NEWMONT MINING
CORPORATION
5.125% Senior Notes due
2019
6.250% Senior Notes due
2039
Deutsche Bank
Securities Inc.
UBS Securities LLC
As Representatives of the
several
Underwriters listed
in Schedule 1 hereto
c/o Deutsche
Bank Securities Inc.
60 Wall Street
New York, New York 10005
c/o UBS
Securities LLC
677 Washington Blvd.
Stamford, Connecticut 06901
Newmont Mining Corporation, a Delaware
corporation (the “Company”), proposes to issue and sell
to the several Underwriters listed in Schedule 1 hereto (the
“Underwriters”), for whom you are acting as
representatives (the “Representatives”), $900,000,000
principal amount of its 5.125% Senior Notes due 2019 (the
“Ten Year Notes”) and $1,100,000,000 principal amount
of its 6.250% Senior Notes due 2039 (the “Thirty Year
Notes” and together with the Ten Year Notes, the
“Securities”). Payment of principal of, and interest,
if any, on, the Securities will be guaranteed by Newmont USA
Limited, a Delaware corporation, as guarantor (the
“Guarantor”), pursuant to the terms and conditions of
the guaranty issued under the Indenture (as defined below) (the
“Guaranty”). The Securities and the Guaranty will be
issued pursuant to an Indenture to be dated as of
September 18, 2009, among the Company, the Guarantor and The
Bank of New York Mellon Trust Company, N.A., as trustee (the
“Trustee”), as supplemented by the first supplemental
indenture thereto (the indenture, as so supplemented, the
“Indenture”), to be dated as of September 18,
2009, among the Company, the Guarantor and the Trustee.
Each of the Company and the Guarantor, jointly
and severally, hereby confirms its agreement with the several
Underwriters concerning the purchase and sale of the Securities, as
follows:
1. Registration Statement . The
Company has prepared and filed with the Securities and Exchange
Commission (the “Commission”) under the Securities Act
of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the “Securities
Act”), a registration statement on Form S-3ASR (File
No. 333-161915), including a prospectus, relating to the
Securities. Such registration statement, as amended at the time it
became effective, including the information, if any, deemed
pursuant to Rule 430A, 430B or 430C under the Securities Act
to be part of the registration statement at the time of its
effectiveness (“Rule 430 Information”), is
referred to herein as the “Registration Statement”; and
as used herein, the term “Preliminary Prospectus” means
each prospectus included in such registration statement (and any
amendments thereto) before effectiveness, any prospectus filed with
the Commission pursuant to Rule 424(a) under the Securities Act and
the prospectus included in the Registration Statement at the time
of its effectiveness that omits Rule 430 Information, and the
term “Prospectus” means the prospectus in the form
first used (or made available upon request of purchasers pursuant
to Rule 173 under the Securities Act) in connection with
confirmation of sales of the Securities. If the Company has filed
an abbreviated registration statement pursuant to Rule 462(b) under
the Securities Act (the “Rule 462 Registration
Statement”), then any reference herein to the term
“Registration Statement” shall be deemed to include
such Rule 462 Registration Statement. Any reference in this
Agreement to the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act, as of the
effective date of the Registration Statement or the date of such
Preliminary Prospectus or the Prospectus, as the case may be, and
any reference to “amend”, “amendment” or
“supplement” with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after such date
under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively,
the “Exchange Act”) that are deemed to be incorporated
by reference therein. Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Registration
Statement and the Prospectus.
At or prior to the Applicable Time (as defined
below), the Company had prepared the following information
(collectively, the “Pricing Disclosure Package”): a
Preliminary Prospectus dated September 15, 2009 and each
“free-writing prospectus” (as defined pursuant to
Rule 405 under the Securities Act) listed on Annex C
hereto.
“Applicable Time” means 4:35 P.M.,
New York City time, on September 15, 2009.
2. Purchase
of the Securities by the Underwriters .
