EXHIBIT 1.2
NEWMONT MINING CORPORATION, Issuer
NEWMONT GOLD COMPANY, Guarantor
Debt Securities
Underwriting Agreement
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_____________, ____
Dear Sirs:
1. Introductory. Newmont Mining Corporation, a Delaware corporation
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(the "Company"), proposes to issue and sell from time to time certain of its
debt securities registered under the registration statement referred to in
Section 2(a) ("Registered Securities"). Payment of principal of, and interest,
if any, and premium, if any, on the Debt Securities will be unconditionally
guaranteed by Newmont Gold Company, a Delaware corporation, as Guarantor (the
"Guarantor"), pursuant to the terms and conditions of the guaranty issued under
the Indenture (as defined below) (the "Guaranty"). The Registered Securities
may be convertible into common shares of the Company, par value $1.60 per share
("Common Shares"). The Registered Securities will be issued under an indenture,
dated as of __________, ____ (the "Indenture"), among the Company, the Guarantor
and Citibank, N.A., as Trustee, in one or more series, which series may vary as
to interest rates, maturities, redemption provisions, selling prices and, in the
case of Registered Securities that are convertible at the option of holders into
Common Shares ("Convertible Registered Securities"), conversion prices and the
terms and conditions relating to such conversion rights and other terms, with
all such terms for any particular series of the Registered Securities being
determined at the time of sale. The issuance and sale of Registered Securities
and the Guaranty have been registered under the registration statement referred
to in Section 2(a). Particular series of the Registered Securities will be sold
pursuant to a Terms Agreement referred to in Section 3 in the form of Annex I
attached hereto, for resale in accordance with terms of offering determined at
the time of sale. The Registered Securities and related Guaranty are hereunder
referred to as the "Securities". The firm or firms which agree to purchase the
Securities are hereinafter referred to as the "Underwriters" of such Securities,
and the representative or representatives of the Underwriters, if any, specified
in a Terms Agreement referred to in Section 3 are hereinafter referred to as the
"Representatives"; provided, however, that if the Terms Agreement does not
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specify any representative of the Underwriters, the term "Representatives", as
used in this Agreement (other than in Section 5(c) and the second sentence of
Section 3) shall mean the Underwriters.
2. Representations and Warranties of the Company and the Guarantor.
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The Company and the Guarantor, jointly and severally, represent and warrant to,
and agree with, each Underwriter that:
(a) A registration statement (No. 333-____), including a prospectus
relating to the Securities, has been filed with the Securities and Exchange
Commission (the "Commission") and has become effective. Such registration
statement, as amended at the
time of any Terms Agreement referred to in Section 3, is hereinafter
referred to as the "Registration Statement", and the prospectus included in
such Registration Statement, as supplemented as contemplated by Section 3
to reflect the terms of the Securities and the terms of offering thereof,
as first filed with the Commission pursuant to and in accordance with Rule
424(b) ("Rule 424(b)") of the Rules and Regulations of the Commission (the
"Rules and Regulations") under the Securities Act of 1933, as amended (the
"Act"), including all material incorporated by reference therein, is
hereinafter referred to as the "Prospectus".
(b) On the effective date of the registration statement relating to
the Securities, such registration statement conformed in all material
respects to the requirements of the Act, the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), and the Rules and Regulations and
did not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, and on the date of the Terms Agreement
referred to in Section 3, the Registration Statement and the Prospectus
will conform in all material respects to the requirements of the Act, the
Trust Indenture Act and the Rules and Regulations, and neither of such
documents will include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading, except that the
foregoing representations do not apply to statements in or omissions from
any of such documents based upon written information furnished to the
Company by any Underwriter specifically for use therein.
(c) Each document filed by the Company pursuant to the Exchange Act
which is incorporated by reference in the Prospectus complied when so filed
in all material respects with the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the rules and regulations thereunder, and
each document, if any, hereafter filed and so incorporated by reference in
the Prospectus (other than documents incorporated by reference therein
relating solely to securities other than the Securities) will comply when
so filed in all material respects with the Exchange Act and the rules and
regulations thereunder.
