Exhibit 1.1
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NEWMONT MINING CORPORATION
Equity Securities
Underwriting Agreement
November 5, 2003
J.P. Morgan Securities Inc.
UBS Securities LLC
As Representatives of the
several Underwriters listed
in Schedule I hereto
c/o J.P. Morgan Securities Inc.
277 Park Avenue
New York, NY 10172
Ladies and Gentlemen:
1. Introductory. Newmont Mining Corporation, a Delaware corporation
(the "Company"), proposes to issue and sell from time to time (i) shares of
common stock of the Company (the "Common Shares"), (ii) shares of a series of
preferred stock of the Company (the "Preferred Shares") which may be convertible
into Common Shares, (iii) depositary shares (the "Depositary Shares") which will
represent a fraction of a Preferred Share or (iv) warrants to purchase Common
Shares (the "Warrants") which may be sold separately or together with Common
Shares. The Common Shares, the Preferred Shares, the Depositary Shares and the
Warrants are hereinafter referred to as the "Securities". The Securities are
registered under the registration statement referred to in Section 2(a).
Particular issuances or series of the Securities will be sold pursuant
to a Terms Agreement referred to in Section 3 in the form of Annex I attached
hereto, for resale in accordance with the terms of offering determined at the
time of sale. Under such Terms Agreement, subject to the terms and conditions
hereof, the Company will agree to issue and sell, and the firm or firms
specified therein (the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), will agree to purchase, the amount of
Securities specified therein (the "Firm Securities"). In such Terms Agreement,
the Company also may grant to such Underwriters, subject to the terms and
conditions set forth therein, an option to purchase additional Securities in an
amount not to exceed the amount specified in such Terms Agreement (such
additional Securities are hereinafter referred to as the "Option Securities").
The Firm Securities and the Option Securities are hereinafter collectively
referred to as the "Offered Securities".
Each Common Share issued pursuant to a Terms Agreement referred to in
Section 3, upon conversion of Preferred Shares or Depositary Shares or upon
exercise of a Warrant will include one preferred share purchase right (the
"Junior Preferred Rights") entitling the holder thereof to purchase, under
certain circumstances, one one-thousandth of a share of Series A Junior
Participating Preferred Stock, par value $1.60 per share, of the Company,
subject
to adjustment. The Junior Preferred Rights are to be issued pursuant to a Rights
Agreement dated as of February 13, 2002, between the Company and Mellon Investor
Services LLC, as rights agent.
Preferred Shares issued pursuant to the Terms Agreement referred to in
Section 3 will be issued in accordance with a Certificate of Designations as
specified in such Terms Agreement (the "Certificate of Designations").
Depositary Shares issued pursuant to the Terms Agreement referred to in Section
3 will be issued under a Deposit Agreement (the "Deposit Agreement") between the
Company and a bank or trust company selected by the Company as specified in such
Terms Agreement (the "Depositary"). Warrants issued pursuant to the Terms
Agreement referred to in Section 3 will be issued under a Warrant Agreement (the
"Warrant Agreement") between a bank or trust company selected by the Company as
specified in such Terms Agreement (the "Warrant Agent").
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Securities Act"), a registration statement (File No. 333-87100), including a
prospectus, relating to the Securities. Such registration statement, as amended
at the time of any Terms Agreement referred to in Section 3, is hereinafter
referred to as the "Registration Statement", and the prospectus included in the
Registration Statement, as supplemented as contemplated by Section 3 to reflect
the terms of the Offered Securities and the terms of offering thereof, as first
filed with the Commission pursuant to and in accordance with Rule 424(b) ("Rule
424(b)") under the Securities Act, and including any prospectus used to offer
the Offered Securities in any other jurisdiction other than Canada, is
hereinafter referred to as the "Prospectus".
Any reference in this Agreement to the Registration Statement or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as
of the effective date of the Registration Statement or the date of such
preliminary prospectus or the Prospectus, as the case may be, and any reference
to "amend", "amendment" or "supplement" with respect to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to refer
to and include any documents filed after such date under the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Exchange Act") that are deemed to be incorporated
by reference therein.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) Registration Statement and Prospectus. The Registration Statement
has been declared effective by the Commission. No order suspending the
effectiveness of the Registration Statement has been issued by the
Commission and, to the knowledge of the Company, no proceeding for that
purpose has been initiated or threatened by the Commission. On the
applicable effective date of the Registration Statement and any amendment
thereto, the Registration Statement complied in all material respects with
the Securities Act and did not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein
not misleading, and on the date of the Terms Agreement referred to in
Section 3, the Registration Statement and the Prospectus will conform in
all material respects to the requirements of the Securities Act, and
neither of such documents will include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus, in
light of the circumstances under which they were made) not misleading,
except that the foregoing representations do not apply to statements in or
omissions from any of such documents made in reliance upon and in
conformity with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives
expressly for use in the Registration Statement, the Prospectus or any
amendment or supplement thereto.
On the date of issuance of the final receipt for the Canadian
Prospectus (as defined in Section 2(b)), the Canadian Prospectus complied
in all material respects with Canadian Securities Laws and did not include
any untrue statement of a material fact or omit to a state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and on the date of the Terms Agreement referred to in
Section 3, the Canadian Prospectus will conform in all material respects to
the requirements of Canadian Securities Laws (as defined in Section 2(b)),
and such document will not include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein in light of the circumstances
under which they were made not misleading, except that the foregoing
representations do not apply to statements in or omissions from any of such
documents made in reliance upon and in conformity with information relating
to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in the Canadian Prospectus or
any amendment or supplement thereto.
(b) Canadian Prospectus. The Company meets the requirements of the
securities legislation and the rules and regulations made thereunder, as
amended, in each of the provinces of Canada other than Quebec (the
"Qualifying Provinces") and the published policy statements of the
securities regulatory authority in each of the Qualifying Provinces (the
"Canadian Qualifying Authorities"), including National Instrument 71-101
The Multijurisdictional Disclosure System ("NI 71-101") and Companion
Policy 71-101CP (collectively, the "Canadian Securities Laws"), for use of
a MJDS shelf prospectus with respect to the Securities, has filed with the
Canadian Qualifying Authorities, designating the Ontario Securities
Commission (the "OSC") as the principal jurisdiction, a preliminary MJDS
shelf prospectus, a final MJDS shelf prospectus and an amended and restated
final MJDS shelf prospectus in respect of the Securities and has also filed
with the Canadian Qualifying Authorities a submission to jurisdiction and
appointment of agent for service of process on Form 71-101F1, and has been
issued a preliminary receipt by the OSC on behalf of the Canadian
Qualifying Authorities for such preliminary MJDS shelf prospectus, a final
receipt by the OSC on behalf of the Canadian Qualifying Authorities for
such final MJDS shelf prospectus and a receipt by the OSC on behalf of the
Canadian Qualifying Authorities for such amended and restated final MJDS
shelf prospectus and any amendments thereto, in the forms of
such preliminary, final and amended and restated MJDS shelf prospectuses
previously delivered, along with any documents (including any preliminary
form of prospectus supplement) filed in connection therewith and all
documents incorporated by reference therein, to the Representatives for
each of the Underwriters; no other document with respect to such MJDS shelf
prospectus and no amendment thereto or document incorporated by reference
therein has previously been filed or transmitted for filing with a Canadian
Qualifying Authority; and no order having the effect of preventing or
suspending the use of any prospectus or prospectus supplement relating to
the Securities has been issued and no proceeding for that purpose has been
initiated or threatened by a Canadian Qualifying Authority (such amended
and restated MJDS shelf prospectus, including any amendments to the form of
prospectus for which a final receipt was issued by the OSC on behalf of the
Canadian Qualifying Authorities and the documents incorporated by reference
therein, are hereinafter called, collectively, the "Canadian Prospectus";
and any reference to the Canadian Prospectus as amended or supplemented
shall be deemed to refer to the Canadian Prospectus as amended or
supplemented in relation to the Offered Securities in the form in which it
is first filed with the Canadian Qualifying Authorities pursuant to
Canadian Securities Laws).