(a) On the basis of the representations,
warranties and agreements set forth herein and subject to the
conditions set forth herein (i) the Company agrees to issue
and sell the Securities to the several Underwriters as provided in
this Agreement, (ii) the Guarantor agrees to issue and deliver
the Guaranty, and (iii) each Underwriter agrees, severally and
not jointly, to purchase from the Company and the Guarantor the
respective principal amount of Securities set forth opposite such
Underwriter’s name in Schedule 1 hereto at a price equal
to 98.852% of the principal amount thereof for the Ten Year Notes
(the “Ten Year Purchase Price”) and 97.933% of the
principal amount thereof for the Thirty Year Notes (the
“Thirty Year Purchase Price”) plus accrued interest, if
any, from September 18, 2009 to the Closing Date (as defined
below).
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(b) The Company and the Guarantor
understand that the Underwriters intend to make a public offering
of the Securities as soon after the effectiveness of this Agreement
as in the judgment of the Representatives is advisable, and
initially to offer the Securities on the terms set forth in the
Prospectus. The Company and the Guarantor acknowledge and agree
that the Underwriters may offer and sell Securities to or through
any affiliate (as hereinafter defined) of an
Underwriter.
(c) Payment for the Securities shall be
made by wire transfer in immediately available funds to the account
specified by the Company to the Representatives, at the offices of
Sullivan & Cromwell LLP, 125 Broad Street, New York, New York
10004 at 10:00 A.M., New York City time, on September 18,
2009, or at such other time or place on the same or such other
date, not later than the third business day thereafter, as the
Representatives and the Company may agree upon in writing. The time
and date of such payment for the Securities is referred to herein
as the “Closing Date”.
Payment for the Securities to be purchased on
the Closing Date shall be made against delivery to the
Representatives for the respective accounts of the several
Underwriters of the Securities to be purchased on such date, with
any transfer taxes payable in connection with the sale of such
Securities duly paid by the Company. Delivery of the Securities
shall be made through the facilities of The Depository Trust
Company (“DTC”) unless the Representatives shall
otherwise instruct. The Global Notes for the Securities will be
made available for inspection by the Representatives at the office
of Sullivan & Cromwell LLP set forth above not later than 1:00
P.M., New York City time, on the business day prior to the Closing
Date.
(d) The Company and the Guarantor
acknowledge and agree that the Underwriters are acting solely in
the capacity of an arm’s length contractual counterparty to
the Company and Guarantor with respect to the offering of
Securities contemplated hereby (including in connection with
determining the terms of the offering) and not as a financial
advisor or a fiduciary to, or an agent of, the Company, the
Guarantor or any other person. Additionally, neither the
Representatives nor any other Underwriter is advising the Company,
the Guarantor or any other person as to any legal, tax, investment,
accounting or regulatory matters in any jurisdiction. The Company
and the Guarantor shall consult with their own respective advisors
concerning such matters and shall be responsible for making its own
independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no
responsibility or liability to the Company or the Guarantor with
respect thereto. Any review by the Underwriters of the Company and
the Guarantor and the transactions contemplated hereby or other
matters relating to such transactions will be performed solely for
the benefit of the Underwriters and shall not be on behalf of the
Company, the Guarantor or any other person.
3. Representations and Warranties of
the Company . The Company and the Guarantor, jointly and
severally, represent and warrant to each Underwriter
that:
(a) Preliminary Prospectus. No order
preventing or suspending the use of any Preliminary Prospectus has
been issued by the Commission, and each Preliminary Prospectus
included in the Pricing Disclosure Package, at the time of filing
thereof, complied in all material respects with the Securities Act,
and no Preliminary Prospectus, at the time of filing thereof,
contained any untrue statement of a material fact or 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, not misleading; provided that the Company and the
Guarantor make no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives
expressly for use in any Preliminary Prospectus, it being
understood and agreed that the only such information furnished by
any Underwriter consists of the information described as such in
Section 7(b) hereof.
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(b) Pricing Disclosure Package . The
Pricing Disclosure Package as of the Applicable Time did not, and
as of the Closing Date will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that
the Company and the Guarantor make no representation and warranty
with respect to any statements or omissions made in reliance upon
and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in such Pricing Disclosure
Package, it being understood and agreed that the only such
information furnished by any Underwriter consists of the
information described as such in Section 7(b) hereof.
