Registration No. 333-
As filed with the Securities and Exchange Commission on January 23, 2004
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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NEWMONT MINING CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
84-1611629
(I.R.S. Employer Identification No.)
1700 Lincoln Street
Denver, Colorado 80203
(303) 863-7414
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
Britt D. Banks, Esq.
Newmont Mining Corporation
1700 Lincoln Street
Denver, Colorado 80203
(303) 863-7414
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Maureen Brundage, Esq.
White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
(212) 819-8200
Approximate date of commencement of proposed sale to the public: From time
to time after this registration statement becomes effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. |_|
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.|X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
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 unit (1) price (1) registration fee
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Common Stock (and associated Preferred
Stock Purchase Rights) (2)
Warrants for Common Stock (3)
Total......................................US$150,000,000(4) 100%(4) US$150,000,000(4) US$12,135(5)
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(1) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457 under the Securities Act of
1933, as amended (the "Securities Act").
(2) Subject to note (4) below, there is being registered hereunder an indeterminate number of shares of common stock (and
associated preferred stock purchase rights) of Newmont Mining Corporation (the "Company") as may be issued from time to time at
indeterminate prices, including shares issuable upon exercise of warrants.
(3) Subject to note (4) below, there is being registered hereunder an indeterminate number of warrants of the Company as may be
issued from time to time at indeterminate prices entitling the holder to purchase shares of common stock of the Company.
(4) In no event will the aggregate offering price of all securities issued from time to time under this registration statement and
the Company's Registration Statement on Form S-4 (No. 333-92029) exceed US$200,000,000 or the equivalent therof in one or more
foreign currencies, foreign currency units or composite currencies.
(5) Pursuant to Rule 429 under the Securities Act, the prospectus included in this registration statement also relates to
$50,000,000 maximum aggregate offering price of securities previously registered under the Company's Registration Statement on
Form S-4 (No. 333-92029). The registration fee with respect to the $50,000,000 maximum aggregate offering price of securities
registered under such Registration Statement was paid at the time such Registration Statement was filed. This Registration
Statement constitutes Post-Effective Amendment No. 3 to the Registration Statement on Form S-3 (Registration No. 333-92029).
The Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date
until the Registrant shall file a further amendment which specifically states that this registration statement shall thereafter
become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
PROSPECTUS
NEWMONT MINING CORPORATION
We may offer by this prospectus the following securities to the owners of
businesses, properties or assets that we may acquire:
o Common Stock and
o Warrants to purchase Common Stock.
The specific terms upon which we will issue these securities will be
determined by negotiations with the owners of the businesses, properties or
assets that we acquire.
We will not pay any underwriting discounts or commissions in connection
with issuing securities in acquisitions, although we may pay finder's fees in
specific acquisitions. Any person receiving a finder's fee may be deemed an
underwriter within the meaning of the Securities Act of 1933, as amended.
The persons who receive in acquisitions securities pursuant to this
prospectus, including shares issued upon the exercise of warrants, also may,
offer and resell from time to time those securities pursuant to this prospectus,
subject to certain conditions.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of the securities that may be offered by
this prospectus or has determined that this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
This prospectus is dated
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TABLE OF CONTENTS
ABOUT THIS PROSPECTUS......................................................... 1
NEWMONT MINING CORPORATION.....................................................1
RISK FACTORS...................................................................1
ACQUISITION TERMS..............................................................9
DESCRIPTION OF OUR CAPITAL STOCK..............................................10
DESCRIPTION OF COMMON STOCK WARRANTS..........................................20
UNITED STATES FEDERAL INCOME TAXATION........................................ 22
SELLING SECURITY HOLDERS......................................................26
LEGAL OPINION.................................................................26
EXPERTS.......................................................................26
WHERE YOU CAN FIND MORE INFORMATION...........................................27
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC utilizing a "shelf" registration process. The shelf process allows us to
sell or otherwise offer any combination of the securities described in this
prospectus at one or more times. All references to "dollars" or "$" in this
prospectus refer to United States currency unless otherwise specified.
This prospectus provides you with a general description of the securities
we may offer. Each time we offer securities, we will provide a prospectus
supplement with specific information about the terms of the securities. The
prospectus supplement may also update or change information contained in this
prospectus. You should read this prospectus and any prospectus supplement
together with the additional information described under the heading "Where You
Can Find More Information".
NEWMONT MINING CORPORATION
Background
Newmont Mining Corporation's original predecessor corporation was
incorporated in 1921 under the laws of Delaware. On February 13, 2002, at a
special meeting of the stockholders of Newmont Mining Corporation, the
stockholders approved adoption of an Agreement and Plan of Merger that provided
for a restructuring of Newmont Mining Corporation to facilitate the February
2002 acquisitions described below and to create a more flexible corporate
structure. Newmont Mining Corporation merged with an indirect, wholly-owned
subsidiary, which resulted in Newmont Mining Corporation becoming a direct
wholly-owned subsidiary of a new holding company. Newmont Mining Corporation was
renamed Newmont USA Limited and the new holding company was renamed Newmont
Mining Corporation. There was no impact to the consolidated financial statements
of Newmont Mining Corporation as a result of this restructuring and former
stockholders of Newmont Mining Corporation became stockholders of the new
holding company. In this prospectus, "Newmont Mining," "we," "our" and "us"
refer to Newmont Mining Corporation and/ or our affiliates and subsidiaries.