3. Purchase and Offering of Securities. The obligation of the
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Company to issue and sell any Registered Securities, the obligation of the
Guarantor to guarantee such Registered Securities and the obligation of the
Underwriters to purchase the Securities will be set forth in a Terms Agreement
(the "Terms Agreement") which shall be in the form of an executed writing (which
may be handwritten), and may be evidenced by an exchange of telegraphic,
facsimile or any other rapid transmission device designed to produce a written
record of communications transmitted at the time the Company determines to sell
the Securities. The Terms Agreement will incorporate by reference the
provisions of this Agreement, except as otherwise provided therein, and will
specify the firm or firms which will be Underwriters, the names of any
Representatives, the aggregate principal amount of the Registered Securities,
the principal amount of Registered Securities to be purchased by each
Underwriter, the initial public offering price of the Registered Securities, the
purchase price to be paid by the Underwriters and the terms of the Registered
Securities not already specified in the Indenture, including, but not limited
to, dates of payment
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and rate of interest, if any, maturity, any redemption or repayment provisions
and any sinking fund requirements and whether any of the Securities may be sold
to institutional investors pursuant to Delayed Delivery Contracts (as defined
below). The Terms Agreement will also specify the time and date of delivery and
payment (such time and date, or such other time not later than seven full
business days thereafter as the Representatives, the Company and the Guarantor
agree as the time for payment and delivery, being herein and in the Terms
Agreement referred to as the "Closing Date"), the place of delivery and payment
and any details of the terms of offering that should be reflected in the
prospectus supplement relating to the offering of the Securities. The
obligations of the Underwriters to purchase the Securities will be several and
not joint. It is understood that the Underwriters propose to offer the
Securities for sale as set forth in the Prospectus. The Securities delivered to
the Underwriters on the Closing Date will be in definitive fully registered
form, in such denominations and registered in such names as the Underwriters may
request.
If the Terms Agreement provides for sales of Securities pursuant to
delayed delivery contracts, the Company and the Guarantor authorize the
Underwriters to solicit offers to purchase Securities pursuant to delayed
delivery contracts substantially in the form of Annex II attached hereto
("Delayed Delivery Contracts") with such changes therein as the Company and the
Guarantor may authorize or approve. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. On the Closing Date, the Company or the Guarantor will pay, as
compensation, to the Representatives for the accounts of the Underwriters, the
fee set forth in such Terms Agreement in respect of the principal amount of
Securities to be sold pursuant to Delayed Delivery Contracts ("Contract
Securities"). The Underwriters will not have any responsibility in respect of
the validity or the performance of Delayed Delivery Contracts. If the Company
and the Guarantor executes and delivers Delayed Delivery Contracts, the Contract
Securities will be deducted from the Securities to be purchased by the several
Underwriters and the aggregate principal amount of Securities to be purchased by
each Underwriter will be reduced pro rata in proportion to the principal amount
of Securities set forth opposite each Underwriter's name in such Terms
Agreement, except to the extent that the Representatives determine that such
reduction shall be otherwise than pro rata and shall so advise the Company. The
Company will advise the Representatives not later than 5:00 p.m., New York time,
on the business day prior to the Closing Date of the principal amount of
Contract Securities.
4. Certain Agreements of the Company and the Guarantor. Each of the
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Company and the Guarantor, jointly and severally, agrees with the several
Underwriters that it will furnish to _____________________, counsel for the
Underwriters ("Underwriter's Counsel"), one signed copy of the registration
statement relating to the Securities, including all exhibits, in the form it
became effective and of all amendments thereto and that, in connection with each
offering of Securities:
(a) The Company and the Guarantor will file the Prospectus with the
Commission pursuant to and in accordance with Rule 424(b).
(b) During the time when a prospectus relating to the Securities is
required to be delivered under the Act, (i) the Company or the Guarantor
will advise the Representatives promptly of any proposal to amend or
supplement the Registration
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Statement or the Prospectus and will afford the Representatives a
reasonable opportunity to comment on any such proposed amendment or
supplement and (ii) the Company will also advise the Representatives
promptly of the filing of any such amendment or supplement and of the
institution by the Commission of any stop order proceedings in respect of
the Registration Statement or of any part thereof and will use its best
efforts to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary at any
time to amend the Prospectus to comply with the Act, the Company and the
Guarantor promptly will prepare and file with the Commission an amendment
or supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither the Representatives' consent
to, nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section 5.
(d) The Company will make generally available to its security holders
as soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of
the Act and the Rules and Regulations (including, at the option of the
Company, Rule 158 under the Act).
(e) The Company and the Guarantor will furnish to the Representatives
copies of the Registration Statement, including all exhibits, any related
prospectus, any related preliminary prospectus supplement and the
Prospectus and, during the time when a prospectus relating to the
Registered Securities is required to be delivered under the Act, all
amendments and supplements to such documents (other than those solely
relating to securities other than the Securities), in each case as soon as
available and in such quantities as are reasonably requested.
(f) The Company and the Guarantor will arrange for the qualification
of the Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as the Representatives
designate and will continue such qualifications in effect so long as
required for the distribution; provided, however, that in no event shall
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either the Company or the Guarantor be required to qualify as a foreign
corporation or as a dealer in securities or to file a general or unlimited
consent for service of process in any such jurisdiction.
