As filed with the Securities and Exchange Commission on April 18, 2002
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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NEWMONT MINING CORPORATION
(Exact name of Registrant as specified in its charter)
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Delaware 1700 Lincoln Street 84-1611629
(State or other jurisdiction of Denver, Colorado 80203 (I.R.S. Employer
incorporation or organization) (303) 863-7414 Identification No.)
(Address of principal executive offices)
NEWMONT MINING CORPORATION
Newmont Mining Corporation of Canada Limited Employees' Stock Option Plan
(Full Title of Plan)
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Britt D. Banks, Esq.
Newmont Mining Corporation
1700 Lincoln Street
Denver, Colorado 80203
(303) 863-7414
(Name, address and telephone number,
including area code, of agent for service)
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Copies to:
Maureen Brundage, Esq.
White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
(212) 819-8200
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of each class of Amount to be offering price aggregate offering Amount of
securities to be registered registered (1) per share (2) price (2) registration fee
------------------------------------ ----------------- -------------------- ------------------- ------------------------
Common Stock, $1.60 par value (and 2,551,448 $27.96 $71,338,486 $6563.14
associated Preferred Stock
Purchase Rights)
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(1) The number of shares of Common Stock of Newmont Mining Corporation that may be issued upon exercise of the
outstanding options of Newmont Mining Corporation of Canada Limited, based upon the exercise prices in effect on
April 16, 2002. Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this Registration Statement
shall be deemed also to cover an indeterminable number of additional shares that may become issuable pursuant to
the anti-dilution provisions applicable to the options.
(2) Estimated solely for the purpose of calculating the registration fee in accordance with Rules 457(h) and 457(c)
under the Securities Act of 1933, based upon the average of the high and low prices of the Common Stock as reported
on the New York Stock Exchange, Inc. on April 16, 2002.
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EXPLANATORY NOTE
The Corporation has prepared this Registration Statement in accordance
with the requirements of Form S-8 under the Securities Act, to register
2,551,448 shares of common stock, $1.60 par value per share, of the Corporation
(the "Common Stock") that may be issued from time to time upon exercise of
outstanding options under the Newmont Mining Corporation of Canada Limited
Employees' Stock Option Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
On February 15, 2002, Delta Acquisitionco Corp., at the time a direct
wholly owned subsidiary of Delta Holdco Corp. ("Holdco") and an indirect wholly
owned subsidiary of Newmont Mining Corporation ("Old Newmont"), was merged into
Old Newmont (the "Reorganization"), with Old Newmont being the surviving
corporation. As a result of the Reorganization, Old Newmont became a wholly
owned subsidiary of Holdco. In connection with the Reorganization, Holdco
changed its name to "Newmont Mining Corporation" and Old Newmont changed its
name to "Newmont USA Limited". Pursuant to the Reorganization, shares of Old
Newmont common stock were exchanged for shares of common stock of Holdco.
References herein to documents filed by the "Corporation" prior to February 15,
2002 shall mean documents filed by Old Newmont. All other references herein to
the "Corporation" or to the "Registrant" shall mean Holdco.
On February 16, 2002, the Corporation acquired Franco-Nevada Mining
Corporation Limited ("Franco-Nevada"), the name of which has now been changed to
Newmont Mining Corporation of Canada Limited. Pursuant to the acquisition,
options to purchase shares of Franco-Nevada issued pursuant to the Franco-Nevada
Employees' Stock Option Plan (now called the Newmont Mining Corporation of
Canada Limited Employees' Stock Option Plan) are exercisable for shares of
common stock of the Corporation.
The Corporation hereby incorporates by reference into this
Registration Statement the following documents filed with the Securities and
Exchange Commission:
o The Corporation's Annual Report on Form 10-K for the year ended
December 31, 2001.
o The Corporation's Current Reports on Form 8-K filed on January
17, 2002 , February 7, 2002, March 1, 2002 (as amended by a
Current Report on Form 8-K/A filed on April 16, 2002), April 3,
2002 and April 16, 2002.
o The description of the Common Stock contained in the
Corporation's registration statement on Form 8-A for its Common
Stock filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), including any amendment or report filed for
the purpose of updating such description.
All documents subsequently filed by the Corporation pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregister all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained herein
or in a document all or a portion of which is incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article Tenth of the Corporation's Certificate of Incorporation
provides that the directors of the Corporation shall be protected from personal
liability, through indemnification or otherwise, to the fullest extent permitted
under the General Corporation Law of the State of Delaware as from time to time
in effect.