(c) Incorporated Documents. Each document filed by the Company
pursuant to the Exchange Act that is incorporated by reference in the
Prospectus complied when so filed in all material respects with the
Exchange Act, and each document (other than documents incorporated by
reference therein relating solely to securities other than the Offered
Securities), if any, hereafter so filed and incorporated by reference in
the Prospectus, when such documents are filed with the Commission will
comply in all material respects with the Exchange Act and did not or will
not, as the case may be, when so filed contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(d) Financial Statements. The financial statements and the related
notes thereto included or incorporated by reference in the Registration
Statement and the Prospectus comply in all material respects with the
applicable requirements of the Securities Act and the Exchange Act, as
applicable, and present fairly the financial position of the Company and
its subsidiaries taken as a whole as of the dates indicated and the results
of their operations and the changes in their cash flows for the periods
specified; such financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods covered thereby, and the supporting schedules
included or incorporated by reference in the Registration Statement present
fairly the information required to be stated therein; the other financial
information included or incorporated by reference in the Registration
Statement and the Prospectus has been derived from the accounting records
of the Company and its subsidiaries and presents fairly the information
shown thereby; and the pro forma financial information and the
related notes thereto included or incorporated by reference in the
Registration Statement and the Prospectus has been prepared in accordance
with the applicable requirements of the Securities Act and the Exchange
Act, as applicable, and the assumptions underlying such pro forma financial
information were
reasonable when originally filed with the Commission and are set forth in
the Registration Statement and the Prospectus or the relevant document
incorporated by reference therein.
(e) No Material Adverse Change. Since the date of the most recent
financial statements of the Company included or incorporated by reference
in the Registration Statement and the Prospectus, (i) there has not been
any change in the capital stock (other than as a result of the exercise of
outstanding stock options or warrants of the Company), increase in
long-term debt of the Company and its subsidiaries taken as a whole, or any
dividend or distribution of any kind declared, set aside for payment, paid
or made by the Company on any class of capital stock of the Company or
Newmont Mining Corporation of Canada Limited (except for the dividends
declared on October 29, 2003 to be paid on December 17, 2003), or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the business, properties,
management, financial position, stockholders' equity, results of operations
or prospects of the Company and its subsidiaries taken as a whole; (ii)
neither the Company nor any of its subsidiaries has entered into any
transaction or agreement that is material to the Company and its
subsidiaries taken as a whole or incurred any liability or obligation,
direct or contingent, that is material to the Company and its subsidiaries
taken as a whole; and (iii) neither the Company nor any of its subsidiaries
has sustained any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor disturbance or dispute or any action, order or
decree of any court or arbitrator or governmental or regulatory authority,
except in each case as otherwise disclosed in or contemplated by the
Registration Statement and the Prospectus.
(f) Organization and Good Standing. The Company and each of its
Significant Subsidiaries, as defined in Rule 1-02 of Regulation S-X (the
"Significant Subsidiaries"), have been duly organized and are validly
existing and in good standing under the laws of their respective
jurisdictions of organization, are duly qualified to do business and are in
good standing in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses requires
such qualification, and have all power and authority necessary to own or
hold their respective properties and to conduct the businesses in which
they are engaged, except where the failure to be so qualified or have such
power or authority would not, individually or in the aggregate, have a
material adverse effect on the business, properties, management, financial
position, stockholders' equity, results of operations or prospects of the
Company and its subsidiaries taken as a whole (a "Material Adverse
Effect").
(g) Capitalization. All the outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid
and non-assessable and are not subject to any pre-emptive or similar
rights; except as described in or expressly contemplated by the Prospectus,
there are no outstanding rights (including, without limitation, pre-emptive
rights), warrants or options to acquire, or instruments convertible into or
exchangeable for, any shares of capital stock or other equity interest in
the Company, or any contract, commitment, agreement, understanding or
arrangement of
any kind relating to the issuance of any capital stock of the Company, any
such convertible or exchangeable securities or any such rights, warrants or
options, other than this Agreement; the capital stock of the Company
conforms in all material respects to the description thereof contained in
the Registration Statement and the Prospectus; and all the outstanding
shares of capital stock or other equity interests of each Significant
Subsidiary have been duly and validly authorized and issued, are fully paid
and non-assessable and are owned directly or indirectly by the Company,
free and clear of any lien, charge, encumbrance, security interest,
restriction on voting or transfer or any other claim of any third party,
except as described in Schedule 2(g) hereto.
(h) Due Authorization. The Company has full right, power and authority
to execute and deliver this Agreement and the Terms Agreement
(collectively, the "Transaction Documents") and to perform its obligations
hereunder and thereunder.
(i) Underwriting Agreement. Each of the Transaction Documents has been
duly authorized, executed and delivered by the Company and constitutes a
valid and binding obligation of the Company, subject as to the enforcement
of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium, or other laws affecting creditors' rights generally, from time
to time in effect and to general principles of equity and except as to the
provisions with respect to indemnification or contribution may be limited
by applicable law, regulation or public policy;
(j) The Securities. The Offered Securities to be issued and sold by
the Company hereunder have been duly authorized by the Company and, when
issued and delivered and paid for as provided herein, will be duly and
validly issued and will be fully paid and nonassessable and will conform to
the descriptions thereof in the Prospectus; and the issuance of the Offered
Securities is not subject to any preemptive or similar rights;
(k) No Violation or Default. Neither the Company nor any of its
subsidiaries is (i) in violation of its charter or by-laws or similar
organizational documents; (ii) in default, and no event has occurred that,
with notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject; or (iii) in violation of any law or statute or
any judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory authority, except, in the case of clauses (ii)
and (iii) above, for any such default or violation that would not,
individually or in the aggregate, have a Material Adverse Effect.
(l) No Conflicts. The execution, delivery and performance by the
Company of each of the Transaction Documents, the issuance and sale of the
Offered Securities and the consummation of the transactions contemplated by
the Transaction Documents will not (i) conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, (ii) result in any violation
of the provisions of the charter or by-laws or similar organizational
documents of the Company or any of its subsidiaries or (iii) result in the
violation of any law or statute or any judgment, order, rule or regulation
of any court or arbitrator or governmental or regulatory authority.
(m) No Consents Required. No consent, approval, authorization, order,
registration or qualification of or with any court or arbitrator or
governmental or regulatory authority is required for the execution,
delivery and performance by the Company of each of the Transaction
Documents, the issuance and sale of the Offered Securities and the
consummation of the transactions contemplated by the Transaction Documents,
except for the registration of the Offered Securities under the Securities
Act, the qualification of the Offered Securities for distribution by
prospectus under Canadian Securities Laws and such consents, approvals,
authorizations, orders and registrations or qualifications as may be
required under applicable state or other securities laws in connection with
the purchase and distribution of the Securities by the Underwriters.