(g) The Company and the Guarantor will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's and
the Guarantor's counsel and accountants in connection with the registration
of the Securities under the Act
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and all other expenses in connection with the preparation, printing and
filing of the Registration Statement, any preliminary prospectus supplement
and the Prospectus and amendments and supplements thereto and the mailing
and delivering of copies thereof to the Underwriters and dealers; (ii) the
cost of printing any Agreement among Underwriters, this Agreement, any
Terms Agreement, any Indenture, any Delayed Delivery Contracts, any Blue
Sky and Legal Investment Memoranda and any other documents in connection
with the offering, purchase, sale and delivery of the Securities; (iii) all
expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 4(f),
including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with
the Blue Sky and legal investment surveys; (iv) any fees charged by
securities rating services for rating the Securities; (v) any filing fees
incident to any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities; (vi) the cost of
preparing the Securities; (vii) the fees and expenses of any Trustee and
any agent of any Trustee and the fees and disbursements of counsel for any
Trustee in connection with any Indenture and the Securities; and (viii) all
other costs and expenses incident to the performance of its obligations
hereunder and under any Delayed Delivery Contracts which are not otherwise
specifically provided for in this Section; provided, however, that, except
as provided in this Section, Section 6 and Section 8 hereof, the
Underwriters will pay all of their own costs and expenses, including the
fees of their counsel, transfer taxes on resale of any of the Securities by
them, and any advertising expenses connected with any offers they may make.
(h) For a period beginning at the time of execution of the Terms
Agreement and ending the earlier of (i) the termination of trading
restrictions for the Securities, as notified to the Company and the
Guarantor by the Representatives, and (ii) the Closing Date, without the
prior consent of the Representatives, the Company and the Guarantor will
not offer, sell, contract to sell or otherwise dispose of any securities
substantially similar to the Securities.
5. Conditions of the Obligations of the Underwriters. The
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obligations of the several Underwriters to purchase and pay for the Securities
will be subject to the accuracy of the representations and warranties on the
part of the Company and the Guarantor herein, to the accuracy of the written
statements of the officers of the Company and the Guarantor made pursuant to the
provisions hereof, to the performance by each of the Company and the Guarantor
of its obligations hereunder and to the following additional conditions
precedent:
(a) The Representatives shall have received a letter, dated the
Closing Date, of Xxxxxx Xxxxxxxx & Co., confirming that they are
independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating in effect
that:
(i) in their opinion, the financial statements and schedules
audited by them and included in the Prospectus comply in form in all
material respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
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(ii) they have read the unaudited financial statements included
in the Prospectus;
(iii) on the basis of the reading referred to in (ii) above, a
reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified procedures,
nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements, if any, included
or incorporated by reference in the Prospectus do not comply in
form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations and the Exchange Act and the related published rules
and regulations thereunder, as applicable, or are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal
year; or
(B) the unaudited capsule information, if any, included
in the Prospectus does not agree with the amounts set forth in
the unaudited consolidated financial statements from which it was
derived or was not determined on a basis substantially consistent
with that of the audited financial statements included or
incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year; or
(C) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified date not
more than five days prior to the Closing Date, there was any
material change in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and director
stock grants) or any material increase in consolidated long-term
debt of the Company and its subsidiaries or, at the date of the
latest available balance sheet read by such accountants, there
was any material decrease in consolidated net current assets or
net assets, as compared with amounts shown on the latest balance
sheet included or incorporated by reference in the Prospectus; or
(D) for the period from the date of the latest income
statement included or incorporated by reference in the Prospectus
to the closing date of the latest available income statement read
by such accountants there were any decreases, as compared with
the corresponding period of the previous year and with the period
of corresponding length ended the date of the latest income
statement included in the Prospectus, in consolidated sales, net
income or in the ratio of earnings to fixed charges;
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except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(iv) they have carried out specified procedures, as requested
by the Underwriters, for the purpose of comparing specified dollar
amounts (or percentages derived from such dollar amounts) and other
financial information included in the Prospectus (in each case to the
extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the
Company and its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such records
by analysis or computation) with the results obtained from inquiries,
a reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus
for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a). No stop order
suspending the effectiveness of the Registration Statement or of any part
thereof shall have been issued and no proceedings for that purpose shall
have been instituted or, to the knowledge of the Company, the Guarantor or
any Underwriter, shall be threatened by the Commission.
