Exhibit 1.2
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NEWMONT MINING CORPORATION, Issuer
Debt Securities
Underwriting Agreement
__________, ____
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"). 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"), between the Company and
Citibank, N.A., as Trustee, in one or more series, which series may vary as to
interest rates, maturities, redemption provisions, selling prices and, 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
has 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 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. The Company
represents and warrants to, and agrees 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 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 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
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Agreement will also specify the time and date of delivery and payment(such time
and date, or such other time not later than seven full business days thereafter
as the Representatives and the Company agree as the time for payment and
delivery, being herein and in the Terms Agreement referred to as the "Closing
Date"), the place of delivery and payment and any details of the terms of
offering that should be reflected in the prospectus supplement relating to the
offering of the Securities. The obligations of the Underwriters to purchase the
Securities will be several and not joint. It is understood that the Underwriters
propose to offer the Securities for sale as set forth in the Prospectus. The
Securities delivered to the Underwriters on the Closing Date will be in
definitive fully registered form, in such denominations and registered in such
names as the Underwriters may request.
If the Terms Agreement provides for sales of Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters to solicit
offers to purchase Securities pursuant to delayed delivery contracts
substantially in the form of Annex II attached hereto ("Delayed Delivery
Contracts") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. On the Closing Date, the
Company will pay, as compensation, to the Representatives for the accounts of
the Underwriters, the fee set forth in such Terms Agreement in respect of the
principal amount of Securities to be sold pursuant to Delayed Delivery Contracts
("Contract Securities"). The Underwriters will not have any responsibility in
respect of the validity or the performance of Delayed Delivery Contracts. If the
Company executes and delivers Delayed Delivery Contracts, the Contract
Securities will be deducted from the Securities to be purchased by the several
Underwriters and the aggregate principal amount of Securities to be purchased by
each Underwriter will be reduced pro rata in proportion to the principal amount
of Securities set forth opposite each Underwriter's name in such Terms
Agreement, except to the extent that the Representatives determine that such
reduction shall be otherwise than pro rata and shall so advise the Company. The
Company will advise the Representatives not later than 5:00 p.m., New York time,
on the business day prior to the Closing Date of the principal amount of
Contract Securities.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to _____________________, counsel for
the Underwriters ("Underwriter's Counsel"), one signed copy of the registration
statement relating to the Securities, including all exhibits, in the form it
became effective and of all amendments thereto and that, in connection with each
offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b).
(b) During the time when a prospectus relating to the Securities is
required to be delivered under the Act, (i) the Company will advise the
Representatives promptly of any proposal to amend or supplement the
Registration Statement or the Prospectus and will afford the
Representatives a reasonable opportunity to comment on any such proposed
amendment or supplement and (ii) the Company will also advise the
Representatives promptly of the filing of any such amendment or supplement
and of the
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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 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 will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related prospectus, any
related preliminary prospectus supplement and the Prospectus and, during
the time when a prospectus relating to the Registered Securities is
required to be delivered under the Act, all amendments and supplements to
such documents (other than those solely relating to securities other than
the Securities), in each case as soon as available and in such quantities
as are reasonably requested.
(f) The Company will arrange for the qualification of the Securities
for sale and the determination of their eligibility for investment under
the laws of such jurisdictions as the Representatives designate and will
continue such qualifications in effect so long as required for the
distribution; provided, however, that in no event shall the Company be
required to qualify as a foreign corporation or as a dealer in securities
or to file a general or unlimited consent for service of process in any
such jurisdiction.
(g) The Company will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of the Company's counsel and accountants
in connection with the registration of the 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
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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 by the
Representatives, and (ii) the Closing Date, without the prior consent of
the Representatives, the Company will not offer, sell, contract to sell or
otherwise dispose of any securities substantially similar to the
Securities.
5. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the written statements of the officers of the
Company made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) The Representatives shall have received a letter, dated the
Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co., confirming that they are
independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating in effect
that:
(i) in their opinion, the financial statements and schedules
audited by them and included in the Prospectus comply in form in all
material respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
(ii) they have read the unaudited financial statements included
in the Prospectus;
(iii) on the basis of the reading referred to in (ii) above, a
reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have responsibility
for financial and accounting matters and
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other specified procedures, nothing came to their attention that
caused them to believe that:
(A) the unaudited financial statements, if any, included or
incorporated by reference in the Prospectus do not comply in form
in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations and the Exchange Act and the related published rules
and regulations thereunder, as applicable, or are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal
year; or
(B) the unaudited capsule information, if any, included in
the Prospectus does not agree with the amounts set forth in the
unaudited consolidated financial statements from which it was
derived or was not determined on a basis substantially consistent
with that of the audited financial statements included or
incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year; or
(C) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than five days prior to the Closing Date, there was any material
change in the consolidated capital stock (other than issuances of
capital stock upon exercise of options and director stock grants)
or any material increase in consolidated long-term debt of the
Company and its subsidiaries or, at the date of the latest
available balance sheet read by such accountants, there was any
material decrease in consolidated net current assets or net
assets, as compared with amounts shown on the latest balance
sheet included or incorporated by reference in the Prospectus; or
(D) for the period from the date of the latest income
statement included or incorporated by reference in the Prospectus
to the closing date of the latest available income statement read
by such accountants there were any decreases, as compared with
the corresponding period of the previous year and with the period
of corresponding length ended the date of the latest income
statement included in the Prospectus, in consolidated sales, net
income or in the ratio of earnings to fixed charges;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(iv) they have carried out specified procedures, as requested by
the Underwriters, for the purpose of comparing specified dollar
amounts (or percentages derived from such dollar amounts) and other
financial information
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included in the Prospectus (in each case to the extent that such
dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus
for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a). No stop order
suspending the effectiveness of the Registration Statement or of any part
thereof shall have been issued and no proceedings for that purpose shall
have been instituted or, to the knowledge of the Company or any
Underwriter, shall be threatened by the Commission.
(c) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any downgrading in the rating of any senior debt
securities of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or
any public announcement that any such organization has under surveillance
or review its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (ii) any suspension
or limitation of trading in securities generally on the New York Stock
Exchange, Inc., or any setting of minimum prices for trading on such
exchange; (iii) any general banking moratorium declared by Federal or New
York authorities; or (iv) any outbreak or material escalation of major
hostilities in which the United States is involved, any declaration of war
by Congress or any other substantial national or international calamity or
emergency if, in the reasonable judgment of a majority in interest of the
Underwriters, including any Representatives, the effect of any such
outbreak, escalation, declaration, calamity or emergency is so material and
adverse so as to make it impractical or inadvisable to proceed with
completion of the sale of and payment for the Securities.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of White & Case LLP, counsel for the Company, to the effect
that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus;
(ii) The Indenture has been duly authorized, executed and
delivered by the Company and has been duly qualified under the Trust
Indenture Act; the Securities have been duly authorized; the
Securities other than any Contract
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Securities have been duly executed, issued and delivered; the
Indenture and the Securities other than any Contract Securities
constitute, and any Contract Securities, when executed, authenticated,
issued and delivered in the manner provided in the Indenture and sold
pursuant to Delayed Delivery Contracts, will constitute, valid and
legally binding obligations of the Company enforceable in accordance
with their 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 the Company
or any of its material properties is required to be obtained or made
by the Company for the consummation of the transactions contemplated
by the Terms Agreement (including the provisions of this Agreement) in
connection with the issuance or sale of the Securities by the Company,
except such as have been obtained and made under the Act and the Trust
Indenture Act and such as may be required under state securities or
Blue Sky laws (as to which such counsel need express no opinion);
(iv) The execution, delivery and performance of the Indenture,
the Terms Agreement (including the provisions of this Agreement) and
any Delayed Delivery Contracts and the issuance and sale of the
Securities and compliance with the terms and provisions thereof will
not result in a breach or violation of any of the terms and provisions
of, or constitute a default under, the Restated Certificate of
Incorporation or By-Laws of the Company or any statute, rule,
regulation or order applicable to the Company or any of its
subsidiaries of which such counsel is aware of any federal or New York
State governmental agency or body or court having jurisdiction over
the Company or any of its material properties (other than those that
may be required under the Act and under applicable state securities or
Blue Sky laws as to which such counsel need express no opinion) and
the Company has full corporate power and authority to authorize, issue
and sell the Securities as contemplated by the Terms Agreement
(including the provisions of this Agreement);
(v) The registration statement relating to the 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
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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 the Company.