(n) Independent Accountants. PricewaterhouseCoopers LLP, who have
certified certain financial statements of the Company and its subsidiaries,
are independent public accountants with respect to the Company and its
subsidiaries as required by the Securities Act.
(o) Compliance With Environmental Laws. The Company and its
subsidiaries (i) are in compliance with any and all applicable federal,
state, local and foreign laws, rules, regulations, decisions and orders
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, "Environmental Laws"); (ii) have received and are in
compliance with all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective businesses;
and (iii) have not received notice of any actual or potential liability for
the investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants, except in any such
case for any such failure to comply, or failure to receive required
permits, licenses or approvals, or liability as would not, individually or
in the aggregate, have a Material Adverse Effect.
(p) Accounting Controls. The Company and its subsidiaries maintain
systems of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for
assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(q) No Broker's Fees. Neither the Company nor any of its subsidiaries
is a party to any contract, agreement or understanding with any person
(other than this Agreement) that would give rise to a valid claim against
the Company or any of its subsidiaries or any Underwriter for a brokerage
commission, finder's fee or like payment in connection with the offering
and sale of the Offered Securities.
3. Purchase and Offering of Firm Securities. The obligation of the
Company to issue and sell any Firm Securities, the obligation of the
Underwriters to purchase the Firm Securities, and, if applicable, the Company's
granting to the Underwriters of an option to purchase any Option Securities,
will be set forth in a Terms Agreement (the "Terms Agreement") which shall be in
the form of an executed writing (which may be handwritten), and may be evidenced
by an exchange of telegraphic or any other rapid transmission device designed to
produce a written record of communications transmitted at the time the Company
determines to sell the Firm Securities. The Terms Agreement will incorporate by
reference the provisions of this Agreement, except as otherwise provided
therein, and will specify the following: the firms which will be Underwriters
(other than the Representatives); the aggregate amount of the Firm Securities,
and, if applicable, the Option Securities; the terms of any option granted by
the Company to the Underwriters to purchase Option Securities; the amount of
Firm Securities to be purchased by each Underwriter; the initial public offering
price of the Offered Securities; the purchase price to be paid by the
Underwriters; and, if the Offered Securities are Preferred Shares, Depositary
Shares or Warrants, the terms thereof including, but not limited to, in the case
of Preferred Shares (including those represented by Depositary Shares), the
designation thereof, the dividend rate (or method of calculation), the dates on
which dividends will be payable, whether such dividends will be cumulative or
noncumulative and, if cumulative, the dates from which dividends will commence
to cumulate, any redemption or sinking fund provisions, and the terms of
conversion, if any, and, in the case of Depositary Shares, the fraction of the
relevant Preferred Share represented thereby and, in the case of Warrants, the
expiration date, the exercise price and the other terms for the exercise
thereof. The Terms Agreement will also specify the place of delivery and payment
for the Offered Securities and any details of the terms of offering that should
be reflected in the prospectus supplement relating to the offering of the
Offered Securities.
The time and date of delivery and payment of the Firm Securities will
be the time and date specified in the Terms Agreement, or such other time not
later than seven full business days thereafter as the Representatives and the
Company agree as the time for payment and delivery of the Firm Securities (such
time and date, being herein and in the Terms Agreement referred to as the "Firm
Closing Date"). The time and date of delivery and payment of the Option
Securities, if any, will be the time and date specified by the Underwriters as
provided in the Terms Agreement, which may be the Firm Closing Date, but shall
not be more than seven business days after the exercise of the option nor in any
event prior to the Firm Closing Date (such time and date being herein and in the
Terms Agreement referred to as the "Option Closing Date"). As used herein and in
the Terms Agreement, the term "Closing Date" means, with
respect to the Firm Securities, the Firm Closing Date and, with respect to the
Option Securities, the Option Closing Date.
The obligations of the Underwriters to purchase the Offered Securities
will be several and not joint. It is understood that the Underwriters propose to
offer the Offered Securities for sale as set forth in the Prospectus and the
Canadian Prospectus. The Offered Securities delivered to the Underwriters on the
Closing Date will be in such denominations and registered in such names as the
Underwriters may request.
4. Certain Agreements of the Company. The Company covenants and agrees
with each of the several Underwriters that, in connection with each offering of
Offered Securities:
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b). The Company will file on a timely
basis all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act during the Prospectus
Delivery Period (as defined below); and the Company will furnish copies of
the Prospectus to the Underwriters in New York City prior to 10:00 A.M.,
New York City time, on the business day next succeeding the date of the
Terms Agreement or as promptly as practicable thereafter in such quantities
as the Representatives may reasonably request. The Company will file the
Canadian Prospectus with the Canadian Qualifying Authorities in accordance
with NI 71-101 and furnish copies of the Canadian Prospectus to the
Canadian affiliates of the Underwriters in Toronto prior to 10:00 A.M.,
Toronto time, on the business day next succeeding the date of the Terms
Agreement or as promptly as practicable thereafter in such quantities as
the Representatives may reasonably request.
(b) The Company will deliver, without charge to each Underwriter (A) a
conformed copy of the Registration Statement as originally filed and each
amendment thereto (without exhibits) and (B) during the Prospectus Delivery
Period, as many copies of the Prospectus (including all amendments and
supplements thereto and documents incorporated by reference therein) as the
Representatives may reasonably request. As used herein, the term
"Prospectus Delivery Period" means such period of time after the first date
of the public offering of the Offered Securities as in the opinion of
counsel for the Underwriters a prospectus relating to the Offered
Securities is required by law to be delivered in connection with sales of
the Offered Securities by any Underwriter or dealer.
(c) Before filing any amendment or supplement to the Registration
Statement, the Prospectus or the Canadian Prospectus during the Prospectus
Delivery Period, the Company will furnish to the Representatives and
counsel for the Underwriters a copy of the proposed amendment or supplement
for review and will not file any such proposed amendment or supplement to
which the Representatives reasonably object.
(d) During the Prospectus Delivery Period, the Company will advise the
Representatives promptly, and confirm such advice in writing, (i) when any
amendment to the Registration Statement has been filed or becomes
effective; (ii) when any
supplement to the Prospectus or Canadian Prospectus or any amendment to the
Prospectus or Canadian Prospectus has been filed; (iii) of any request by
the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or any request by the Canadian
Qualifying Authorities for amendment or supplement to the Canadian
Prospectus or the receipt of any comments from the Commission relating to
the Registration Statement or any other request by the Commission or the
Canadian Qualifying Authorities for any additional information; (iv) of the
issuance by the Commission or a Canadian Qualifying Authorities of any
order suspending the effectiveness of the Registration Statement or
preventing or suspending the use of any preliminary prospectus or the
Prospectus or the Canadian Prospectus or the initiation or threatening of
any proceeding for that purpose; and (v) of the receipt by the Company of
any notice with respect to any suspension of the qualification of the
Offered Securities for offer and sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose; and the Company will use
its best efforts to prevent the issuance of any such order suspending the
effectiveness of the Registration Statement, preventing or suspending the
use of any preliminary prospectus or the Prospectus or Canadian Prospectus
or suspending any such qualification of the Offered Securities and, if any
such order is issued, will obtain as soon as possible the withdrawal
thereof.