We are engaged in the production of gold, the exploration for gold and the
acquisition and development of gold properties worldwide. We produce gold from
operations in North America, South America, Australia, New Zealand, Indonesia,
Uzbekistan and Turkey. We are also engaged in the production of, and exploration
for, silver, copper and zinc.
Our principal executive offices are located at 1700 Lincoln Street, Denver,
Colorado 80203. Our telephone number is (303) 863-7414.
RISK FACTORS
Investment in our securities is subject to risks and uncertainties.
Every investor or potential investor in Newmont should carefully consider
the risks that are set forth below, which have been separated into two groups:
o risks related to the gold mining industry generally; and
o risks related to our operations.
Other risks may be subsequently identified and the risk factors set forth
below may be modified or updated in documents that we file subsequent to the
date of this prospectus with the SEC which are incorporated by reference into
this prospectus, as described in "Where You Can Find More Information" or in a
prospectus supplement, if any to this prospectus.
Risks Related to the Gold Mining Industry Generally
A Substantial or Extended Decline in Gold Prices Would Have a Material
Adverse Effect on Newmont
Our business is extremely dependent on the price of gold, which is affected
by numerous factors beyond our control. Factors tending to put downward pressure
on the price of gold include:
o sales or leasing of gold by governments and central banks;
o a low rate of inflation and a strong U.S. dollar;
o global and regional recession or reduced economic activity;
o speculative trading;
o decreased perception of geopolitical or economic risk;
o decreased demand for gold for industrial uses, use in jewelry, and
investment;
o high supply of gold from production, disinvestment, and scrap and
hedging;
o sales by gold producers in forward transactions and other hedging
transactions; and
o devaluing local currencies (relative to gold priced in U.S. dollars)
leading to lower production costs and higher production in certain
major gold-producing regions.
Any drop in the price of gold adversely impacts our revenues, profits and
cash flows, particularly in light of our "no-hedging" philosophy. We have
recorded asset writedowns in recent years as a result of a sustained period of
low gold prices. We may experience additional asset impairments as a result of
low gold prices in the future.
In addition, sustained low gold prices can:
o reduce revenues further by production cutbacks due to cessation of the
mining of deposits or portions of deposits that have become uneconomic
at the then-prevailing gold price;
o halt or delay the development of new projects;
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o reduce funds available for exploration, with the result that depleted
reserves are not replaced; and
o reduce existing reserves, by removing ores from reserves that cannot
be economically mined or treated at prevailing prices.
Also see the discussion of "Gold Price" in Item 1, "Business" in our Annual
Report on Form 10-K for our most recently completed fiscal year.
Gold Producers Must Continually Obtain Additional Reserves
Gold producers must continually replace gold reserves depleted by
production. Depleted reserves must be replaced by expanding known ore bodies or
by locating new deposits in order for gold producers to maintain production
levels over the long term. Gold exploration is highly speculative in nature,
involves many risks and frequently is unproductive. No assurances can be given
that any of our new or ongoing exploration programs will result in new mineral
producing operations. Once mineralization is discovered, it may take many years
from the initial phases of drilling until production is possible, during which
time the economic feasibility of production may change. As a result, reserves
may decline as gold is produced if they are not adequately replaced.
Estimates of Proven and Probable Reserves are Uncertain
Estimates of proven and probable reserves are subject to considerable
uncertainty. Such estimates are, to a large extent, based on interpretations of
geologic data obtained from drill holes and other sampling techniques. Gold
producers use feasibility studies to derive estimates of cash operating costs
based upon anticipated tonnage and grades of ore to be mined and processed, the
predicted configuration of the ore body, expected recovery rates of metals from
the ore, comparable facility, equipment, and operating costs, and other factors.
Actual cash operating costs and economic returns on projects may differ
significantly from original estimates. Further, it may take many years from the
initial phase of drilling before production is possible and, during that time,
the economic feasibility of exploiting a discovery may change.
Increased Costs Could Affect Profitability
The total cash costs at any particular mining location are frequently
subject to great variation from one year to the next due to a number of factors,
such as changing ore grade, metallurgy and mining activities in response to the
physical shape and location of the ore body. In addition, cash costs are
affected by the price of commodities such as fuel and electricity. Such
commodities are at times subject to volatile price movements, including
increases that could make production at certain operations less profitable. A
material increase in costs at any one location could have a significant effect
on our profitability.