(e) The Representatives shall have received an opinion, dated the
Closing Date, from ▇▇▇ ▇. ▇▇▇▇▇▇, Vice President and General Counsel of the
Company, to the effect that:
(i) The Company has been duly qualified to do business and is in
good standing as a foreign corporation in all jurisdictions in which
its ownership of property or the conduct of its business requires such
qualification (except where the failure to so qualify would not have a
material adverse effect upon the Company and its subsidiaries taken as
a whole), and has all power and authority necessary to own its
properties and conduct the business in which it is engaged as
described in the Prospectus;
(ii) The execution, delivery and performance of the Indenture,
the Terms Agreement (including the provisions of this Agreement) and
any Delayed Delivery Contracts and the issuance and sale of the
Securities and compliance with the terms and provisions thereof will
not result in a breach or violation of any of the terms and provisions
of, or constitute a default under any order, rule or regulation
applicable to the Company or any of its subsidiaries of which such
counsel is aware of any court or governmental agency or body having
jurisdiction over the Company or any of its material properties or,
any material agreement or instrument to which the Company or any of
its material subsidiaries is a party or by which the Company or any
such subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, or the Restated Certificate
of Incorporation or By-Laws of the Company or any such subsidiary;
(iii) Such counsel is not aware of any consent, approval,
authorization or order of, or filing with, any governmental agency or
body or any court having jurisdiction over the Company or any of its
material properties that is required to be obtained or made by the
Company for the consummation of the transactions contemplated by the
Terms Agreement (including the provisions of this
9
Agreement) in connection with the issuance or sale of the Securities
by the Company, except such as may be required under the Act, the
Trust Indenture Act and under state securities or Blue Sky laws (as to
which such counsel need express no opinion);
(iv) The documents incorporated by reference in the Prospectus
(other than the financial statements and related schedules and other
financial and statistical data contained therein, as to which such
counsel needs express no opinion), when they were filed with the
Commission complied as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder; and nothing has come to such counsel's
attention which causes it to believe that any of such documents, when
such documents were so filed contained an untrue statement of a
material fact and omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made when such documents were so filed, not
misleading;
(v) Nothing has come to such counsel's attention which causes it
to believe that the registration statement relating to the Registered
Securities, as of its effective date, the Registration Statement or
the Prospectus, as of the date of the Terms Agreement, or any such
amendment or supplement, as of its date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading; it being understood that
such counsel need express no opinion as to the financial statements
and schedules or other financial or statistical data contained in any
of the above-mentioned documents; and
(vi) The statements contained in the Company's Annual Reports on
Form 10-K under the heading "Item 3. Legal Proceedings", and the
statements contained in the Company's Quarterly Reports on Form 10-Q
under the heading "Item 1. Legal Proceedings", in each case, which are
incorporated or deemed to be incorporated by reference in the
Prospectus, insofar as such statements constitute a summary of the
legal documents, matters or proceedings referred to therein, fairly
present the information called for with respect to such legal
documents, matters and proceedings.
(f) The Representatives shall have received from Underwriter's
Counsel, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Company, the
validity of the Securities, the Registration Statement, the Prospectus and
other related matters as they may require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(g) The Representatives shall have received a certificate, dated the
Closing Date, of the Chairman of the Board of Directors, President and
Chief Executive Officer,
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an Executive Vice President, any Senior Vice President or any Vice
President and a principal financial or accounting officer from the Company
in which such officers, to their knowledge, shall state that the
representations and warranties of the Company in this Agreement are true
and correct at and as of the Closing Date, that the Company has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date, that no
stop order suspending the effectiveness of the Registration Statement or of
any part thereof has been issued and no proceedings for that purpose have
been instituted by the Commission and that, subsequent to the date of the
most recent financial statements in the Prospectus, there has been no
material adverse change in the financial position or results of operation
of the Company and its subsidiaries taken as a whole except as set forth in
or contemplated by the Prospectus or as described in such certificate.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as they reasonably request.