(c) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any downgrading in the rating of any senior debt
securities of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or
any public announcement that any such organization has under surveillance
or review its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (ii) any suspension
or limitation of trading in securities generally on the New York Stock
Exchange, Inc., or any setting of minimum prices for trading on such
exchange; (iii) any general banking moratorium declared by Federal or New
York authorities; or (iv) any outbreak or material escalation of major
hostilities in which the United States is involved, any declaration of war
by Congress or any other substantial national or international calamity or
emergency if, in the reasonable judgment of a majority in interest of the
Underwriters, including any Representatives, the effect of any such
outbreak, escalation, declaration, calamity or emergency is so material and
adverse so as to make it impractical or inadvisable to proceed with
completion of the sale of and payment for the Securities.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of White & Case LLP, counsel for the Company and the
Guarantor, to the effect that:
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(i) Each of the Company and the Guarantor has been duly
incorporated and is an existing corporation in good standing under the
laws of the State of Delaware, with corporate power and authority to
own its properties and conduct its business as described in the
Prospectus;
(ii) The Indenture has been duly authorized, executed and
delivered by each of the Company and the Guarantor and has been duly
qualified under the Trust Indenture Act; the Securities have been duly
authorized; the Securities other than any Contract Securities have
been duly executed, issued and delivered; the Indenture and the
Securities other than any Contract Securities constitute, and any
Contract Securities, when executed, authenticated, issued and
delivered in the manner provided in the Indenture and sold pursuant to
Delayed Delivery Contracts, will constitute, valid and legally binding
obligations of the Company and the Guarantor, as the case may be,
enforceable in accordance with their terms, except as the
enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, fraudulent transfer or other similar laws
affecting the enforcement of creditors' rights generally, or by
general equitable principles (regardless of whether the issue of
enforceability is considered in a proceeding in equity or at law),
provided, however, that such counsel need express no opinion with
respect to U.S. federal and state laws dealing with fraudulent
conveyances; and the Securities other than any Contract Securities
conform, and any Contract Securities, when issued and delivered in the
manner provided for in the Indenture and sold pursuant to Delayed
Delivery Contracts, will conform, in all material respects to the
description thereof contained in the Prospectus;
(iii) No consent, approval, authorization or order of, or filing
with, any New York State or Federal governmental agency or body or any
New York State or Federal court having jurisdiction over either the
Company or the Guarantor or any of their material properties is
required to be obtained or made by either the Company or the Guarantor
for the consummation of the transactions contemplated by the Terms
Agreement (including the provisions of this Agreement) in connection
with the issuance or sale of the Securities by the Company and the
Guarantor, except such as have been obtained and made under the Act
and the Trust Indenture Act and such as may be required under state
securities or Blue Sky laws (as to which such counsel need express no
opinion);
(iv) The execution, delivery and performance of the Indenture,
the Terms Agreement (including the provisions of this Agreement) and
any Delayed Delivery Contracts and the issuance and sale of the
Securities and compliance with the terms and provisions thereof will
not result in a breach or violation of any of the terms and provisions
of, or constitute a default under, the Restated Certificate of
Incorporation or By-Laws of either the Company or the Guarantor or any
statute, rule, regulation or order applicable to the Company, the
Guarantor or any of their subsidiaries of which such counsel is aware
of any federal or New York State governmental agency or body or court
having jurisdiction over the Company, the Guarantor or any of their
material properties (other than those that may be
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required under the Act and under applicable state securities or Blue
Sky laws as to which such counsel need express no opinion) and each of
the Company and the Guarantor has full corporate power and authority
to authorize, issue and sell the Securities as contemplated by the
Terms Agreement (including the provisions of this Agreement);
(v) The registration statement relating to the Securities, as
of its effective date, the Registration Statement and the Prospectus,
as of the date of the Terms Agreement, and any amendment or supplement
thereto, as of its date, appeared on their face to comply as to form
in all material respects with the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations thereunder; nothing has
come to such counsel's attention which causes it to believe that such
registration statement, as of its effective date, the Registration
Statement or the Prospectus, as of the date of the Terms Agreement, or
any such amendment or supplement, as of its date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading; it being understood that
such counsel need express no opinion as to the financial statements
and schedules or other financial or statistical data contained in any
of the above-mentioned documents; and
(vi) The Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by each of the Company and the
Guarantor.