(e) If during the Prospectus Delivery Period (i) any event shall occur
or condition shall exist as a result of which the Prospectus or Canadian
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein, in
the light of the circumstances existing when the Prospectus is delivered to
a purchaser, not misleading or (ii) it is necessary to amend or supplement
the Prospectus or Canadian Prospectus to comply with law, the Company will
immediately notify the Representatives thereof and forthwith prepare and,
subject to paragraph (c) above, file with the Commission or Qualifying
Canadian Authorities, as applicable, and furnish to the Representatives and
to such dealers as the Representatives may designate, such amendments or
supplements to the Prospectus and Canadian Prospectus as may be necessary
so that the statements in the Prospectus or Canadian Prospectus as so
amended or supplemented will not, in the light of the circumstances
existing when the Prospectus or Canadian Prospectus is delivered to a
purchaser, be misleading, or so that the Prospectus or Canadian Prospectus
will comply with law. 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.
(f) The Company will make generally available to its security holders
and the Representatives as soon as practicable, an earnings statement of
the Company and its subsidiaries that satisfies the provisions of Section
11(a) of the Securities Act and Rule 158 of the Commission promulgated
thereunder covering a period of at least twelve months beginning with the
first fiscal quarter of the Company occurring after the "effective date"
(as defined in Rule 158) of the Registration Statement.
(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 Securities Act and
qualification of the Securities for distribution by prospectus under
Canadian Securities Laws and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any
preliminary prospectus supplement and the Prospectus and amendments and
supplements thereto and the Canadian Prospectus and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost
of printing any Agreement among Underwriters, this Agreement, any Terms
Agreement, any Certificate of Designations, any Deposit Agreement, any
Warrant Agreement, any Blue Sky Memorandum and any other documents in
connection with the offering, purchase, sale and delivery of the Offered
Securities; (iii) all expenses in connection with the qualification of the
Offered Securities for offering and sale under state securities laws as
provided in Section 4(f), including the reasonable fees and disbursements
of counsel for the Underwriters in connection with such qualification and
in connection with the Blue Sky survey; (iv) any fees charged by securities
rating services for rating the Offered Securities; (v) any filing fees
incident to any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Offered Securities; (vi) the
cost of preparing the Offered Securities and any Common Shares issuable
upon conversion or exercise thereof; (vii) the fees and expenses in
connection with the listing, if any, of the Offered Securities or any
Common Shares issuable upon conversion or exercise thereof; (viii) the fees
and expenses of any transfer agent relating to any Common Shares or any
Preferred Shares; (ix) the fees and expenses of any Depositary relating to
any Depositary Shares; (x) the fees and expenses of any Warrant Agent
relating to any Warrants; (xi) expenses incurred by the Company in
connection with any "road show" presentation to potential investors; and
(xii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in
this Section; provided, however, that, except as provided in this Section,
Section 6 and Section 8 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Offered Securities by them, and any advertising
expenses they incur connected with any offers they may make.
(h) If and to the extent so provided in the Terms Agreement referred
to in Section 3, the Company, for the period therein provided, will not,
directly or indirectly, sell, contract to sell or otherwise dispose of
certain of its securities as specified in such Terms Agreement.
(i) The Company will arrange for the qualification of the Offered
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Representatives reasonably designate and will continue
such qualifications in effect so long as required for the distribution of
the Offered Securities; provided, however, that in no event shall the
Company be required to qualify as a foreign corporation or as a dealer in
securities or to take any action that would subject it to general or
unlimited service of process in any such jurisdiction.
(j) The Company will apply the net proceeds from the sale of the
Offered Securities as described in the Prospectus under the heading "Use of
Proceeds".
(k) The Company will not take, directly or indirectly, any action
designed to or that could reasonably be expected to cause or result in any
stabilization or manipulation of the price of the Offered Securities.
(l) The Company will use its reasonable efforts to list, subject to
notice of issuance, the Offered Securities on the New York Stock Exchange
(the "Exchange").
5. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
Firm Closing Date and the Option Securities on the Option Closing Date will be
subject to the accuracy of the written statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company of its
covenants and other obligations hereunder and to the following additional
conditions precedent:
(a) On the date of this Agreement and on the Firm Closing Date or the
Option Closing Date, as the case may be, Pricewaterhouse Coopers LLP shall
have furnished to the Representatives, at the request of the Company,
letters, dated the respective dates of delivery thereof and addressed to
the Underwriters, in form and substance satisfactory to the
Representatives, containing statements and information of the type
customarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information
contained or incorporated by reference in the Registration Statement and
the Prospectus; provided, that the letter delivered on the Firm Closing
Date or the Option Closing Date, as the case may be shall use a "cut-off"
date no more than three business days prior to such Firm Closing Date or
such Option Closing Date, as the case may be.
(b) The Prospectus shall have been timely filed with the Commission in
accordance with the Securities Act and Section 4(a) of this Agreement. The
Canadian Prospectus shall have been timely filed with the Canadian
Qualifying Authorities in accordance with Canadian Securities Laws and
Section 4(a) of this Agreement. No order suspending the effectiveness of
the Registration Statement or of any part thereof or the use of the
Canadian Prospectus shall have been issued and no proceeding for that
purpose shall be pending before or, to the knowledge of the Company,
threatened by the Commission or a Canadian Qualifying Authority; and all
requests by the Commission or a Canadian Qualifying Authority for
additional information that affect the Registration Statement or the
Prospectus shall have been complied with to the reasonable satisfaction of
the Representatives.
(c) The representations and warranties of the Company contained herein
shall be true and correct on the date hereof and on and as of the Firm
Closing Date or the Option Closing Date, as the case may be; and the
statements of the Company and its officers made in any certificates
delivered pursuant to this Agreement shall be true and correct on and as of
the Firm Closing Date or the Option Closing Date, as the case may be.
(d) Subsequent to the execution and delivery of the Terms Agreement,
there shall not have occurred (i) any downgrading in the rating accorded
any securities or
preferred stock of or guaranteed by the Company by any "nationally
recognized statistical rating organization" (as such term is defined by the
Commission for purposes of Rule 436(g)(2) under the Securities Act), or any
public announcement that any such organization has under surveillance or
review, or that it has changed its outlook with respect to, its rating of
any securities or preferred stock of or guaranteed by the Company (other
than an announcement with positive implications of a possible upgrading);
or (ii) any event or condition of a type described in Section 2(e) hereof,
which event or condition is not described in the Prospectus (excluding any
amendment or supplement thereto) and the effect of which in the judgment of
the Representatives makes it impracticable or inadvisable to proceed with
the offering, sale or delivery of the Offered Securities on the Firm
Closing Date or the Option Closing Date, as the case may be, on the terms
and in the manner contemplated by this Agreement, the Prospectus and the
Canadian Prospectus.
(e) The Representatives shall have received on and as of the Firm
Closing Date or the Option Closing Date, as the case may be, a certificate
of the Chairman of the Board of Directors and Chief Executive Officer, the
President, any Executive Vice President, any Senior Vice President or any
Vice President and the Chief Financial Officer or Chief Accounting Officer
of the Company (i) confirming that such officers have carefully reviewed
the Registration Statement, the Prospectus and the Canadian Prospectus and,
to the best knowledge of such officers, the representation set forth in
Section 2(a) hereof is true and correct, (ii) confirming that the other
representations and warranties of the Company in this Agreement are true
and correct and that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to such Closing Date and (iii) to the effect set forth in
paragraphs (b) and (d) (i) above.
