Exhibit 1.1
NEWMONT MINING CORPORATION
Equity Securities
Underwriting Agreement
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Dear Sirs:
1. Introductory. Newmont Mining Corporation, a Delaware corporation
(the "Company"), proposes to issue and sell from time to time (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") 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".
The representative or representatives of the Underwriters, if any,
specified in a Terms Agreement referred to in Section 3 are hereinafter referred
to as the "Representatives"; provided, however, that if the Terms Agreement does
not specify any representative of the Underwriters, the term "Representatives",
as used in this Agreement (other than in Section 5(c) and the second sentence of
Section 3) shall mean the Underwriters.
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 August 31, 2000, between the Company and
ChaseMellon Shareholder 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").
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333-____), including a prospectus
relating to the Securities, has been filed with the Securities and Exchange
Commission (the "Commission") and has become effective. Such registration
statement, as amended at the time of any Terms Agreement referred to in
Section 3, is hereinafter referred to as the "Registration Statement", and
the prospectus included in such Registration Statement, as supplemented as
contemplated by Section 3 to reflect the terms of the 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)") 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 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 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 Offered Securities) will
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comply when so filed in all material respects with the Exchange Act and the
rules and regulations thereunder.
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 firm or firms which will be
Underwriters; the names of any 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. 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.
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4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to counsel for the Underwriters, 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 Offered Securities:
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b).
(b) During the time when a prospectus relating to the Offered
Securities is required to be delivered under the Act, (i) the Company will
advise the Representatives promptly of any proposal to amend or supplement
the Registration Statement or the Prospectus and will afford the
Representatives a reasonable opportunity to comment on any such proposed
amendment or supplement, and (ii) the Company will also advise the
Representatives promptly of the filing of any such amendment or supplement
and of the 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 and (iii) the Company
will advise the Representatives promptly of the receipt by the Company of
any notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threat of any
proceeding for such purpose.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act, the
Company promptly will prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither the Representatives' consent to,
nor the Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5.
(d) The Company will make generally available to its security holders
as soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of
the Act and the Rules and Regulations (including, at the option of the
Company, Rule 158 under the Act).
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related prospectus, any
related preliminary prospectus supplement and the Prospectus and during the
time when a prospectus relating to the Offered Securities is required to be
delivered under the Act, all amendments and supplements to such documents
(other than those solely relating to
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securities other than the Offered Securities), in each case as soon as
available and in such quantities as are reasonably requested.
(f) The Company will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of the Company's counsel and accountants
in connection with the registration of the Securities under the Act and all
other expenses in connection with the preparation, printing and filing of
the Registration Statement, any preliminary prospectus supplement and the
Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost
of printing any Agreement among Underwriters, this Agreement, any Terms
Agreement, any 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 survey1; (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; and (xi) 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 connected with any offers
they may make.
(g) 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.
(h) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as the
Representatives reasonably designate and will continue such qualifications
in effect so long as required for the distribution; provided, however, that
in no event shall the Company be required to qualify as a foreign
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1 Include language in italics if warrants are being sold; delete if shares of
Common Stock or Preferred Stock are being sold.
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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.2
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 representations and warranties on the part of the
Company herein, to the accuracy of the written statements of Company officers
made pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) The Representatives shall have received a "comfort letter", dated
the Closing Date, in form and substance satisfactory to the
Representatives.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the Registration
Statement or of any part thereof shall have been issued and no proceedings
for that purpose shall have been instituted or, to the knowledge of the
Company or any Underwriter, shall be threatened by the Commission.
(c) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any downgrading in the rating of any senior debt
securities of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or
any public announcement that any such organization has under surveillance
or review its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (ii) any suspension
or limitation in trading in securities generally on the New York Stock
Exchange or any setting of minimum prices for trading on such Exchange;
(iii) if the Offered Securities are Common Shares, Preferred Shares which
are convertible into Common Shares (or Depositary Shares evidencing such
Preferred Shares) or Warrants, any suspension in trading in the Common
Shares on the New York Stock Exchange imposed by the New York Stock
Exchange or the Commission; (iv) any general banking moratorium declared by
Federal or New York authorities; or (v) 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
Offered Securities.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of White & Case, counsel for the Company, to the effect (to
the extent applicable to the Offered Securities) that:
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2 Include paragraph (h) if warrants; delete if Common Stock or Preferred
Stock.