6. Indemnification and Contribution. (a) The Company will 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 the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter specifically for use
therein; and provided, further, that the Company shall not be liable to any
Underwriter under the indemnity agreement in this subsection (a) with respect to
any preliminary prospectus or preliminary prospectus supplement to the extent
that any such loss, claim, damage or liability of such Underwriter results from
the fact that such Underwriter sold designated securities to a person to whom
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the Prospectus as then amended or supplemented in any case where
such delivery is required by the Act if the Company has previously furnished
copies thereof to such Underwriter and the loss, claim, damage or liability
results from an untrue statement or omission of a material fact contained in the
preliminary prospectus which was corrected in the Prospectus (as then amended,
supplemented or modified).
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any
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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 by such
Underwriter specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement.
(d) If the indemnification provided for in this Section is unavailable
(other than as a result of the provisos contained in subsection (a)) or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in subsection (a) or (b)
above in such proportion as is appropriate to reflect the relative fault of the
Company on the one hand and of the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations, including
relative benefit. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
subsection (d) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or any other method of allocation
which does not take account of the equitable
12
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 the Company 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, to each officer of the Company who
has signed the Registration Statement and to each person, if any, who controls
the Company within the meaning of the Act.
7. Default of Underwriters. (a) If any Underwriter shall default in
its obligation to purchase the Securities which it has agreed to purchase under
the Terms Agreement relating to such Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Securities on the terms contained herein. If within thirty-six
hours after such default by any Underwriter the Representatives do not arrange
for the purchase of such Securities, then the Company shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties satisfactory to the Representatives to purchase such Securities on
such terms. In the event that, within the respective prescribed period, the
Representatives notify the Company that they have so arranged for the purchase
of such Securities, or the Company notifies the Representatives that it has so
arranged for the purchase of such Securities, the Representatives or the Company
shall have the right to postpone the Closing Date for such Securities for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus as
amended or supplemented, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the reasonable opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this section with like
effect as if such person had originally been a party to the Terms Agreement with
respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Registered Securities of a defaulting Underwriter or Underwriters by the
Representatives and the
13
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 or the Company, except for the expenses to be borne by the Company,
and the Underwriters as provided in Section 4(g) and the indemnity and
contribution agreements in Section 6; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person and will survive delivery of and
payment for the Securities. If the Terms Agreement is terminated pursuant to
Section 7 or if for any reason the purchase of the Securities by the
Underwriters under the Terms Agreement is not consummated, the Company shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 4(g) and the respective obligations of the Company and the Underwriters
pursuant to Section 6 shall remain in effect. If the purchase of the Securities
by the Underwriters is not consummated for any reason, other than solely because
of the termination of this Agreement pursuant to Section 7 or the occurrence of
any event specified in clause (ii), (iii) or (iv) of Section 5(c), the Company
will reimburse the Underwriters for all out-of-pocket expenses (including fees
and disbursements of counsel) reasonably incurred by them in connection with the
offering of the Securities, but the Company shall be under no further liability
to any Underwriter except as provided in Section 6.
9. Notices. All statements, requests, notices and agreements hereunder
shall be in writing and if to the Underwriters shall be sufficient in all
respects, if delivered or sent by first class mail, telex, or facsimile
transmission (confirmed in writing by overnight courier sent on the day of such
facsimile transmission) to the address of the Representatives as set forth in
the Terms
14
Agreement; and if to the Company shall be sufficient in all respects if
delivered or sent by first class mail, telex, or facsimile transmission
(confirmed in writing by overnight courier sent on the day of such facsimile
transmission) to the address of the Company set forth in the Registration
Statement, Attention: Secretary.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the Company and such Underwriters as are identified in Terms
Agreements and their respective 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.