(f) The Representatives shall have received an opinion, dated the Firm
Closing Date or the Option Closing Date, as the case may be, of White &
Case LLP, counsel for the Company, to the effect (to the extent applicable
to the Offered Securities):
(i) Each of the Company and Newmont USA Limited has been duly
incorporated and is an existing corporation in good standing under the
laws of Delaware, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus;
(ii) The shares of capital stock of the Company outstanding on
the Closing Date have been duly authorized, are validly issued, fully
paid and non-assessable, and conform in all material respects as to
legal matters to the description thereof contained in the Prospectus;
(iii) If the Offered Securities are Common Shares, the Common
Shares have been duly authorized and validly issue, fully paid and
non-assessable; and the issuance of such Common Shares is not subject
to the preemptive rights of any stockholder of the Company;
(iv) If the Offered Securities are Preferred Shares or Depositary
Shares, the Preferred Shares have been duly authorized and validly
issued and, when countersigned by the transfer agent therefor and, if
applicable, when deposited pursuant to the Deposit Agreement against
issuance of Depositary Shares and when the Preferred Shares or the
Depositary Shares, as the case may be, are sold to the Underwriters
against payment therefor pursuant to this Agreement and the Terms
Agreement, will be validly issued, fully paid and non-assessable; and
the issuance and, if applicable, deposit of such Preferred Shares is
not subject to the preemptive rights of any stockholder of the
Company;
(v) If the Offered Securities are Depositary Shares, the
depositary receipts (the "Depositary Receipts"), when issued and
delivered pursuant to the Deposit Agreement and this Agreement and the
Terms Agreement, will entitle the holders thereof to the rights
specified in such Depositary Receipts and in the Deposit Agreement;
(vi) If the Offered Securities are Preferred Shares or Depositary
Shares, the Certificate of Designations of the Company creating the
Preferred Shares has been duly filed with the Secretary of State of
Delaware and with all other offices where such filing is required;
(vii) If the Offered Securities are Depositary Shares, the
Deposit Agreement has been duly authorized, executed and delivered by
the Company, and the Deposit Agreement constitutes a valid and legally
binding obligation of the Company enforceable in accordance with its
terms, except as the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, or other similar
laws affecting the enforcement of creditors' rights generally, or by
general equitable principles (regardless of whether the issue of
enforceability is considered in a proceeding in equity or at law);
(viii) If the Offered Securities are Preferred Shares that are
convertible into Common Shares, or Depositary Shares evidencing
fractions of such Preferred Shares, the Common Shares have been duly
authorized and reserved for issuance by the Company upon conversion of
the Preferred Shares, and when so issued and countersigned by the
transfer agent therefor, will be validly issued, fully paid and
non-assessable; and the issuance of such Common Shares will not be
subject to the preemptive rights of any stockholder of the Company;
(ix) If the Offered Securities are Warrants, the Warrants have
been duly authorized, executed and delivered by the Company and, when
counter-signed by the Warrant Agent and sold to the Underwriters
against payment therefor pursuant to this Agreement and the Terms
Agreement, will constitute valid and legally binding obligations of
the Company enforceable in accordance with their terms, except as the
enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, or other similar laws affecting the
enforcement of creditor's rights generally, or by general equitable
principles
(regardless of whether the issue of enforceability is considered in a
proceeding in equity or at law);
(x) If the Offered Securities are Warrants, the Warrant Agreement
has been duly authorized, executed and delivered by the Company, and
the Warrant Agreement constitutes a valid and legally binding
obligation of the Company enforceable in accordance with its terms,
except as the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights generally, or by
general equitable principles (regardless of whether the issue of
enforceability is considered in a proceeding in equity or at law);
(xi) If the Offered Securities are Warrants, the Common Shares
have been duly authorized and reserved for issuance by the Company
upon exercise of the Offered Securities, and when so issued and
countersigned by the transfer agent therefor, will be validly issued,
fully paid and non-assessable; and the issuance of such Common Shares
will not be subject to the pre-emptive rights of any stockholder of
the Company;
(xii) The Offered Securities conform in all material respects to
the description thereof contained in the Prospectus;
(xiii) The Company has full corporate power and authority to
authorize, issue and sell the Offered Securities as contemplated by
the Terms Agreement (including the provisions of this Agreement) and
all action required to be taken for the due and proper authorization,
execution and delivery of each of the Transaction Documents and the
consummation of the transactions contemplated thereby have been duly
and validly taken.
(xiv) Each of the Transaction Documents has been duly authorized,
executed and delivered by the Company and constitutes a valid and
legally binding agreement of the Company enforceable against the
Company in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally or by equitable principles relating to
enforceability and as rights to indemnity and contribution may be
limited by United States federal or state securities laws or public
policy.
(xv) No consent, approval, authorization or order of, or filing
with, any New York State or Federal governmental agency or body or any
New York State or Federal court having jurisdiction over the Company
or any of its material properties is required to be obtained or made
by the Company for the consummation of the transactions contemplated
by the Terms Agreement (including the provisions of this Agreement),
any Warrant Agreement and any Deposit Agreement, except such as have
been obtained and made under the Securities Act and such as may be
required under state securities or Blue Sky laws (as to which such
counsel need express no opinion);
(xvi) The execution, delivery and performance of the Terms
Agreement (including the provisions of this Agreement), any Deposit
Agreement and any Warrant Agreement and the issuance and sale of the
Offered Securities and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, the 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 Securities Act and under applicable state
securities or Blue Sky laws as to which such counsel need express no
opinion);
(xvii) The Registration Statement was declared effective under
the Securities Act as of the date and time specified in such opinion;
the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) under the Securities Act specified in such
opinion on the date specified therein; and no order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose is pending or, to the knowledge of such
counsel, threatened by the Commission;
(xviii) The statements set forth in the Prospectus under the
heading "Description of Our Capital Stock", to the extent that they
constitute summaries of the terms of the Offered Securities, matters
of law or regulation or legal conclusions, fairly summarize in all
material respects the matters described therein; and
(xix) The registration statement relating to the Securities, as
of its effective date, the Registration Statement and the Prospectus,
as of the date of the Terms Agreement, and any amendment or supplement
thereto, as of its date, appeared on their face to comply as to form
in all material respects with the requirements of the Securities Act;
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.
(g) The Representatives shall have received an opinion, dated the Firm
Closing Date or the Option Closing Date, as the case may be, from Britt D.
Banks, Esq., Vice President and General Counsel of the Company (subject to
customary qualifications furnished to the Representatives), to the effect
that:
(i) Each of the Company and each of the Significant Subsidiaries
has been duly incorporated and is an existing corporation in good
standing in its jurisdiction of organization and has been duly
qualified to do business and is in good standing as a foreign
corporation in all jurisdictions in which its ownership of property or
the conduct of its business requires such qualification (except where
the failure to so qualify would not have a Material Adverse Effect),
and has all power and authority necessary to own its properties and
conduct the business in which it is engaged as described in the
Prospectus;
(ii) The execution, delivery and performance of the Terms
Agreement (including the provisions of this Agreement), any Warrant
Agreement and any Deposit Agreement and the issuance and sale of the
Offered Securities and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under any order, rule or
regulation applicable to the Company or any of its subsidiaries of
which such counsel is aware of any court or governmental agency or
body having jurisdiction over the Company or any of its material
properties or, any material agreement or instrument to which the
Company or any subsidiary is a party or by which the Company or any
such subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, or the Restated Certificate
of Incorporation or By-Laws of the Company or any such subsidiary,
which breach or violation, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect;
(iii) Such counsel is not aware of any consent, approval,
authorization or order of, or filing with, any governmental agency or
body or any court having jurisdiction over the Company or any of its
material properties that is required to be obtained or made by the
Company for the consummation of the transactions contemplated by the
Terms Agreement (including the provisions of this Agreement), any
Warrant Agreement and any Deposit Agreement, except such as may be
required under the Act and under state securities or Blue Sky laws (as
to which such counsel need express no opinion);
(iv) To the best knowledge of such counsel, except as described
in the Prospectus, there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending to which the
Company or any of its subsidiaries is or may be a party or to which
any property of the Company or any of its subsidiaries is or may be
the subject which, individually or in the aggregate, if determined
adversely to the Company or any of its subsidiaries, could reasonably
be expected to have a Material Adverse Effect; and to the knowledge of
such counsel, and except as described in the Prospectus, no such
investigations, actions, suits or proceedings are threatened or
contemplated by any governmental or regulatory authority or threatened
by others.