(c) Issuer Free Writing Prospectus. Other
than the Registration Statement, the Preliminary Prospectus and the
Prospectus, the Company and the Guarantor (including their agents
and representatives, other than the Underwriters in their capacity
as such) have not prepared, used, authorized, approved or referred
to and will not prepare, use, authorize, approve or refer to any
“written communication” (as defined in Rule 405
under the Securities Act) that constitutes an offer to sell or
solicitation of an offer to buy the Securities (each such
communication by the Company, the Guarantor, or their agents and
representatives (other than a communication referred to in clause
(i) below) an “Issuer Free Writing Prospectus”)
other than (i) any document not constituting a prospectus
pursuant to Section 2(a)(10)(a) of the Securities Act or
Rule 134 under the Securities Act or (ii) the documents
listed on Annex C hereto, any electronic road show and any other
written communications approved in writing in advance by the
Representatives. Each such Issuer Free Writing Prospectus
(w) complied in all material respects with the Securities Act,
(x) has been or will be (within the time period specified in
Rule 433) filed in accordance with the Securities Act (to the
extent required thereby), (y) does not include any information
that conflicts with the information contained in the Registration
Statement, including any document incorporated by reference therein
that has not be superseded or modified and (z) when taken together
with the Preliminary Prospectus accompanying, or delivered prior to
delivery of, such Issuer Free Writing Prospectus, did not, and as
of the Closing Date will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that
the Company and the Guarantor make no representation and warranty
with respect to any statements or omissions made in each such
Issuer Free Writing Prospectus or Preliminary Prospectus in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in such Issuer Free
Writing Prospectus or Preliminary Prospectus, it being understood
and agreed that the only such information furnished by any
Underwriter consists of the information described as such in
Section 7(b) hereof.
(d) Registration Statement and
Prospectus. The Registration Statement is an “automatic
shelf registration statement” as defined under Rule 405
of the Securities Act that has been filed with the Commission not
earlier than three years prior to the date hereof; and no notice of
objection of the Commission to the use of such registration
statement or any post-effective amendment thereto pursuant to
Rule 401(g)(2) under the Securities Act has been received by
the Company. No order suspending the effectiveness of the
Registration Statement has been issued by the Commission, and no
proceeding for that purpose or pursuant to Section 8A of the
Securities Act against the Company or related to the offering of
the Securities has been initiated or threatened by the Commission;
as of the applicable effective date of the Registration Statement
and any
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post-effective
amendment thereto, the Registration Statement and any such
post-effective amendment complied and will comply in all material
respects with the Securities Act, and did not and will not contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein not misleading; and as of the date of the
Prospectus and any amendment or supplement thereto and as of the
Closing Date, the Prospectus will not contain any untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided that the Company and the Guarantor make no
representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use in
the Registration Statement and the Prospectus and any amendment or
supplement thereto, it being understood and agreed that the only
such information furnished by any Underwriter consists of the
information described as such in Section 7(b) hereof.
(e) Incorporated Documents. The documents
incorporated by reference in the Registration Statement, the
Prospectus and the Pricing Disclosure Package, when they were filed
with the Commission conformed in all material respects to the
requirements of the Exchange Act, and none of such documents
contained any untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; and any further documents so filed and incorporated by
reference in the Registration Statement, the Prospectus or the
Pricing Disclosure Package, when such documents are filed with the
Commission, will conform in all material respects to the
requirements of the Exchange Act and will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not
misleading.
(f) Financial Statements. The financial
statements (including the related notes thereto) of the Company and
its consolidated subsidiaries included or incorporated by reference
in the Registration Statement, the Pricing Disclosure Package and
the Prospectus comply in all material respects with the applicable
requirements of the Securities Act and the Exchange Act, as
applicable, and present fairly the consolidated financial position
of the Company and its consolidated subsidiaries as of the dates
indicated and the results of their operations and the changes in
their cash flows for the periods specified; such financial
statements have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent
basis throughout the periods covered thereby, and any supporting
schedules included or incorporated by reference in the Registration
Statement present fairly the information required to be stated
therein; and the other financial information included or
incorporated by reference in the Registration Statement, the
Pricing Disclosure Package and the Prospectus has been derived from
the accounting records of the Company and its consolidated
subsidiaries and presents fairly the information shown
thereby.