(e) The Representatives shall have received an opinion, dated the
Closing Date, from Xxx X. Xxxxxx, Vice President and General Counsel of the
Company and the Guarantor, to the effect that:
(i) Each of the Company and the Guarantor 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 their respective businesses require such qualification
(except where the failure to so qualify would not have a material
adverse effect upon the Company or the Guarantor and their
subsidiaries taken as a whole), and has all power and authority
necessary to own its properties and conduct the businesses in which it
is engaged as described in the Prospectus;
(ii) The execution, delivery and performance of the Indenture,
the Terms Agreement (including the provisions of this Agreement) and
any Delayed Delivery Contracts and the issuance and sale of the
Securities and compliance with the terms and provisions thereof will
not result in a breach or violation of any of the terms and provisions
of, or constitute a default under any order, rule or regulation
applicable to the Company, the Guarantor or any of their subsidiaries
of which such counsel is aware of any court or governmental agency or
body having
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jurisdiction over the Company, the Guarantor or any of their material
properties or, any material agreement or instrument to which the
Company, the Guarantor or any of their material subsidiaries is a
party or by which the Company, the Guarantor or any such subsidiary is
bound or to which any of the properties of the Company, the Guarantor
or any such subsidiary is subject, or the Restated Certificate of
Incorporation or By-Laws of the Company, the Guarantor or any such
subsidiary;
(iii) Such counsel is not aware of any consent, approval,
authorization or order of, or filing with, any governmental agency or
body or any court having jurisdiction over the Company, the Guarantor
or any of their material properties that is required to be obtained or
made by the Company or the Guarantor for the consummation of the
transactions contemplated by the Terms Agreement (including the
provisions of this Agreement) in connection with the issuance or sale
of the Securities by the Company and the Guarantor, except such as may
be required under the Act, the Trust Indenture Act and under state
securities or Blue Sky laws (as to which such counsel need express no
opinion);
(iv) The documents incorporated by reference in the Prospectus
(other than the financial statements and related schedules and other
financial and statistical data contained therein, as to which such
counsel needs express no opinion), when they were filed with the
Commission complied as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder; and nothing has come to such counsel's
attention which causes it to believe that any of such documents, when
such documents were so filed contained an untrue statement of a
material fact and omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made when such documents were so filed, not
misleading;
(v) Nothing has come to such counsel's attention which causes
it to believe that the registration statement relating to the
Registered Securities, as of its effective date, the Registration
Statement or the Prospectus, as of the date of the Terms Agreement, or
any such amendment or supplement, as of its date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading; it being understood that
such counsel need express no opinion as to the financial statements
and schedules or other financial or statistical data contained in any
of the above-mentioned documents; and
(vi) The statements contained in the Company's Annual Reports
on Form 10-K under the heading "Item 3. Legal Proceedings", and the
statements contained in the Company's Quarterly Reports on Form 10-Q
under the heading "Item 1. Legal Proceedings", in each case, which are
incorporated or deemed to be incorporated by reference in the
Prospectus, insofar as such statements constitute a
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summary of the legal documents, matters or proceedings referred to
therein, fairly present the information called for with respect to
such legal documents, matters and proceedings.
(f) The Representatives shall have received from Underwriter's
Counsel, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Company and the
Guarantor, the validity of the Securities, the Registration Statement, the
Prospectus and other related matters as they may require, and the Company
and the Guarantor shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(g) The Representatives shall have received a certificate, dated
the Closing Date, of the Chairman of the Board of Directors, President and
Chief Executive Officer, the Executive Vice President, any Senior Vice
President or any Vice President and a principal financial or accounting
officer from each of the Company and the Guarantor in which such officers,
to their knowledge, shall state that the representations and warranties of
the Company and the Guarantor, as the case may be, in this Agreement are
true and correct at and as of the Closing Date, that the Company and the
Guarantor, as the case may be, has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date, that no stop order suspending the
effectiveness of the Registration Statement or of any part thereof has been
issued and no proceedings for that purpose have been instituted by the
Commission and that, subsequent to the date of the most recent financial
statements in the Prospectus, there has been no material adverse change in
the financial position or results of operation of the Company and its
subsidiaries taken as a whole except as set forth in or contemplated by the
Prospectus or as described in such certificate.
Each of the Company and the Guarantor will furnish the Representatives with such
conformed copies of such opinions, certificates, letters and documents as they
reasonably request.
6. Indemnification and Contribution. (a) Each of the Company and
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the Guarantor will jointly and severally indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that neither the Company nor the Guarantor will be
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liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written
-11-
information furnished to either the Company or the Guarantor by any Underwriter
specifically for use therein; and provided, further, that neither the Company
-------- -------
nor the Guarantor shall be liable to any Underwriter under the indemnity
agreement in this subsection (a) with respect to any preliminary prospectus or
preliminary prospectus supplement to the extent that any such loss, claim,
damage or liability of such Underwriter results from the fact that such
Underwriter sold designated securities to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
Prospectus as then amended or supplemented in any case where such delivery is
required by the Act if either the Company or the Guarantor has previously
furnished copies thereof to such Underwriter and the loss, claim, damage or
liability results from an untrue statement or omission of a material fact
contained in the preliminary prospectus which was corrected in the Prospectus
(as then amended, supplemented or modified).
(b) Each Underwriter will indemnify and hold harmless the Company and
the Guarantor against any losses, claims, damages or liabilities to which either
the Company or the Guarantor may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus or preliminary prospectus supplement, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company or the Guarantor by such Underwriter specifically for use therein, and
will reimburse any legal or other expenses reasonably incurred by the Company or
the Guarantor in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement.
-12-
(d) If the indemnification provided for in this Section is
unavailable (other than as a result of the provisos contained in subsection (a))
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in subsection (a) or (b)
above in such proportion as is appropriate to reflect the relative fault of the
Company and the Guarantor on the one hand and of the Underwriters on the other
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations, including relative benefit. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, the Guarantor or
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Company, the Guarantor and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or any other method of allocation which does not take
account of the equitable considerations referred to above in this subsection
(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of each of the Company and the Guarantor under
this Section shall be in addition to any liability which it may otherwise have
and shall extend, upon the same terms and conditions, to each person, if any,
who controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each director of the Company and the Guarantor, to
each officer of the Company and the Guarantor who has signed the Registration
Statement and to each person, if any, who controls the Company or the Guarantor
within the meaning of the Act.