The By-Laws of the Corporation provide that each person who at any
time is or shall have been a director or officer of the Corporation, or is or
shall have been serving another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity at the request of the
Corporation, and his or her heirs, executors and administrators, shall be
indemnified by the Corporation in accordance with and to the full extent
permitted by the General Corporation Law of the State of Delaware. Article VI of
the By-Laws of the Corporation facilitates enforcement of the right of
directors, officers and others to be indemnified by establishing such right as a
contract right pursuant to which the person entitled thereto may bring suit as
if the indemnification provisions of the By-Laws were set forth in a separate
written contract between the Corporation and the director or officer.
Section 145 of the General Corporation Law of the State of Delaware
authorizes and empowers each Delaware corporation to indemnify its directors,
officers, employees and agents against liabilities incurred in connection with,
and related expenses resulting from, any claim, action or suit brought against
any such person as a result of his or her relationship with the corporation,
provided that such persons acted in good faith and in a manner such person
reasonably believed to be in, and not opposed to, the best interests of the
corporation in connection with the acts or events on which such claim, action or
suit is based. The finding of either civil or criminal liability on the part of
such person in connection with such acts or events is not necessarily
determinative of the question of whether such person has met the required
standard of conduct and is, accordingly, entitled to be indemnified. The
foregoing statements are subject to the detailed provisions of Section 145 of
the General Corporation Law of the State of Delaware.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description of Documents
4.1 Certificate of Incorporation of Registrant. Incorporated by
reference to Appendix F to the Registrant's Registration
Statement on Form S-4 (File No. 333-76506), filed with the
Securities and Exchange Commission on January 10, 2002.
4.2 Certificate of Elimination of Series A Junior Participating
Preferred Stock of Registrant. Incorporated by reference to
Exhibit 3.2 to the Registrant's Registration Statement on Form
8-A (File No. 001-31240), relating to the registration of its
common stock, filed with the Securities and Exchange Commission
on February 15, 2002.
4.3 Certificate of Designations of Special Voting Stock. Incorporated
by reference to Exhibit 3.3 to the Registrant's Registration
Statement on Form 8-A (File No. 001-31240), relating to the
registration of its common stock, filed with the Securities and
Exchange Commission on February 15, 2002.
4.4 Certificate of Designations of Series A Junior Participating
Preferred Stock of Registrant. Incorporated by reference to
Exhibit 3.1 to the Registrant's Registration Statement on Form
8-A (File No. 001-31240), relating to the registration of its
preferred stock purchase rights, filed with the Securities and
Exchange Commission on February 15, 2002.
4.5 Certificate of Designations of $3.25 Convertible Preferred Stock
of Registrant. Incorporated by reference to Exhibit 3.3 to the
Registrant's Registration Statement on Form 8-A (File No.
001-31240), relating to the registration of such preferred stock,
filed with the Securities and Exchange Commission on February 15,
2002.
4.6 Certificate of Amendment to the Certificate of Incorporation of
Registrant. Incorporated by reference to Exhibit 3.4 to the
Registrant's Registration Statement on Form 8-A (File No.
001-31240), relating to the registration of its common stock,
filed with the Securities and Exchange Commission on February 15,
2002.
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4.7 By-Laws of the Registrant. Incorporated by reference to Appendix
G to the Registrant's Registration Statement on Form S-4 (File
No. 333-76506), filed with the Securities and Exchange Commission
on January 10, 2002.
4.8 Rights Agreement, dated as of February 13, 2002, between the
Registrant and Mellon Investor Services LLC (which includes the
form of Certificate of Designations of Series B Junior Preferred
Stock of the Company as Exhibit A, the form of Right Certificate
as Exhibit B and the Summary of Rights to Purchase Preferred
Shares as Exhibit C). Incorporated by reference to Exhibit 4.1 to
the Registrant's Registration Statement on Form 8-A (File No.
001-31240), relating to the registration of its preferred stock
purchase rights, filed on February 15, 2002.
5 Opinion of White & Case LLP, counsel to the Corporation, with
respect to the legality of the Common Stock being registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Deloitte, Touche, Tohmatsu.
23.4 Consent of White & Case LLP (included in Exhibit 5 to the
Registration Statement).
24 Power of Attorney of certain officers and directors.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment or prospectus supplement to this
registration statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) to include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof;
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering; and
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(4) that, for the purposes of determining any liability under the
Securities Act of 1933, each filing of Registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Denver, State of Colorado, on the 18 day of April,
2002.
