Item 1.01. Entry into a Material Definitive Agreement.
On May 14, 2023 (Mountain Daylight Time) / May 15, 2023 (Australian
Eastern Standard Time), Newmont Corporation, a Delaware corporation (“Newmont” or the “Company”), entered into
a scheme implementation deed (the “Scheme Implementation Deed”) with Newmont Overseas Holdings Pty Ltd, an Australian proprietary
company limited by shares and an indirect wholly owned subsidiary of Newmont (“Newmont Sub”) and Newcrest Mining Limited,
an Australian public company limited by shares (“Newcrest”), pursuant to which, on the terms and subject to the conditions
set forth therein, Newmont Sub will acquire all of the issued and outstanding ordinary shares of Newcrest pursuant to a court-approved
scheme of arrangement under Part 5.1 of Australia’s Corporations Act 2001 (Cth) (“Corporations Act”) (the
“Scheme” and such acquisition, the “Transaction”). Upon completion of the Transaction, Newcrest will be
a wholly owned subsidiary of Newmont Sub and an indirect wholly owned subsidiary of Newmont. The
closing of the Transaction is expected to occur in the fourth quarter of calendar year 2023, subject to the satisfaction or waiver (where
permitted) of the conditions precedent to such closing.
On the terms and subject to the conditions of the Scheme Implementation
Deed and the Scheme, when the Scheme becomes effective (the “Effective Time”), all issued and outstanding Newcrest ordinary
shares as of the record date for the Scheme will be transferred to Newmont Sub and the holders of such Newcrest ordinary shares (other
than Ineligible Foreign Shareholders, as defined in the Scheme Implementation Deed) will have the right to receive, for each such share,
either (1) 0.400 of a share (“New Newmont Shares”) of Newmont common stock, par value $1.60 per share (“Newmont
common stock”) or (2) 0.400 CHESS Depositary Interests (“New Newmont CDIs” and together with the New Newmont Shares,
the “Scheme Consideration”) each representing a unit of beneficial ownership interest in a share of Newmont common stock to
be issued by Newmont pursuant to a Deed Poll to be executed by Newmont and Newmont Sub in favor of all Newcrest shareholders (“Deed
Poll”). The form of consideration received by each shareholder depends on their country of residence and shareholder preferences.
Conditions to the Transaction
The respective obligations
of Newmont and Newcrest to consummate the Transaction are subject to the satisfaction or waiver (if applicable) of a number of
customary conditions, including, but not limited to: (1) approval by a majority in number of Newcrest’s shareholders
voting and 75% of the votes cast for the Scheme in accordance with the Corporations Act (the “Newcrest Shareholder
Approval”); (2) approval by a majority of votes cast by Newmont stockholders with respect to the issuance of the Newmont
common stock comprising the Scheme Consideration (“Newmont Stockholder Approval”); (3) certain regulatory
approvals, including, but not limited to, approval, non-objection or clearance by Australia’s Foreign Investment Review
Board, Canadian Competition Bureau and the Independent Consumer and Competition Commission of Papua New Guinea;
(4) non-occurrence of a Newmont Prescribed Occurrence (as defined in the Scheme Implementation Deed) or a Newcrest
Prescribed Occurrence (as defined in the Scheme Implementation Deed); (5) non-occurrence of a Newmont Material
Adverse Change (as defined in the Scheme Implementation Deed) or a Newcrest Material Adverse Change (as defined in the Scheme
Implementation Deed); (6) approval of the Scheme by the Federal Court of Australia, or another court of competent jurisdiction
under the Corporations Act agreed by Newmont and Newcrest (the “Court”); (7) the absence of any governmental order,
injunction, decree or ruling prohibiting consummation of the Transaction; (8) issuance of a customary independent expert report
concluding and continuing to conclude that the Scheme is in the best interests of the Newcrest shareholders; (9) the Scheme
Consideration issuable in the Transaction having been approved for listing on the NYSE and Australian Securities Exchange
(“ASX”), respectively; (10) receipt by Newcrest of confirmation from the Australian Taxation Office that it is
prepared to issue a Class Ruling (as defined in the Scheme Implementation Deed) confirming the eligibility for scrip-for-scrip
roll-over relief in connection with the issuance of the Scheme Consideration; (11) Newcrest having taken all necessary steps to
ensure that the ordinary shares issued under the Newcrest employee incentive arrangements have lapsed or vested; and (12) the Scheme
Consideration being exempt from the registration requirements of the Securities Act of 1933, as amended (the “Securities
Act”).