7. Default of Underwriters. (a) If any Underwriter shall default in
-----------------------
its obligation to purchase the Securities which it has agreed to purchase under
the Terms Agreement relating to such Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Securities on the terms contained herein. If within thirty-six
hours after such default by any Underwriter the Representatives do not arrange
for the purchase of such Securities, then the Company shall be entitled to a
further period of thirty-six
-13-
hours within which to procure another party or other parties satisfactory to the
Representatives to purchase such Securities on such terms. In the event that,
within the respective prescribed period, the Representatives notify the Company
that they have so arranged for the purchase of such Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of such
Securities, the Representatives or the Company shall have the right to postpone
the Closing Date for such Securities for a period of not more than seven days,
in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and each of the Company and the Guarantor
agrees to file promptly any amendments or supplements to the Registration
Statement or the Prospectus which in the reasonable opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this section with like
effect as if such person had originally been a party to the Terms Agreement with
respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Registered Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Registered Securities which remains
unpurchased does not exceed one-tenth of the aggregate principal amount of the
Registered Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Registered
Securities which such Underwriter agreed to purchase under the Terms Agreement
relating to such Registered Securities and, in addition, to require each non-
defaulting Underwriter to purchase its pro rata share (based on the principal
amount of Registered Securities which such Underwriter agreed to purchase under
such Terms Agreement) of the Registered Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of
the Registered Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Registered Securities which remains unpurchased
exceeds one-tenth of the aggregate principal amount of the Registered
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Registered Securities of a defaulting Underwriter or
Underwriters, then the Terms Agreement relating to such Registered Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter, the Company or the Guarantor, except for the expenses to be borne
by the Company, the Guarantor and the Underwriters as provided in Section 4(g)
and the indemnity and contribution agreements in Section 6; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
8. Survival of Certain Representations and Obligations. The
---------------------------------------------------
respective indemnities, agreements, representations, warranties and other
statements of the Company, the Guarantor or their officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, the Company, the
Guarantor or any of their respective representatives, officers or directors or
any controlling person and will survive
-14-
delivery of and payment for the Securities. If the Terms Agreement is terminated
pursuant to Section 7 or if for any reason the purchase of the Securities by the
Underwriters under the Terms Agreement is not consummated, the Company and the
Guarantor shall remain responsible for the expenses to be paid or reimbursed by
it pursuant to Section 4(g) and the respective obligations of the Company, the
Guarantor and the Underwriters pursuant to Section 6 shall remain in effect. If
the purchase of the Securities by the Underwriters is not consummated for any
reason, other than solely because of the termination of this Agreement pursuant
to Section 7 or the occurrence of any event specified in clause (ii), (iii) or
(iv) of Section 5(c), the Company and the Guarantor will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Securities, but the Company and the Guarantor shall be under no further
liability to any Underwriter except as provided in Section 6.
9. Notices. All statements, requests, notices and agreements
-------
hereunder shall be in writing and if to the Underwriters shall be sufficient in
all respects, if delivered or sent by first class mail, telex, or facsimile
transmission (confirmed in writing by overnight courier sent on the day of such
facsimile transmission) to the address of the Representatives as set forth in
the Terms Agreement; and if to the Company or the Guarantor shall be sufficient
in all respects if delivered or sent by first class mail, telex, or facsimile
transmission (confirmed in writing by overnight courier sent on the day of such
facsimile transmission) to the address of the Company and the Guarantor set
forth in the Registration Statement, Attention: Secretary.
10. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the Company, the Guarantor and such Underwriters as are identified
in Terms Agreements and their respective successors and the officers and
directors and controlling persons referred to in Section 6, and no other person
will acquire or have any right or obligation hereunder or by virtue of this
Agreement. No purchaser of any of the Securities from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
11. Representatives. In all dealings under any Terms Agreement and
---------------
hereunder, the Representatives, if any, shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any underwriter made or
given by the Representatives.
12. Time of Essence. Time shall be of the essence of each Terms
---------------
Agreement. As used herein the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
13. GOVERNING LAW. THIS AGREEMENT AND EACH TERMS AGREEMENT SHALL BE
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
14. Counterparts. This Agreement and each Terms Agreement may be
------------
executed by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
-15-
If the foregoing is in accordance with your understanding, please sign
and return three counterparts hereof.