(g) No Material Adverse Change. Since the
date of the most recent financial statements of the Company
included or incorporated by reference in the Registration
Statement, the Pricing Disclosure Package and the Prospectus,
(i) there has not been any change in the capital stock (other
than the issuance of shares of Common Stock upon exercise of stock
options and warrants described as outstanding in, and the grant of
options and awards under existing equity incentive plans described
in, the Registration Statement, the Pricing Disclosure Package and
the Prospectus), or increase in short-term debt or long-term debt
of the Company and its subsidiaries taken as a whole (except as
disclosed on Schedule 2 hereto), or any dividend or
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distribution of
any kind declared, set aside for payment, paid or made by the
Company on any class of capital stock (other than the regular
quarterly dividend declared on July 22, 2009 and payable on
September 28, 2009), or any material adverse change, or except
as otherwise disclosed in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, any development involving a
prospective material adverse change, in or affecting the business,
properties, management, financial position, stockholders’
equity, results of operations or prospects of the Company and its
subsidiaries taken as a whole; (ii) neither the Company nor
any of its subsidiaries has entered into any transaction or
agreement (whether or not in the ordinary course of business) that
is material to the Company and its subsidiaries taken as a whole or
incurred any liability or obligation, direct or contingent, that is
material to the Company and its subsidiaries taken as a whole; and
(iii) neither the Company nor any of its subsidiaries has
sustained any loss or interference with its business that is
material to the Company and its subsidiaries taken as a whole and
that is either from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor disturbance
or dispute or any action, order or decree of any court or
arbitrator or governmental or regulatory authority, except in each
case as otherwise disclosed in or contemplated by the Registration
Statement, the Pricing Disclosure Package and the
Prospectus.
(h) Organization and Good Standing. The
Company, the Guarantor and each of the Company’s Significant
Subsidiaries (as set forth in Schedule 3 hereto, the
“Significant Subsidiaries”) have been duly organized
and are validly existing and in good standing under the laws of
their respective jurisdictions of organization, are duly qualified
to do business and are in good standing (to the extent such concept
exists in the jurisdiction in question) in each jurisdiction in
which their respective ownership or lease of property or the
conduct of their respective businesses requires such qualification,
and have all power and authority necessary to own or hold their
respective properties and to conduct the businesses in which they
are engaged, except where the failure to be so qualified or in good
standing or have such power or authority would not, individually or
in the aggregate, have a material adverse effect on the business,
properties, management, financial position, stockholders’
equity, results of operations or prospects of the Company and its
subsidiaries taken as a whole or on the performance by the Company
of its obligations under the Transaction Documents (as defined
below) (a “Material Adverse Effect”), and, other than
the Guarantor and the Significant Subsidiaries (which directly or
indirectly own over 10% of the Company’s consolidated assets
or derive over 10% of the Company’s consolidated revenues),
there are no subsidiaries of the Company that directly own (i.e.,
other than through the ownership of equity interests of other
subsidiaries of the Company) over 10% of the Company’s
consolidated assets or directly derive (i.e., other than as a
result of the ownership of equity interests of other subsidiaries
of the Company) over 10% of the Company’s consolidated
revenues.
(i) Capitalization. The Company has an
authorized capitalization as set forth in the Registration
Statement, the Pricing Disclosure Package and the Prospectus under
the heading “Capitalization”; all the outstanding
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable and are
not subject to any pre-emptive or similar rights.
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(j) Due Authorization. Each of the
Company and the Guarantor has full right, power and authority to
execute and deliver this Agreement and the Indenture and to perform
its respective obligations hereunder and thereunder; the Company
has full right, power and authority to execute the Securities and
to perform its obligations thereunder; the Guarantor has full
right, power and authority to execute and deliver the Guaranty and
to perform its obligations thereunder (collectively, the Guaranty,
the Indenture, this Agreement and the Securities are referred to
herein as the “Transaction Documents”); and all action
required to be taken for the due and proper authorization,
execution and delivery by it of each of the Transaction Documents
and the consummation by it of the transactions contemplated thereby
has been duly and validly taken by the Company and the Guarantor,
as the case may be.