Representations and Warranties; Covenants;
Board Recommendations
The Scheme Implementation Deed contains customary
representations and warranties given by Newmont, Newmont Sub and Newcrest. The Scheme Implementation Deed also contains pre-closing covenants
as is customary for transactions of this nature, including, but not limited to, the obligation of each of Newcrest and Newmont, to the
extent within its power to do so, to conduct its business and operations in the ordinary and usual course and use its best endeavors to
maintain its business and assets in the ordinary course and preserve its relationships with government agencies and other material business
relationships. Additionally, the Scheme Implementation Deed includes customary covenants by each of Newmont and Newcrest to refrain from
taking specified actions without the consent of the other party. Newmont, Newmont Sub and Newcrest have agreed to take all necessary steps
to implement the Scheme in a timely manner.
Newmont’s board of directors has unanimously
agreed to recommend that Newmont’s stockholders vote in favor of Newmont Stockholder Approval and Newcrest’s board of directors
has unanimously agreed to recommend that Newcrest’s shareholders vote in favor of the Scheme, with such recommendation in each case
subject to customary exceptions, including the absence of a Newmont Superior Proposal (as defined in the Scheme Implementation Deed) or
a Newcrest Superior Proposal (as defined in the Scheme Implementation Deed), as applicable.
The Scheme Implementation Deed provides that,
during the Exclusivity Period (as defined in the Scheme Implementation Deed), Newmont and
Newcrest are subject to certain restrictions on their ability to solicit alternative acquisition proposals from third parties, to provide
information to third parties and to engage in discussions with third parties regarding alternative acquisition proposals, subject to customary
exceptions. Notwithstanding these restrictions, Newmont and Newcrest are permitted to provide information to, and engage in discussions
with, a party which has made an unsolicited acquisition proposal that the Newmont board of directors or the Newcrest board of directors
(as applicable) has determined, among other things, after receiving the advice of financial and legal advisors, is or could reasonably
be considered to become a Newcrest Superior Proposal or Newmont Superior Proposal (each, as defined in the Scheme Implementation Deed),
as applicable. Before (1) the board of directors of Newcrest changes its recommendation, or (2) Newcrest enters into an agreement
to effect a Newcrest Superior Proposal, Newmont must be presented with a five business day “match right”.
Treatment of Equity Awards
Newmont and Newcrest have agreed in the Scheme
Implementation Deed that any option, restricted share or right to Newcrest ordinary shares issued under the employee incentive arrangements
of Newcrest will have either lapsed or vested and converted into Newcrest ordinary shares prior to the Scheme record date and will participate
in the Scheme on the same basis as other Newcrest ordinary shares. As at the Scheme record date, no outstanding such option, restricted
share or right will remain outstanding.
Termination
The Scheme Implementation Deed contains certain
customary termination rights for both Newmont and Newcrest, including, among others, if there is or may be a failure of a condition precedent
to be satisfied in accordance with its terms and Newmont and Newcrest are unable to agree on
a revision to the terms of the Scheme after such failure of the conditions precedent or the
Scheme has not become effective by 11:59pm (Melbourne, Australia time) on February 15, 2024 (the “End Date”).
Each of Newmont and Newcrest may terminate the Scheme Implementation Deed if, among other
things, (1) the other party’s board of directors fails to recommend the Transaction or has made an adverse change in recommendation
or (2) the other party materially breaches certain terms of the Scheme Implementation Deed, subject to certain cure periods. Newcrest
may also terminate the Scheme Implementation Deed if its board of directors has determined that a Newcrest Competing Proposal (as defined
in the Scheme Implementation Deed) constitutes a Newcrest Superior Proposal (as defined in
the Scheme Implementation Deed) that Newmont does not match within the prescribed timeframe.
Break Fee and Reverse Break Fee
Under the Scheme Implementation Deed, Newcrest
will be required to make a payment of US$178,515,206 to Newmont if (1) there is an adverse change in recommendation by a member
of Newcrest’s board of directors (unless the independent expert concludes that the Scheme is not in the best interest of the Newcrest
shareholders or Newcrest is entitled to terminate on the basis of a material breach of certain terms of the Scheme Implementation Deed
by Newmont), (2) a competing transaction for Newcrest is announced, and such a competing transaction is completed within 18 months
of the date of such announcement, or (3) Newmont validly terminates the Scheme Implementation Deed on the basis of a material breach
of certain terms of the Scheme Implementation Deed by Newcrest.