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(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus;
(ii) The 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 issued and, when
countersigned by the transfer agent therefor, and 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 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);
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(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
countersigned 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) 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 Act and such as may be required under
state securities or Blue Sky laws (as to which such counsel need
express no opinion);
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(xiv) 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 Act and under applicable state securities or
Blue Sky laws as to which such counsel need express no opinion) and
the Company has full corporate power and authority to authorize, issue
and sell the Offered Securities as contemplated by the Terms Agreement
(including the provisions of this Agreement);
(xv) 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 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
(xvi) The Terms Agreement (including the provisions of this
Agreement) has been duly authorized, executed and delivered by the
Company.
(e) The Representatives shall have received an opinion, dated the
Closing Date, from Xxxxx X. Xxxxx, Esq., Vice President and General Counsel
of the Company, to the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing in its state of incorporation 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 upon the Company and its subsidiaries taken as a
whole), and has all power and authority necessary to own its
properties and conduct the business in which it is engaged as
described in the Prospectus;
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(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 material 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;
(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) 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 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
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contained in the Company's Quarterly Reports on Form 10-Q under the
heading "Item 1. Legal Proceedings", in each case, which are
incorporated or deemed to be incorporated by reference in the
Prospectus, insofar as such statements constitute a summary of the
legal documents, matters or proceedings referred to therein, fairly
present the information called for with respect to such legal
documents, matters and proceedings.
(f) The Representatives shall have received from 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.
(g) The Representatives shall have received a certificate, dated the
Closing Date, of the Chairman of the Board of Directors, the President and
Chief Executive Officer, any Executive Vice President, any Senior Vice
President or any Vice President and a principal financial or accounting
officer of the Company in which such officers, to their knowledge, shall
state that the representations and warranties of the Company in this
Agreement are true and correct at and as of the Closing Date, that the
Company has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to the Closing
Date, that no stop order suspending the effectiveness of the Registration
Statement or of any part thereof has been issued and no proceedings for
that purpose have been instituted by the Commission and that, subsequent to
the date of the most recent financial statements in the Prospectus, there
has been no material adverse change in the financial position or results of
operation of the Company and its subsidiaries taken as a whole except as
set forth in or contemplated by the Prospectus or as described in such
certificate.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as they reasonably request.
6. Indemnification and Contribution. a) The Company will indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any
-11-
Underwriter specifically for use therein; and provided, further, that the
Company shall not be liable to any Underwriter under the indemnity agreement in
this subsection (a) with respect to any preliminary prospectus or preliminary
prospectus supplement to the extent that any such loss, claim, damage or
liability of such Underwriter results from the fact that such Underwriter sold
designated securities to a person to whom there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the Prospectus as then
amended or supplemented in any case where such delivery is required by the Act
if the Company has previously furnished copies thereof to such Underwriter and
the loss, claim, damage or liability results from an untrue statement or
omission of a material fact contained in the preliminary prospectus which was
corrected in the Prospectus (as then amended, supplemented or modified).
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement.
(d) If the indemnification provided for in this Section is unavailable
(other than as a result of the provisos contained in subsection (a)) or
insufficient to hold harmless an
-12-
indemnified party under subsection (a) or (b) above, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to in subsection (a) or (b) above in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and of
the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations, including relative benefit. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such untrue statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (d) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or any other method of allocation which does not take account of
the equitable 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 Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
7. Default of Underwriters. (a) If any Underwriter shall default in
its obligation to purchase the 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
-13-
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 in any other documents or arrangements, and the
Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the reasonable opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this section with like
effect as if such person had originally been a party to the Terms Agreement with
respect to such 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-tenth 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.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person and will survive delivery of and
payment for the 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
-14-
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 the occurrence of
any event specified in clause (ii), (iv) or (v) of Section 5(c), the Company
will reimburse the Underwriters for all out-of-pocket expenses (including fees
and disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities, but the Company shall be under no further
liability to any Underwriter except as provided in Section 6.