(k) The Indenture . The Indenture has
been duly authorized by the Company and the Guarantor and upon
effectiveness of the Registration Statement and on the Closing Date
was or will have been duly qualified under the Trust Indenture Act
and, when duly executed and delivered in accordance with its terms
by each of the parties thereto, will constitute a valid and legally
binding agreement of the Company and the Guarantor enforceable
against the Company and the Guarantor in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency or similar laws affecting creditors’ rights
generally or by equitable principles relating to enforceability
(collectively, the “Enforceability
Exceptions”).
(l) Underwriting Agreement. This
Agreement has been duly authorized, executed and delivered by the
Company and the Guarantor.
(m) The Securities and the Guaranties.
The Securities to be issued and sold by the Company hereunder have
been duly authorized and, when duly executed, authenticated, issued
and delivered as provided in the Indenture and paid for as provided
herein, will be duly and validly issued and outstanding and will
constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms,
subject to the Enforceability Exceptions, and will be entitled to
the benefit of the Indenture. The Guaranty has been duly authorized
by the Guarantor and, when executed and delivered by the Guarantor
and affixed to the Securities, will constitute the valid and
legally binding obligation of the Guarantor, will be in the form
contemplated by the Indenture, entitled to the benefits of the
Indenture and enforceable against the Guarantor in accordance with
its terms, subject to the Enforceability Exceptions.
(n) No Violation or Default. None of the
Company, the Guarantor or any of the Significant Subsidiaries is in
violation of its charter or by-laws or similar organizational
documents. Neither the Company nor any of its subsidiaries
(including the Guarantor) is (i) in default, and no event has
occurred that, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of
any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound
or to which any of the property or assets of the Company or any of
its subsidiaries is subject; or (ii) in violation of any law
or statute or any judgment, order, rule or regulation of any court
or arbitrator or governmental or regulatory authority, except for
any such default or violation that would not, individually or in
the aggregate, have a Material Adverse Effect.
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(o) No Conflicts. The execution, delivery
and performance by the Company and the Guarantor of each of the
Transaction Documents to which each is a party, the issuance and
sale of the Securities and the consummation of the transactions
contemplated by the Transaction Documents will not
(i) conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, (ii) result in any violation of the provisions of the
charter or by-laws or similar organizational documents of the
Company or any of its subsidiaries or (iii) result in the
violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory
authority, except, in the case of clauses (i) and
(iii) above, for any such conflict, breach, violation or
default that would not, individually or in the aggregate, have a
Material Adverse Effect.
(p) No Consents Required. No consent,
approval, authorization, order, registration or qualification of or
with any court or arbitrator or governmental or regulatory
authority is required for the execution, delivery and performance
by the Company and the Guarantor of each of the Transaction
Documents to which it is a party, the issuance and sale of the
Securities and the consummation of the transactions contemplated by
the Transaction Documents, except for the registration of the
Securities under the Securities Act, the qualification of the
Indenture under the Trust Indenture Act and such consents,
approvals, authorizations, orders and registrations or
qualifications as may be required under applicable state or other
securities laws in connection with the purchase and distribution of
the Securities by the Underwriters.
(q) Legal Proceedings. Except as
described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, there are no legal, governmental or
regulatory investigations, actions, suits or proceedings pending to
which the Company or any of its subsidiaries is a party or to which
any property of the Company or any of its subsidiaries is the
subject that, individually or in the aggregate, if determined
adversely to the Company or any of its subsidiaries, would
reasonably be expected to have a Material Adverse Effect; no such
investigations, actions, suits or proceedings are, to the knowledge
of the Company, threatened or contemplated by any governmental or
regulatory authority or threatened by others; and (i) there
are no current or pending legal, governmental or regulatory
actions, suits or proceedings that are required under the
Securities Act to be described in the Registration Statement, the
Pricing Disclosure Package or the Prospectus that are not so
described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus and (ii) there are no statutes,
regulations or contracts or other documents that are required under
the Securities Act to be filed as exhibits to the Registration
Statement or described in the Registration Statement, the Pricing
Disclosure Package or the Prospectus that are not so filed as
exhibits to the Registration Statement or described in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus.