Under the Scheme Implementation Deed, Newmont
will be required to make a payment of U.S.$374,766,240 to Newcrest if (1) there is an adverse change in recommendation by a member
of Newmont’s board of directors (unless Newmont is entitled to terminate the Scheme Implementation Deed on the basis of a material
breach of certain terms of the Scheme Implementation Deed by Newcrest), (2) a competing transaction for Newmont is announced, and
such a competing transaction is completed within 18 months of the date of such announcement, (3) Newcrest validly terminates the
Scheme Implementation Deed on the basis of a material breach of certain terms of the Scheme Implementation Deed by Newmont or (4) the
Scheme becomes effective but Newmont does not pay the Scheme Consideration. Additionally, Newmont must pay an amount equal to Newcrest’s
actual third-party costs if Newcrest terminates the Scheme Implementation Deed due to a failure to obtain the Newmont stockholder approval
(whether or not a competing proposal for Newmont has been announced prior to the Newmont stockholder meeting).
In the event the Scheme becomes Effective
(as defined in the Scheme Implementation Deed), no termination fee will be payable by either
Newmont or Newcrest.
Special Meeting
The
Newmont stockholder meeting (the “Special Meeting”) to consider the Scheme and the share issuance necessary to complete the
Scheme is expected to be held within 48 hours before the Newcrest shareholder meeting is convened to vote on the Transaction. At the Special
Meeting, the stockholders of Newmont will be asked to vote on two separate proposals: (i) the issuance of the Newmont common
stock comprising the Scheme Consideration, which is a condition to consummate the Transaction, and (ii) an increase in Newmont’s
authorized share capital in Newmont’s Restated Certificate of Incorporation (the “Authorized Share Capital Proposal”),
which is not a condition to consummate the transaction. The increase that Newmont expects to propose would be from 1,280,000,000 shares
currently, to an amount to be specified, up to 2,550,000,000 million shares. The approval of the issuance of the Newmont common stock
comprising the Scheme Consideration requires the favorable vote of a majority of votes cast by Newmont stockholders for adoption. The
approval of the Authorized Share Capital Proposal requires the favorable vote of a majority of the outstanding Newmont Shares for adoption.
Special Dividend
The
Scheme Implementation Deed provides that Newcrest may, subject to complying with applicable law, declare and pay to Newcrest shareholders
a special dividend of up to $1.10 per share, subject to the Scheme becoming Effective (as
defined in the Scheme Implementation Deed).
Voting Confirmations
In accordance with, and as at the date of,
the Scheme Implementation Deed, each member of Newmont’s board and of Newcrest’s board has confirmed such director’s
recommendation, and such director’s intention to vote any shares of Newmont common stock or Newcrest ordinary shares, respectively
they own, in favor of the Newmont Stockholder Approval and Newcrest Shareholder Approval, respectively,
in the absence of a superior competing proposal.
Additional Information
Newmont has agreed to invite two of Newcrest’s
existing directors to join the board of directors of Newmont, on or before the implementation of the Scheme, conditional on the Scheme
becoming Effective (as defined in the Scheme Implementation Deed).
The foregoing description of the Transaction,
the Scheme and the Scheme Implementation Deed does not purport to be a complete description of all
the parties’ rights and obligations under the Scheme Implementation Deed and is qualified in its entirety by reference to
the full text of the Scheme Implementation Deed, which is filed as Exhibit 2.1 to this Current Report on Form 8-K, and
is incorporated herein by reference. A copy of the Scheme Implementation Deed has been included solely to provide investors with information
regarding its terms and is not intended to provide any factual information about Newmont, Newcrest or their respective subsidiaries or
affiliates.
The Scheme Implementation Deed contains representations,
warranties, covenants and agreements, which were made only for purposes of such agreement and as of specified dates. The representations
and warranties in the Scheme Implementation Deed reflect negotiations between the parties to the Scheme Implementation Deed and are not
intended as statements of fact to be relied upon by Newmont’s stockholders or Newcrest’s shareholders or any other person.
In particular, the representations, warranties, covenants and agreements in the Scheme Implementation Deed may be subject to limitations
agreed by the parties, including having been modified or qualified by certain confidential disclosures that were made between the parties
in connection with the negotiation of the Scheme Implementation Deed, and having been made for purposes of allocating contractual risk
among the parties rather than establishing matters of fact. In addition, the parties may apply standards of materiality in a way that
is different from what may be viewed as material by investors. As such, the representations, warranties and covenants in the Scheme Implementation
Deed or any descriptions thereof may not describe the actual state of affairs at the date they were made or at any other time and you
should not rely on them. Moreover, information concerning the subject matter of the representations and warranties may change after the
date of the Scheme Implementation Deed, and should be read in conjunction with other information regarding Newmont and Newcrest that is
or will be contained in or incorporated by reference into the documents that Newmont files or has filed with the SEC and unless required
by applicable law, Newmont undertakes no obligation to update such information.