9. Notices. All statements, requests, notices and agreements hereunder
shall be in writing and if to the Underwriters shall be sufficient in all
respects, if delivered or sent by first class mail, telex, or facsimile
transmission (confirmed in writing by overnight courier sent on the day of such
facsimile transmission) to the address of the Representatives as set forth in
the Terms Agreement; and if to the Company shall be sufficient in all respects
if delivered or sent by first class mail, telex, or facsimile transmission
(confirmed in writing by overnight courier sent on the day of such facsimile
transmission) to the address of the Company set forth in the Registration
Statement, Attention: Secretary.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the Company and such Underwriters as are identified in Terms
Agreements and their respective successors and the officers and directors and
controlling persons referred to in Section 6, and no other person will acquire
or have any right or obligation hereunder or by virtue of this Agreement. No
purchaser of any of the Offered Securities from any Underwriter shall be deemed
a successor or assign by reason merely of such purchase.
11. Representatives. In all dealings under any Terms Agreement and
hereunder, the Representatives, if any, shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any underwriter made or
given by the Representatives.
12. Time of Essence. Time shall be of the essence of each Terms
Agreement. As used herein the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
13. GOVERNING LAW. THIS AGREEMENT AND EACH TERMS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
14. Counterparts. This Agreement and each Terms Agreement may be
executed by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
-15-
If the foregoing is in accordance with your understanding,
please sign and return three counterparts hereof.
Very truly yours,
NEWMONT MINING CORPORATION
By
--------------------------------
Name:
Title:
Accepted as of the date hereof:
[Names of Underwriters]
By: [Representatives]
By:
--------------------------------
Name:
Title:
On behalf of each of the Underwriters
-16-
ANNEX I
NEWMONT MINING CORPORATION
Equity Securities
Terms Agreement
--------- , ----
[Names and Addresses of
Representatives]
Dear Sirs:
Newmont Mining Corporation, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated _________ __, ____ (the "Underwriting Agreement"),
between the Company on the one hand and __________________, on the other hand,
to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the securities specified in Schedule II hereto (the
"Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Terms
Agreement, except that, if this Terms Agreement and the Underwriting Agreement
are dated different dates, each representation and warranty with respect to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation and warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined) and also a representation and
warranty as of the date of this Terms Agreement in relation to the Prospectus as
amended or supplemented relating to the Securities which are the subject of the
Terms Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall be
deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives
designated to act on behalf of each of the Underwriters of Securities are set
forth in Schedule II hereto.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at a purchase price to the Underwriters set forth in Schedule II hereto, the
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 Terms
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
Annex I
Page 2
expire __ 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.]
If the foregoing is in accordance with your understanding, please sign
and return to us _______ counterparts hereof, and upon acceptance hereof by you,
on behalf of the Underwriters, this letter and such acceptance hereof, including
the provisions of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the Underwriters and the
Company. [It is understood that your acceptance of this letter on behalf of each
of the Underwriters is or will be pursuant to the authority set forth in a form
of Agreement among Underwriters, the form of which shall be supplied to the
Company upon request.]
Very truly yours,
NEWMONT MINING CORPORATION
By
--------------------------------
Name:
Title:
Accepted as of the date hereof:
By:
--------------------------------
On behalf of each of the Underwriters
SCHEDULE I
Amount of
Firm Securities
Underwriter to be Purchaser
-----------------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . .
=================
SCHEDULE II
Title of Securities:
Aggregate number of Firm Securities:
Aggregate number of Option Securities:
Price to Public:
$
-----------
Purchase Price by Underwriters:
$
-----------
Specified funds for payment of purchase price:
[New York] Clearing House funds
If the Securities are Preferred Shares or Depositary Shares evidencing fractions
of Preferred Shares, the terms of such Preferred Shares are as follows:
Designation:
Date of Certificate of Designations:
Dividend Rate or Amount:
[$___ per share per annum] [specify other method of calculation]
[Dividends are noncumulative.] [Dividends are cumulative from [specify
date].]
Dividend Payment Dates:
[months and dates], commencing [date]
Conversion Rights:
[The Securities are not convertible.]
[The Securities will be [subject to mandatory conversion] [convertible
[at the option of the holder thereof] [at the option of the Company]] into
shares of Common Stock of the Company [Describe conversion provisions, including
the conversion price and adjustments thereto.]]