15
If the foregoing is in accordance with your understanding, please sign
and return three counterparts hereof.
Very truly yours,
NEWMONT MINING CORPORATION
By:___________________________
Name:
Title:
Accepted as of the date hereof:
[Names of Underwriters]
By: [Representatives]
By: ______________________
Name:
Title:
On behalf of each of the Underwriters
16
ANNEX I
NEWMONT MINING CORPORATION, Issuer
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 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"). The Registered Securities 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 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.
Annex I
Page 2
If the foregoing is in accordance with your understanding, please sign
and return to us _______ counterparts hereof, and upon acceptance hereof by you,
on behalf of the Underwriters, this letter and such acceptance hereof, including
the provisions of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is or will be pursuant to the authority set forth in a form
of Agreement among Underwriters, the form of which shall be supplied to the
Company upon request.
Very truly yours,
NEWMONT MINING CORPORATION
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
Indenture:
Indenture, dated as of __________, ____, [, as supplemented
by ________,] between the Company and ___________________,
as Trustee
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates]
Redemption Provisions:
[No provisions for redemption]
[The Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the
Company, in the amount of $ _____ or an integral multiple
thereof, __________]
[on or after _________, _________ at the following
redemption prices (expressed in percentages of principal
amount): If [redeemed on or before _________, ___ %, and if]
redeemed during the 12-month period beginning ___________,
Schedule II
Page 2
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 [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)
Schedule II
Page 3
then current weekly average per annum secondary market yield
for ______-month certificates of deposit over (ii) then
current interest yield equivalent of the weekly average per
annum market discount rate for ______-month Treasury bills);
[from _________ and thereafter the rate will be the then
current interest yield equivalent plus ____ % of Interest
Differential].]
Closing Date:
[Time and date], ____
Closing Location:
Delayed Delivery:
[None] [Underwriters' commission shall be ___ % of the principal
amount of Securities for which Delayed Delivery Contracts have been
entered into. Such commission shall be payable to the order
of_________________________________________.]
Names and addresses of Representatives:
Address for Notices, etc.:
[Other Terms]1
___________________________
1 A description of particular tax, accounting or other unusual features of
the Securities should be set forth, or referenced to an attached and
accompanying description, if necessary to the issuer's understanding of the
transaction contemplated. Such a description might appropriately be in the
form in which such features will be described in the Prospectus for the
offering.
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"), offered by the Company's Prospectus dated _____, ___ and a
Prospectus Supplement dated _____, ___ relating thereto, receipt of copies of
which is hereby acknowledged, at ___% of the principal amount thereof plus
accrued interest, if any, and on the further terms and conditions set forth in
this Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
______________________
* Insert date which is third full business day prior to Closing Date under
the Terms Agreement.
Annex II
Page 2
[The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the principal amounts
set forth below:
Delivery Date Principal Amount
______________ ________________
______________ ________________
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase
for delivery on [the] [each] Delivery Date shall be made to the Company or its
order by certified or official bank check in [New York] Clearing House (next
day) funds at the office of at .M. on [the] [such] Delivery Date upon delivery
to the undersigned of the Securities to be purchased by the undersigned [for
delivery on such Delivery Date] in definitive fully registered form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to [the] [such] Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on [the] [each] Delivery Date shall
be subject only to the conditions that (1) investment in the Securities shall
not at [the] [such] Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total principal amount of
the Securities less the principal amount thereof covered by this and other
similar Contracts. The undersigned represents that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by [a copy] [copies] of the opinion[s] of counsel for
the Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its
Annex II
Page 3
address set forth below. This will become a binding contract between the Company
and the undersigned when such counterpart is so mailed or delivered.
Yours very truly,
_____________________________________
(Name of Purchaser)
By:
__________________________________
_____________________________________
(Title of Signatory)
_____________________________________
_____________________________________
(Address of Purchaser)
Acepted, as of the above date.
NEWMONT MINING CORPORATION
By:________________________
[Insert Title]