(r) Independent Accountants .
PricewaterhouseCoopers LLP, which has certified certain financial
statements of the Company and its subsidiaries, is an independent
registered public accounting firm with respect to the Company and
its subsidiaries within the applicable rules and regulations
adopted by the Commission and the Public Company Accounting
Oversight Board (United States) and as required by the Securities
Act.
(s) Title to Real and Personal Property .
The Company and its subsidiaries have good title in fee simple (in
the case of real property) to, or have valid rights to lease or
otherwise use, all items of real and personal property and assets
that are material to the respective businesses of the Company and
its subsidiaries, in each case free and clear of all liens,
encumbrances, claims and defects and imperfections of title except
those that (i) do not materially interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries or (ii) would not, individually or in the
aggregate, have a Material Adverse Effect.
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(t) Title to Intellectual Property . Each
of the Company, the Guarantor and the Significant Subsidiaries own
or possess adequate rights to use all material patents, patent
applications, trademarks, service marks, trade names, trademark
registrations, service mark registrations, copyrights, licenses and
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures) (collectively, the “Intellectual Property”)
reasonably necessary for the conduct of their respective businesses
as currently conducted and as proposed to be conducted, except
where the failure to own or possess such Intellectual Property
would not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect. The Company and its subsidiaries
(including the Guarantor) have not received any notice of
infringement, misappropriation or conflict with the asserted rights
of others with respect to any Intellectual Property except for
notices the content of which if accurate would not, individually or
in the aggregate, have a Material Adverse Effect.
(u) No Undisclosed Relationships . No
relationship, direct or indirect, exists between or among the
Company or any of its subsidiaries, on the one hand, and the
directors, officers, stockholders or affiliates of the Company or
any of its subsidiaries, on the other, that is required by the
Securities Act to be described in the Registration Statement and
the Prospectus and that is not so described in such documents and
in the Pricing Disclosure Package.
(v) Investment Company Act . Neither the
Company nor the Guarantor is, and after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, neither of them will
be required to register as an “investment company” or
an entity “controlled” by an “investment
company” within the meaning of the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Investment Company
Act”).
(w) Taxes. Each of the Company and its
subsidiaries has filed all federal, state, local and foreign tax
returns required to be filed by it through the date hereof and paid
all taxes as shown thereon and all assessments received by it to
the extent required to be paid and not being contested in good
faith, except where the failure to do so would not have a Material
Adverse Effect; and to the Company’s knowledge, except as
otherwise disclosed in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, there is no tax deficiency
that has been, or could reasonably be expected to be, asserted in
writing against the Company or any of its subsidiaries or any of
their respective properties or assets that if ultimately upheld
would have a Material Adverse Effect.
(x) Licenses and Permits. The Company and
its subsidiaries possess all licenses, certificates, permits and
other authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign
governmental or regulatory authorities that are necessary for the
ownership or lease of their respective properties or the conduct of
their respective businesses as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus,
except where the failure to possess or make the same would not,
individually or in the aggregate, have a Material Adverse Effect;
and except as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, neither the Company nor any
of its subsidiaries has received notice of any revocation or
modification of any such license, certificate, permit or
authorization or has any reason to believe that any such license,
certificate, permit or authorization will not be renewed in the
ordinary course, which would, individually or in the aggregate,
have a Material Adverse Effect.
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(y) No Labor Disputes. No labor
disturbance by or dispute with employees of the Company or any of
its subsidiaries exists or, to the knowledge of the Company, is
contemplated or threatened, and the Company is not aware of any
existing or imminent labor disturbance by, or dispute with, the
employees of any of its or its subsidiaries’ principal
suppliers, contractors or customers, except as would not,
individually or in the aggregate, have a Material Adverse
Effect.