Ranking:
[The Securities will rank senior with respect to the payment of
dividends and the distribution of assets upon liquidation to any
shares of the Company's Series A Junior Participating Preferred Stock
and any series of Preferred Stock which by its
Schedule II
Page 2
terms is expressly made junior to the Securities. The Securities will
rank on a parity with respect to the payment of dividends and the
distribution of assets upon liquidation with any other series of
Preferred Stock.]
[The Securities will rank on a parity with respect to the payment of
dividends and the distribution of assets upon liquidation to any shares of the
Company's Series A Junior Participating Preferred Stock and any series of
Preferred Stock which by its terms is expressly made junior to any other series
of Preferred Stock. The Securities will rank junior with respect to the payment
of dividends and the distribution of assets upon liquidation with any other
series of Preferred Stock.]
Liquidation Rights:
In the event of any voluntary or involuntary liquidation, dissolution
or winding up of the Company, the holders of the Securities will be entitled to
receive out of the assets of the Company available for distribution to
stockholders $______ per share in cash plus accrued and unpaid dividends before
any distribution is made to the holders of the Common Stock or any other stock
of the Company ranking junior to the Securities as to the distribution of assets
upon liquidation, dissolution or winding up of the affairs of the Company.
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 [on or after
_________, _________ at the following redemption prices: If [redeemed
on or before _________, $___, and if] redeemed during the 12-month
period beginning ___________,
Year Redemption Price
and thereafter at $___ per share, together in each case with accrued
and unpaid dividends to the redemption date]
[on any dividend payment date falling on or after ____________,
___________, at the election of the Company, at a redemption price
equal to the $___, plus accrued and unpaid dividends 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]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Securities are entitled to the benefit of a sinking fund to
retire _____ shares on ______ in each of the years _____ through ____
at $___ per share plus accrued and unpaid dividends] [, together with
[cumulative] [non-cumulative]
Schedule II
Page 3
redemptions at the option of the Company to retire an additional _____
shares in the years ____ through ____ at $___ per share plus accrued
and unpaid dividends.]
Voting Right Provisions:
[No voting rights except as specified in the Company's Restated
Certificate of Incorporation.]
[In addition to the voting rights specified in the Company's Restated
Certificate of Incorporation, the Securities [specify voting rights].]
If the Securities are Depositary Shares, specify the following:
Depositary:
Deposit Agreement:
Deposit Agreement dated as of ________, _____, between the Company and
the Depositary.
Terms of Deposit:
Each Depositary Share will represent ___ of [one] share of the
Preferred Shares described above. [Insert of other relevant terms.]
If the Securities are Warrants, the terms thereof are as follows:
Warrant Agent:
Warrant Agreement:
Warrant Agreement dated as of ___________, ____, between the Company
and the Warrant Agent.
Exercise Price:
$_____ per share, subject to adjustment as provided in the Warrant
Agreement.
Expiration Date:
Terms of Exercise:
[The Warrants may be exercised at any time [on or after ________] and
prior to the close of business on the Expiration Date.]
Firm Closing Date:
[Time and date], ____
Schedule II
Page 4
Closing Location:
Black Out Period:
[None]
[For a period beginning at the time of execution of the Terms
Agreement and ending 90 days thereafter, [the Company will not,
directly or indirectly, offer, sell, contract to sell or otherwise
dispose of Common Shares or securities representing, convertible into
or exchangeable for, or any rights to purchase or acquire, Common
Shares, other than (1) pursuant to its employee stock option and
restricted stock plans or its directors' stock plan, each as in effect
at the time of execution of the Terms Agreement, (2) pursuant
arrangements made with respect to any person who becomes an employee
of the Company, or (3) pursuant to the Junior Preferred Rights] [the
Company will not, directly or indirectly, offer, sell, contract to
sell or otherwise dispose of Preferred Shares, Depositary Shares or
securities representing, convertible into or exchangeable for, or any
rights to purchase or acquire, Preferred Shares or Depositary Shares,
other than pursuant to the Junior Preferred Rights.]]
[Insert terms, if other than as above]
Names and addresses of Representatives:
Address for Notices, etc.:
[Other Terms]3
----------
3 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.