NEWMONT MINING CORPORATION
By /s/ Britt D. Banks
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Name: Britt D. Banks
Title: Vice President, General Counsel
and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
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Glen A. Barton Director April 18, 2002
*
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Vincent A. Calarco Director April 18, 2002
*
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Ronald C. Cambre Director April 18, 2002
*
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James T. Curry, Jr. Director April 18, 2002
*
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Joseph P. Flannery Director April 18, 2002
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Leo I. Higdon, Jr. Director April 18, 2002
*
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M. Craig Haase Director April 18, 2002
*
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Michael S. Hamson Director April 18, 2002
*
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Pierre Lassonde Director April 18, 2002
*
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Robert J. Miller Director April 18, 2002
* Chairman of the Board and Chief
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Wayne W. Murdy Executive Officer
(Principal Executive Officer) April 18, 2002
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*
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Robin A. Plumbridge Director April 18, 2002
*
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John B. Prescott Director April 18, 2002
*
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Moeen A. Qureshi Director April 18, 2002
*
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Michael K. Reilly Director April 18, 2002
*
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Seymour Schulich Director April 18, 2002
*
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James V. Taranik Director April 18, 2002
/s/ Bruce D. Hansen Senior Vice President and
--------------------------- Chief Financial Officer
Bruce D. Hansen (Principal Financial Officer) April 18, 2002
/s/ Linda K. Wheeler Vice President and Controller
----------------------- (Principal Financial Officer) April 18, 2002
Linda K. Wheeler
*By /s/ Britt D. Banks
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Britt D. Banks,
as Attorney-in-fact
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Exhibit No.
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4.1 Certificate of Incorporation of Registrant. Incorporated by
reference to Appendix F to the Registrant's Registration
Statement on Form S-4 (File No. 333-76506), filed with the
Securities and Exchange Commission on January 10, 2002.
4.2 Certificate of Elimination of Series A Junior Participating
Preferred Stock of Registrant. Incorporated by reference to
Exhibit 3.2 to the Registrant's Registration Statement on Form
8-A (File No. 001-31240), relating to the registration of its
common stock, filed with the Securities and Exchange Commission
on February 15, 2002.
4.3 Certificate of Designations of Special Voting Stock. Incorporated
by reference to Exhibit 3.3 to the Registrant's Registration
Statement on Form 8-A (File No. 001-31240), relating to the
registration of its common stock, filed with the Securities and
Exchange Commission on February 15, 2002.
4.4 Certificate of Designations of Series A Junior Participating
Preferred Stock of Registrant. Incorporated by reference to
Exhibit 3.1 to the Registrant's Registration Statement on Form
8-A (File No. 001-31240), relating to the registration of its
preferred stock purchase rights, filed with the Securities and
Exchange Commission on February 15, 2002.
4.5 Certificate of Designations of $3.25 Convertible Preferred Stock
of Registrant. Incorporated by reference to Exhibit 3.3 to the
Registrant's Registration Statement on Form 8-A (File No.
001-31240), relating to the registration of such preferred stock,
filed with the Securities and Exchange Commission on February 15,
2002.
4.6 Certificate of Amendment to the Certificate of Incorporation of
Registrant. Incorporated by reference to Exhibit 3.4 to the
Registrant's Registration Statement on Form 8-A (File No.
001-31240), relating to the registration of its common stock,
filed with the Securities and Exchange Commission on February 15,
2002.
4.7 By-Laws of the Registrant. Incorporated by reference to Appendix
G to the Registrant's Registration Statement on Form S-4 (File
No. 333-76506), filed with the Securities and Exchange Commission
on January 10, 2002.
4.8 Rights Agreement, dated as of February 13, 2002, between the
Registrant and Mellon Investor Services LLC (which includes the
form of Certificate of Designations of Series B Junior Preferred
Stock of the Company as Exhibit A, the form of Right Certificate
as Exhibit B and the Summary of Rights to Purchase Preferred
Shares as Exhibit C). Incorporated by reference to Exhibit 4.1 to
the Registrant's Registration Statement on Form 8-A (File No.
001-31240), relating to the registration of its preferred stock
purchase rights, filed on February 15, 2002.
5 Opinion of White & Case LLP, counsel to the Corporation, with
respect to the legality of the Common Stock being registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Deloitte, Touche, Tohmatsu.
23.4 Consent of White & Case LLP (included in Exhibit 5 to the
Registration Statement).
24 Power of Attorney of certain officers and directors.
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