(v) The documents incorporated by reference in the Prospectus
(other than the financial statements and related schedules and other
financial and statistical data contained therein, as to which such
counsel need express no
opinion), when they were filed with the Commission complied as to form
in all material respects with the requirements of the Exchange Act;
and nothing has come to such counsel's attention that causes it to
believe that any of such documents, when such documents were so filed
contained an untrue statement of a material fact and omitted to state
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
documents were so filed, not misleading;
(vi) Nothing has come to such counsel's attention that causes it
to believe that the Registration Statement relating to the Securities,
as of its effective date, the Registration Statement or the
Prospectus, as of the date of the Terms Agreement, or any such
amendment or supplement, as of its date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading; it being understood that
such counsel need express no opinion as to the financial statements
and schedules or other financial or statistical data contained in any
of the above-mentioned documents; and
(vii) The statements contained in the Company's Annual Reports on
Form 10-K/A under the heading "Item 3. Legal Proceedings", and the
statements contained in the Company's Quarterly Reports on Form 10-Q
under the heading "Item 1. Legal Proceedings", in each case, which are
incorporated or deemed to be incorporated by reference in the
Prospectus, insofar as such statements constitute a summary of the
legal documents, matters or proceedings referred to therein, fairly
present the information called for with respect to such legal
documents, matters and proceedings; and, to the best knowledge of such
counsel, (A) there are no current or pending legal, governmental or
regulatory actions, suits or proceedings that are required under the
Securities Act to be described in the Prospectus and that are not so
described and (B) there are no statutes, regulations or contracts and
other documents that are required under the Securities Act to be filed
as exhibits to the Registration Statement or described in the
Prospectus and that have not been so filed or described.
(h) The Offered Securities to be delivered on the Firm Closing Date or
Option Closing Date, as the case may be, shall have been approved for
listing on the New York Stock Exchange, subject to official notice of
issuance.
(i) The "lock-up" agreements, to the extent so provided for in the
Terms Agreement referred to in Section 3 and each in form and substance
satisfactory to the Representatives, between the Underwriters and the
executive officers (as defined under Rule 16a-1(f) of the Exchange Act) and
directors of the Company relating to sales and certain other dispositions
of shares of Offered Securities or certain other securities, delivered to
the Representatives on or before the date of the Terms Agreement, shall be
in full force and effect on the Firm Closing Date or the Option Closing
Date, as the case may be.
(j) The Representatives shall have received from counsel for the
Underwriters, such opinion or opinions, dated the Closing Date, with
respect to the incorporation of the Company, the validity of the Offered
Securities, the Registration Statement, the Prospectus and other related
matters as they may require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(k) On or prior to the Firm Closing Date or the Option Closing Date,
as the case may be, the Company shall have furnished to the Representatives
such further certificates and documents as the Representatives may
reasonably request.
All opinions, letters, certificates and evidence mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters. The Company will furnish the Representatives
with such conformed copies of such opinions, certificates, letters and documents
as they reasonably request.
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, its affiliates, directors and
officers and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages and liabilities (including,
without limitation, reasonable legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted, as such
fees and expenses are incurred), joint or several, that arise out of, or are
based upon, any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Prospectus (or any amendment or
supplement thereto), the Canadian Prospectus (or any amendment or supplement
thereto) or any preliminary prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages or liabilities arise out of, or are based upon, any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use therein, it being understood and agreed that
the only such information furnished by any Underwriter consists of the
information described as such in subsection (b) below; provided, that with
respect to any such untrue statement in or omission from any preliminary
prospectus, the indemnity agreement contained in this paragraph (a) shall not
inure to the benefit of any Underwriter to the extent that the sale to the
person asserting of any such loss, claim, damage or liability was an initial
resale by such Underwriter and any such loss, claim, damage or liability of or
with respect to such Underwriter results from the fact that both (i) to the
extent required by applicable law, a copy of the Prospectus or the Canadian
Prospectus was not sent or given to such person at or prior to the written
confirmation of the sale of such Offered Securities to such person and (ii) the
untrue statement in or omission from such preliminary prospectus was corrected
in the Prospectus or the Canadian Prospectus unless, in either case, such
failure to deliver the Prospectus or the Canadian Prospectus was a result of
non-compliance by the Company with the provisions of Section 4 hereof.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the indemnity set forth in paragraph (a) above, but
only with respect to any losses, claims, damages or liabilities that arise out
of, or are based upon, any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with any
information relating to such Underwriter agreed to be furnished to the Company
in writing by the Representatives pursuant to the Terms Agreement.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnification may be sought pursuant to either
paragraph (a) or (b) above, such person (the "Indemnified Person") shall
promptly notify the person against whom such indemnification may be sought (the
"Indemnifying Person") in writing; provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 6 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person
otherwise than under this Section 6. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others entitled to indemnification pursuant to this Section 6
that the Indemnifying Person may designate in such proceeding and shall pay the
fees and expenses of such counsel related to such proceeding, as incurred. In
any such proceeding, any Indemnified Person shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it
that are different from or in addition to those available to the Indemnifying
Person; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood and agreed that the Indemnifying Person shall not, in connection with
any proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be paid or reimbursed as they are incurred. Any such separate firm for any
Underwriter, its affiliates, directors and officers and any control persons of
such Underwriter shall be designated in writing by J.P. Morgan Securities Inc.
and any such separate firm for the Company, its directors, its officers who
signed the Registration Statement and any control persons of the Company shall
be designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. No Indemnifying Person shall, without the written consent of the
Indemnified Person,
effect any settlement of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party and indemnification
could have been sought hereunder by such Indemnified Person, unless such
settlement (x) includes an unconditional release of such Indemnified Person, in
form and substance reasonably satisfactory to such Indemnified Person, from all
liability on claims that are the subject matter of such proceeding and (y) does
not include any statement as to or any admission of fault, culpability or a
failure to act by or on behalf of any Indemnified Person.
(d) If the indemnification provided for in paragraphs (a) and (b)
above is unavailable to an Indemnified Person or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) but also the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other shall be deemed to be in the
same respective proportions as the net proceeds (before deducting expenses)
received by the Company from the sale of the Offered Securities and the total
underwriting discounts and commissions received by the Underwriters in
connection therewith, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate offering price of the Offered Securities. The
relative fault of the Company on the one hand and the Underwriters on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or by
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred
by such Indemnified Person in connection with any such action or claim.