(z) Compliance with and Liability under
Environmental Laws. Except as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, and
except for matters that would not individually or in the aggregate
reasonably be expected to have a Material Adverse Effect,
(i) the Company and its subsidiaries are, and at all prior
times were, in compliance with any and all applicable federal,
state, local and foreign laws, rules, regulations, requirements,
decisions, judgments, decrees, orders and the common law relating
to pollution or the protection of the environment, natural
resources or human health or safety, including those relating to
the generation, storage, treatment, use, handling, transportation,
Release or threat of Release of Hazardous Materials (as defined
below) (collectively, “Environmental Laws”);
(ii) the Company and its subsidiaries have received and are in
compliance with all permits, licenses, certificates or other
authorizations or approvals required of them under applicable
Environmental Laws to conduct their respective businesses;
(iii) the Company and its subsidiaries have not received
notice of any actual or potential liability under or relating to,
or actual or potential violation of, any Environmental Laws,
including for the investigation or remediation of any Release or
threat of Release of Hazardous Materials, and have no knowledge of
any event or condition that would reasonably be expected to result
in any such notice; (iv) neither the Company nor any of its
subsidiaries is conducting or paying for, in whole or in part, any
investigation, remediation or other corrective action pursuant to
any Environmental Law at any location; (v) neither the Company
nor any of its subsidiaries is a party to any order, decree or
agreement that imposes any obligation or liability under any
Environmental Law; (vi) other than as reserved on the
Company’s financial statements, there are no costs or
liabilities associated with Environmental Laws of or relating to
the Company or its subsidiaries; and (vii) (A) there are no
proceedings that are pending, or that are known to be contemplated,
against the Company or any of its subsidiaries under any
Environmental Laws in which a governmental entity is also a party,
other than such proceedings regarding which it is reasonably
believed no monetary sanctions of $100,000 or more will be imposed,
and (B) the Company and its subsidiaries are not aware of any facts
or issues regarding compliance with Environmental Laws, or
liabilities or other obligations under Environmental
Laws.
(aa) Compliance with ERISA. To the best
knowledge of the Company (i) each employee benefit plan,
within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), for
which the Company or any member of its “Controlled
Group” (defined as any organization which is a member of a
controlled group of corporations within the meaning of
Section 414 of the Internal Revenue Code of 1986, as amended
(the “Code”)) would reasonably be expected to have any
material liability (each, a “Plan”) has been maintained
in compliance with its terms and the requirements of ERISA and the
Code in all material respects, except where the failure to be in
such compliance would not, individually or in the aggregate, have a
Material Adverse Effect; (ii) no material prohibited
transaction, within the meaning of Section 406 of ERISA or
Section 4975 of the Code, has occurred with respect to any
Plan excluding transactions effected pursuant to a statutory or
administrative exemption that could reasonably be expected to
result in a material liability to the Company or its subsidiaries;
(iii) for each Plan that is subject to the funding rules of
Section 412 of the Code or Section 302 of ERISA, the
minimum funding standard of Section 412 of the Code or
Section 302 of ERISA, as
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applicable, has
been satisfied (without taking into account any waiver thereof or
extension of any amortization period) and is reasonably expected to
be satisfied in the future (without taking into account any waiver
thereof or extension of any amortization period); (iv) except
as otherwise disclosed in the Registration Statement, Pricing
Disclosure Package and the Prospectus, there is no material
difference between the fair market value of the assets of each Plan
and the present value of all benefits accrued under such Plan
(determined based on those assumptions used to fund such Plan);
(v) no “reportable event” (within the meaning of
Section 4043(c) of ERISA) has occurred or is reasonably expected to
occur for which the Company would have liability; (vi) neither
the Company nor any member of the Controlled Group has incurred,
nor reasonably expects to incur, any liability under Title IV of
ERISA (other than contributions to the Plan or premiums to the
Pension Benefit Guarantee Corporation, in the ordinary course and
without default) in respect of a Plan (including a
“multiemployer plan”, within the meaning of
Section
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