Very truly yours,
NEWMONT MINING CORPORATION
By: _____________________________
Name:
Title:
NEWMONT GOLD COMPANY
By: _____________________________
Name:
Title:
Accepted as of the date hereof:
[Names of Underwriters]
By: [Representatives]
By: ______________________
Name:
Title:
On behalf of each of the Underwriters
-16-
ANNEX I
-------
NEWMONT MINING CORPORATION, Issuer
NEWMONT GOLD COMPANY, Guarantor
Debt Securities
Terms Agreement
---------------
_________, ____
[Names and Addresses of
Representatives]
Dear Sirs:
Newmont Mining Corporation, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated _________ __, ____ (the "Underwriting Agreement"),
between the Company and Newmont Gold Company, a Delaware corporation (the
"Guarantor"), on the one hand and __________________, on the other hand, to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the securities specified in Schedule II hereto (the "Registered
Securities"). Payment of principal of, and interest, if any, and premium, if
any, on the Securities will be unconditionally guaranteed by the Guarantor
pursuant to the terms and conditions of the guaranty issued under the Indenture
(the "Guaranty"). The Registered Securities and related Guaranty are referred
to as the "Securities". Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Terms
Agreement, except that, if this Terms Agreement and the Underwriting Agreement
are dated different dates, each representation and warranty with respect to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation and warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined) and also a representation and
warranty as of the date of this Terms Agreement in relation to the Prospectus as
amended or supplemented relating to the Securities which are the subject of the
Terms Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall be
deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives
designated to act on behalf of each of the Underwriters of Securities are set
forth in Schedule II hereto.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the
Annex I
Page 2
Company, at the time and place and at a purchase price to the Underwriters set
forth in Schedule II hereto, the principal amount of Securities set forth
opposite the name of such Underwriter in Schedule I hereto, less the principal
amount of Securities covered by Delayed Delivery Contracts, if any, as may be
specified in such Schedule II. The Guarantor agrees, pursuant to the terms and
conditions set forth in the Indenture, to endorse the Guaranty on such
Securities.
If the foregoing is in accordance with your understanding, please
sign and return to us _______ counterparts hereof, and upon acceptance hereof by
you, on behalf of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters, the Company and the Guarantor. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is or will be
pursuant to the authority set forth in a form of Agreement among Underwriters,
the form of which shall be supplied to the Company and the Guarantor upon
request.
Very truly yours,
NEWMONT MINING CORPORATION
By: __________________________
Name:
Title:
NEWMONT GOLD COMPANY
By: __________________________
Name:
Title:
Accepted as of the date hereof:
By: _________________________
On behalf of each of the Underwriters
SCHEDULE I
Principal Amount of
Designated Securities
Underwriter to be Purchased
----------- ---------------------
------------
Total......................... $
============
SCHEDULE II
Title of Securities:
[ %] [Floating Rate] [Zero Coupon] Guaranteed [Notes]
[Debentures] due
Aggregate principal amount:
$____________
Price to Public:
_____% of the principal amount of the Securities, plus accrued
interest [, if any,] from _________ to __________ [and accrued
amortization, if any, from __________ to ____________]
Purchase Price by Underwriters:
_____% of the principal amount of the Securities, plus accrued
interest [,if any,] from _________ to __________ [and accrued
amortization, if any, from __________ to ____________]
Specified funds for payment of purchase price:
[New York] Clearing House funds
Indenture:
Indenture, dated as of __________, ____, [, as supplemented by
________,] between the Company and ___________________, as Trustee
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates]
Redemption Provisions:
[No provisions for redemption]
[The Securities may be redeemed, otherwise than through the sinking
fund, in whole or in part at the option of the Company, in the amount
of $ _____ or an integral multiple thereof, __________]
[on or after _________, _________ at the following redemption prices
(expressed in percentages of principal amount): If [redeemed on or
before _________, ___ %, and if] redeemed during the 12-month period
beginning ___________,
Schedule II
Page 2
Redemption
Year Price
---- -----
and thereafter at 100% of principal amount, together in each case with
accrued interest to the redemption date]
[on any interest payment date falling on or after ____________,
___________, at the election of the Company, at a redemption price
equal to the principal amount thereof, plus accrued interest to the
date of redemption].
[Other possible redemption provisions, such as mandatory redemption
upon occurrence of certain events or redemption for changes in tax
law].
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Securities are entitled to the benefit of a sinking fund to
retire $ _______ principal amount of Securities on ______ in each of
the years _____ through ____ at 100% of their principal amount plus
accrued interest] [, together with [cumulative] [non-cumulative]
redemptions at the option of the Company to retire an additional $
_________ principal amount of Securities in the years ____ through
____ at 100% of their principal amount plus accrued interest.]
[If Securities are extendable debt Securities, insert --
Extendable provisions:
Securities are repayable on ______, _____ [insert date and years], at
the option of the holder, at their principal amount with accrued
interest. Initial annual interest rate will be ___%, and thereafter
annual interest rate will be adjusted on ______, and _______ to a rate
not less than ___ % of the effective annual interest rate on U.S.