Notwithstanding the provisions of this Section 6, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total underwriting discounts and commissions received by such
Underwriter with respect to the offering of the Offered Securities exceeds the
amount of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters'
obligations to contribute pursuant to this Section 6 are several in proportion
to their respective purchase obligations hereunder and not joint.
(f) The remedies provided for in this Section 6 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
Indemnified Person at law or in equity.
7. Termination. This Agreement and the Terms Agreement may be
terminated in the absolute discretion of the Representatives, by notice to the
Company, if after the execution and delivery of this Agreement and the Terms
Agreement and prior to the Firm Closing Date or, in the case of the Option
Securities, prior to the Option Closing Date (i) trading generally shall have
been suspended or materially limited on or by any of the New York Stock
Exchange; (ii) trading of any securities issued or guaranteed by the Company
shall have been suspended on any exchange; (iii) a general moratorium on
commercial banking activities shall have been declared by federal or New York
State authorities; or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis,
either within or outside the United States, that, in the judgment of the
Representatives, is material and adverse and makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the Offered
Securities on the Firm Closing Date or the Option Closing Date, as the case may
be, on the terms and in the manner contemplated by this Agreement, the Terms
Agreement and the Prospectus.
8. Default of Underwriters. (a) If any Underwriter shall default in
its obligation to purchase the Offered Securities which it has agreed to
purchase under the Terms Agreement relating to such Offered Securities, the
Representatives may in their discretion arrange for themselves or another party
or other parties to purchase such Offered Securities on the terms contained
therein. If within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Offered Securities, then
the Company shall be entitled to a further period of thirty-six hours within
which to procure another party or other parties satisfactory to the
Representatives to purchase such Offered Securities on such terms. In the event
that, within the respective prescribed periods, the Representatives notify the
Company that they have so arranged for the purchase of such Offered Securities,
or the Company notifies the Representatives that it has so arranged for the
purchase of such Offered Securities, the Representatives or the Company shall
have the right to postpone the Closing Date for the Offered Securities for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus as
amended or supplemented, or the Canadian Prospectus as amended or supplemented,
or in any other documents or arrangements, and the Company agrees to file
promptly any amendments or supplements to the Registration Statement, the
Prospectus or the Canadian Prospectus which in the reasonable opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this section with like
effect as if such person had originally been a party to the Terms Agreement with
respect to such Offered Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Offered Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate number of such Offered Securities which
remains unpurchased does not exceed one-eleventh of the aggregate number of the
Offered Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase on the applicable Closing Date the number
of Offered Securities which such Underwriter agreed to purchase under the Terms
Agreement relating to such Offered Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the amount
of Securities which such Underwriter agreed to purchase under such Terms
Agreement) of the Offered Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Offered Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate amount of Offered Securities which remains unpurchased exceeds
one-tenth of the aggregate amount of the Offered Securities, as referred to in
subsection (b) above, or if the Company shall not exercise the right described
in subsection (b) above to require non-defaulting Underwriters to purchase
Offered Securities of a defaulting Underwriter or Underwriters, then the Terms
Agreement relating to such Offered Securities (or, with respect to the Option
Closing Date, the obligations of the Underwriters to purchase, and of the
Company to sell, the Option Securities) shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company, except
for the expenses to be borne by the Company and the Underwriters as provided in
Section 4(g) and the indemnity and contribution agreements in Section 6; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person and will survive delivery of and
payment for the Offered Securities. If the Terms Agreement is terminated
pursuant to Section 7 or if for any reason the purchase of the Offered
Securities by the Underwriters under the Terms Agreement is not consummated, the
Company shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 4(g) and the respective obligations of the Company and the
Underwriters pursuant to Section 6 shall remain in effect. If the purchase of
the Offered Securities by the Underwriters is not consummated for any reason,
other than solely because of the termination of the Terms Agreement pursuant to
Section 7 or Section 8, the Company will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities, but
the Company shall be under no further liability to any Underwriter except as
provided in Section 6.
10. Notices. All statements, requests, notices and agreements
hereunder shall be in writing and if to the Underwriters shall be sufficient in
all respects, if delivered or sent by first class mail, telex, or facsimile
transmission (confirmed in writing by overnight courier sent on the day of such
facsimile transmission) to the address of the Representatives as set forth in
the
Terms Agreement; and if to the Company shall be sufficient in all respects if
delivered or sent by first class mail, telex, or facsimile transmission
(confirmed in writing by overnight courier sent on the day of such facsimile
transmission) to the address of the Company set forth in the Registration
Statement, Attention: Secretary.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the Company and such Underwriters as are identified in Terms
Agreements and their respective successors and the officers and directors and
controlling persons referred to in Section 6, and no other person will acquire
or have any right or obligation hereunder or by virtue of this Agreement. No
purchaser of any of the Offered Securities from any Underwriter shall be deemed
a successor or assign merely by reason of such purchase.
12. Representatives. In all dealings under any Terms Agreement and
hereunder, the Representatives shall act on behalf of each of the Underwriters,
and the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any underwriter made or given by the
Representatives.
13. Certain Defined Terms. For purposes of this Agreement, (a) except
where otherwise expressly provided, the term "affiliate" has the meaning set
forth in Rule 405 under the Securities Act; (b) the term "business day" means
any day other than a day on which banks are permitted or required to be closed
in New York City; and (c) the term "subsidiary" has the meaning set forth in
Rule 405 under the Securities Act.
14. Time of Essence. Time shall be of the essence of each Terms
Agreement.
15. GOVERNING LAW. THIS AGREEMENT AND EACH TERMS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. Counterparts. This Agreement and each Terms Agreement may be
executed by any one or more of the parties hereto and thereto in any number of
counterparts (which may include counterparts delivered by any standard form of
telecommunication), each of which shall be deemed to be an original, but all
such respective counterparts shall together constitute one and the same
instrument.
17. Amendments or Waivers. No amendment or waiver of any provision of
this Agreement or each Terms Agreement, nor any consent or approval to any
departure therefrom, shall in any event be effective unless the same shall be in
writing and signed by the parties hereto.
18. Headings. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement or each Terms Agreement.
If the foregoing is in accordance with your understanding, please sign
and return five counterparts hereof.
Very truly yours,
NEWMONT MINING CORPORATION
By: /s/Bruce D. Hansen
----------------------------------------
Name: Bruce D. Hansen
Title: Senior Vice President and
Chief Financial Officer
Accepted as of the date hereof:
J.P. MORGAN SECURITIES INC.
UBS SECURITIES LLC
Acting on behalf of themselves and as the
Representatives of the several Underwriters
By J.P. MORGAN SECURITIES INC.
By: /s/Kevin Willsey
----------------------------------
Authorized Signatory
By UBS SECURITIES LLC
By: /s/Robert Pilkington
----------------------------------
Authorized Signatory
By: /s/Dieter Hoeppli
----------------------------------
Authorized Signatory
SCHEDULE 2(g)
1. Shares of Newmont Indonesia Limited owned by Newmont USA Limited are
pledged to the Batu Hijau Senior Lenders, pursuant to the Batu Hijau
project financing described in Newmont's Form 10-K.
2. Newmont Indonesia Limted's 56.25 percent interest in the Nusa Tenggara
Partnership is pledged to the Batu Hijau Senior Lenders, pursuant to the
Batu Hijau project financing described in Newmont's Form 10-K. Any transfer
of Newmont Indonesia Limited's interest in the Nusa Tengarra Partnership is
subject to a right-of-first-offer held by Nusa Tenggara Mining Corporation,
a subsidiary of Sumitomo Corporation, and is also subject to a Transfer
Restrictions and Sponsor Support Agreement between Newmont USA Limited and
the Batu Hijau Senior Lenders.
