIMITED
By:
----------------------------------
[Insert Title]