Treasury obligations with _________-year maturities as of the [insert
date 15 days prior to maturity date] prior to such [insert maturity
date].]
[If Securities are Floating Rate debt Securities, insert --
Floating rate provisions:
Initial annual interest rate will be __% through ____________ [and
thereafter will be adjusted [monthly] [on each _____, ________, and
___________] [to an annual rate of ______ % above the average rate for
______ -year [month] [securities] [certificates of deposit] issued by
_________ and ___________________ [insert names of banks].] [and the
annual interest rate [thereafter] [from ______________ through
____________] will be the interest yield equivalent of the weekly
average per annum market discount rate for _____-month Treasury bills
plus ___% of Interest Differential (the excess, if any, of (i)
Schedule II
Page 3
then current weekly average per annum secondary market yield for
______-month certificates of deposit over (ii) then current interest
yield equivalent of the weekly average per annum market discount rate
for ______-month Treasury bills); [from _________ and thereafter the
rate will be the then current interest yield equivalent plus ____ % of
Interest Differential].]
Closing Date:
[Time and date], ____
Closing Location:
Delayed Delivery:
[None] [Underwriters' commission shall be ___ % of the principal amount of
Securities for which Delayed Delivery Contracts have been entered into.
Such commission shall be payable to the order of
_______________________________________.]
Names and addresses of Representatives:
Address for Notices, etc.:
[Other Terms]/1/
_______________________
/1/ A description of particular tax, accounting or other unusual features of
the Securities should be set forth, or referenced to an attached and
accompanying description, if necessary to the issuer's understanding of the
transaction contemplated. Such a description might appropriately be in the
form in which such features will be described in the Prospectus for the
offering.
ANNEX II
--------
(Three copies of this Delayed Delivery Contract
----------------------------------------------
should be signed and returned to the address
--------------------------------------------
shown below so as to arrive not later than
------------------------------------------
9:00 A.M., New York time, on
----------------------------
__________ ____, ____*.)
DELAYED DELIVERY CONTRACT
-------------------------
[Insert date of initial
----------------------
public offering]
---------------
NEWMONT MINING CORPORATION
c/o [Name and Address of Representative]
Gentlemen:
The undersigned hereby agrees to purchase from Newmont Mining
Corporation, a Delaware corporation (the "Company"), and the Company agrees to
sell to the undersigned, [If one delayed closing, insert--as of the date hereof,
------------------------------
for delivery on ______________, ____ ("Delivery Date"),]
$__________
principal amount of the Company's [Insert title of securities] (the
--------------------------
"Securities"), guaranteed by Newmont Gold Company, a Delaware corporation (the
"Guarantor"), offered by the Company and Guarantor's Prospectus dated _____, ___
and a Prospectus Supplement dated _____, ___ relating thereto, receipt of copies
of which is hereby acknowledged, at ___% of the principal amount thereof plus
accrued interest, if any, and on the further terms and conditions set forth in
this Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
-----------------------------------------------------
________________
* Insert date which is third full business day prior to Closing Date under
------------------------------------------------------------------------
the Terms Agreement.
-------------------
Annex II
Page 2
[The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the principal amounts
set forth below:
Delivery Date Principal Amount
------------- ----------------
_________________ __________________
_________________ __________________
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase
for delivery on [the] [each] Delivery Date shall be made to the Company or its
order by certified or official bank check in [New York] Clearing House (next
day) funds at the office of ____________________ at ______.M. on [the] [such]
Delivery Date upon delivery to the undersigned of the Securities to be purchased
by the undersigned [for delivery on such Delivery Date] in definitive fully
registered form and in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Company not less than five full business days prior to [the] [such] Delivery
Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on [the] [each] Delivery Date shall
be subject only to the conditions that (1) investment in the Securities shall
not at [the] [such] Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total principal amount of
the Securities less the principal amount thereof covered by this and other
similar Contracts. The undersigned represents that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by [a copy] [copies] of the opinion[s] of counsel for
the Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's and the Guarantor's sole discretion and, without limiting the
foregoing, need not be on a first-come, first-served basis. If this Contract is
acceptable to the Company and the Guarantor, it is requested that the Company
and the Guarantor sign the form of acceptance below and mail or deliver one of
the counterparts hereof to the undersigned at its address set forth below. This
will become a
Annex II
Page 3
binding contract between the Company, the Guarantor and the undersigned when
such counterpart is so mailed or delivered.
Yours very truly,
___________________________________________
(Name of Purchaser)
By: _______________________________________
___________________________________________
(Title of Signatory)
___________________________________________
___________________________________________
(Address of Purchaser)
Accepted, as of the above date.
NEWMONT MINING CORPORATION
By: __________________________
[Insert Title]
NEWMONT GOLD COMPANY
By: __________________________
[Insert Title]