3. Shares of P.T. Newmont Nusa Tenggara owned by Newmont Indonesia Limited (in
trust for the Nusa Tenggara Partnership) are pledged to the Batu Hijau
Senior Lenders, pursuant to the Batu Hijau project financing described in
Newmont's Form 10-K.
4. Any transfer of Newmont Second Capital Corporation's 51.35 percent interest
in Minera Yanacocha S.R.L. is subject to rights-of-first-refusal held by a
subsidiary of Compania de Minas Buenaventura S.A.A., and by the
International Finance Corporation.
ANNEX I
NEWMONT MINING CORPORATION
Equity Securities
Terms Agreement
---------------
November 5, 2003
J.P. Morgan Securities Inc.
UBS Securities LLC
As Representatives of the
several Underwriters listed
in Schedule I hereto
c/o J.P. Morgan Securities Inc.
277 Park Avenue
New York, NY 10172
Ladies and Gentlemen:
Newmont Mining Corporation, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated November 5, 2003 (the "Underwriting Agreement"),
between the Company on the one hand and J.P. Morgan Securities Inc. and UBS
Securities LLC (the "Representatives"), on the other hand, to issue and sell to
the Underwriters named in Schedule I hereto (the "Underwriters") the securities
specified in Schedule II hereto (the "Securities"). Each of the provisions of
the Underwriting Agreement is incorporated herein by reference in its entirety,
and shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations
and warranties set forth therein shall be deemed to have been made at and as of
the date of this Terms Agreement, except that, if this Terms Agreement and the
Underwriting Agreement are dated different dates, each representation and
warranty with respect to the Prospectus in Section 2 of the Underwriting
Agreement shall be deemed to be a representation and warranty as of the date of
the Underwriting Agreement in relation to the Prospectus (as therein defined)
and also a representation and warranty as of the date of this Terms Agreement in
relation to the Prospectus as amended or supplemented relating to the Securities
which are the subject of the Terms Agreement. Each reference to the
Representatives herein and in the provisions of the Underwriting Agreement so
incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined. The Representatives are designated to act on behalf of each of
the Underwriters of Securities.
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
Page 2
Schedule II hereto, the amount of Firm Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement, the Company hereby grants an option to the Underwriters,
severally and not jointly, to purchase in the aggregate up to the number of
Option Securities set forth on Schedule II at the same purchase price as shall
be applicable to the Firm Securities. The option hereby granted will expire 30
days after the date hereof and may be exercised, in whole or in part at one
time, only for the purpose of covering over-allotments that may be made in
connection with the offering and distribution of the Firm Securities. Such
option may be exercised upon written notice by you to the Company setting forth
the number of Option Securities as to which the several Underwriters are
exercising the option and the Option Closing Date. If the option is exercised as
to all or any portion of the Option Securities, the Option Securities as to
which the option is exercised shall be purchased by each Underwriter, severally
and not jointly, in the proportion that the number of Firm Securities set forth
opposite the name of such Underwriter in Schedule I bears to the total number of
Firm Securities, subject to such adjustments as you, in your discretion, shall
make to eliminate any sales or purchases of fractional Offered Securities. No
Option Securities shall be sold or delivered unless the Firm Securities
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Option Securities or any portion thereof may be surrendered and
terminated at any time before the exercise thereof upon written notice by the
Representatives to the Company.
Page 3
If the foregoing is in accordance with your understanding, please sign
and return to us three 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.
Very truly yours,
NEWMONT MINING CORPORATION
By /s/Bruce D. Hansen
------------------------------------
Name: Bruce D. Hansen
Title: Senior Vice President and
Chief Financial Officer
Accepted as of the date hereof:
J.P. MORGAN SECURITIES INC.
UBS SECURITIES LLC
Acting on behalf of themselves and as the
Representatives of the several Underwriters
By J.P. MORGAN SECURITIES INC.
By: /s/Kevin Willsey
----------------------------------
Authorized Signatory
By UBS SECURITIES LLC
By: /s/Robert Pilkington
----------------------------------
Authorized Signatory
By: /s/Dieter Hoeppli
----------------------------------
Authorized Signatory
SCHEDULE I
Number of
Underwriter Firm Securities
----------- ---------------
J.P. Morgan Securities Inc. . . . . . . . . . . . . . . 6,000,000
UBS Securities LLC . . . . . . . . . . . . . . . . . . 6,000,000
Bear, Stearns & Co. Inc. . . . . . . . . . . . . . . . 1,680,000
CIBC World Markets Corp. . . . . . . . . . . . . . . . 1,680,000
Citigroup Global Markets Inc. . . . . . . . . . . . . . 1,680,000
HSBC Securities (USA) Inc. . . . . . . . . . . . . . . 1,680,000
NBF Securities (USA) Corp. . . . . . . . . . . . . . . 1,680,000
RBC Dain Rauscher Inc. . . . . . . . . . . . . . . . . 1,680,000
Scotia Capital (USA) Inc. . . . . . . . . . . . . . . . 1,200,000
Griffiths McBurney & Partners Corp.. . . . . . . . . . 720,000
Total . . . . . . . . . . . . . . . . . . . . . . . . . 24,000,000
Title of Securities:
Common Stock, par value $1.60 per share (each a "Common
Share").
Aggregate number of Firm Securities:
24,000,000 Common Shares
Aggregate number of Option Securities:
2,000,000 Common Shares
Price to Public:
$42.40 per Common Share
Purchase Price by Underwriters:
$41.128 per Common Share
Specified funds for payment of purchase price:
New York Clearing House funds
Firm Closing Date:
9:00 a.m. EST on Wednesday November 12, 2003
Closing Location:
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
Black Out Period:
The Company
-----------
For a period of 45 days after the date of the Prospectus Supplement,
the Company will not (i) offer, pledge, announce the intention to sell, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of, directly or indirectly, any Common Shares or any
securities convertible into or exercisable or exchangeable for Common Shares, or
(ii) enter into any swap or other agreement that transfers, in whole or in part,
any of the economic consequences of ownership of Common Shares, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Shares or such other securities, in cash or otherwise, without the
prior written consent of the Representative, other than (a) the Common
Shares to be sold hereunder, (b) any securities issued under existing employee
stock option or stock benefit plans, (c) any Common Shares issued upon the
exercise of options granted under existing employee stock option or stock
benefit plans, (d) any Common Shares issued upon the exercise of warrants
outstanding on the date hereof, (e) any Common Shares issued upon the exchange
of exchangeable shares outstanding on the date hereof, and (f) any Common Shares
issued pursuant to proposed acquisition and other transactions described in the
Company's Form 10-Q for the quarter ended September 30, 2003.
Executive officers and directors:
--------------------------------
Substantially in the form set forth in the lock-up agreement attached
hereto as Exhibit A.
Blood letter:
Substantially in the form set forth in the "blood letter" attached
hereto as Exhibit B.
Address for Notices to the Underwriters:
Notices to the Underwriters shall be given to each of the
Representatives at the following respective addresses:
J.P. Morgan Securities Inc., 277 Park Avenue, New York, New York 10172
(fax: (212) 622-8358); Attention: Henry K. Wilson.
UBS Securities LLC, 299 Park Avenue, New York, NY 10171 (fax: (212)
821-4998); Attention: Syndicate Desk.