Mining Accidents or Other Adverse Events at a Mining Location Could Reduce
Our Production Levels
At any of our operations, production may fall below historic or estimated
levels as a result of mining accidents such as a pit wall failure in an open pit
mine, or cave-ins or flooding at underground mines. In addition, production may
be unexpectedly reduced at a location if, during the course of mining,
unfavorable ground conditions or seismic activity are encountered; ore
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grades are lower than expected; the physical or metallurgical characteristics of
the ore are less amenable to mining or treatment than expected; or our
equipment, processes or facilities fail to operate properly or as expected.
The Use of Hedging Instruments May Prevent Gains Being Realized from
Subsequent Price Increases
Consistent with our "no-hedging" philosophy, we do not intend to enter into
new material gold hedging positions and we intend to decrease our hedge
positions over time by opportunistically delivering gold into our existing hedge
contracts, and by seeking to unwind our hedge positions when economically
attractive. Nonetheless, we currently have gold hedging positions. If the gold
price rises above the price at which future production has been committed under
these hedge instruments, we will have an opportunity loss. However, if the gold
price falls below that committed price, our revenues will be protected to the
extent of such committed production. In addition, we may experience losses if a
hedge counterparty defaults under a contract when the contract price exceeds the
gold price.
For a more detailed description of our hedge positions, see the discussion
in "Hedging" in Item 7A, "Quantitative and Qualitative Disclosures About Market
Risks" in our Annual Report on Form 10-K for our most recently completed fiscal
year.
Currency Fluctuations May Affect the Costs that Newmont Incurs
Currency fluctuations may affect the costs that we incur at our operations.
Gold is sold throughout the world based principally on the U.S. dollar price,
but a portion of our operating expenses are incurred in local currencies. The
appreciation of non-U.S. dollar currencies against the U.S. dollar can increase
the costs of gold production in U.S. dollar terms at mines located outside the
United States, making such mines less profitable. The currencies which primarily
impact our results of operations are the Canadian and Australian dollars.
For a more detailed description of how currency exchange rates may affect
costs and for a recent discussion of specific currency fluctuations, see the
discussion in "Foreign Currency Exchange Rates" in Item 7, "Management's
Discussion and Analysis of Consolidated Financial Condition and Results of
Operations" in our Annual Report on Form 10-K for our most recently completed
fiscal year.
Gold Mining Companies are Subject to Extensive Environmental Laws and
Regulations
Our exploration, mining and processing operations are regulated in all
countries in which we operate under various federal, state, provincial and local
laws and regulations relating to the protection of the environment, which
generally include air and water quality, hazardous waste management and
reclamation. Furthermore, these laws and regulations are continually changing
and are generally becoming more restrictive. We have made, and expect to make in
the future, expenditures to comply with such laws and regulations, but we cannot
predict the amount of such future expenditures. Estimated future reclamation
costs are based principally on legal and regulatory requirements. The regulatory
environment in which we operate could change in ways that would substantially
increase our costs to achieve compliance. Delays in obtaining or failure to
obtain government permits and approvals or significant changes in regulation
could have a material adverse effect on our operations or financial position.
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In addition, we are involved in several matters concerning environmental
obligations associated with former mining activities. Generally, these matters
concern developing and implementing remediation plans at the various sites
involved. We cannot predict the ultimate resolution of these matters and we may
not have sufficient reserves to cover any liabilities.
For additional information on our potential environmental liabilities, see
the notes to our Consolidated Financial Statements contained in our in our
Annual Report on Form 10-K for our most recently completed fiscal year and any
subsequent Quarterly Report on Form 10-Q for our most recently completed fiscal
quarter.
Risks Related to Newmont Operations
Certain Factors Outside of Our Control May Affect Our Ability to Support
the Carrying Value of Goodwill
At December 31, 2002, the carrying value of our goodwill was approximately
$3.0 billion or 30% of our total assets. Such goodwill has been assigned to our
Merchant Banking Segment ($1.6 billion) and Exploration Segment ($1.1 billion),
and to various mine site reporting units ($300 million in the aggregate). As
further described in our Annual Report on Form 10-K for our most recently
completed fiscal year under "Critical Accounting Policies" in Item 7,
"Management's Discussion and Analysis of Consolidated Financial Condition and
Results of Operations" and in Note 3 to the Consolidated Financial Statements,
this goodwill arose in connection with our February 15, 2002 acquisition of
Normandy Mining Limited and Franco-Nevada Mining Corporation Limited, and it
represents the excess of the aggregate purchase price over the fair value of the
identifiable net assets of Normandy Mining Limited and Franco-Nevada Mining
Corporation Limited as measured at February 15, 2002. Such goodwill was assigned
to reporting units based on independent appraisals performed by Behre Dolbear &
Company, Inc., a mineral industry consulting firm. We evaluate, on at least an
annual basis, the carrying amount of goodwill to determine whether current
events and circumstances indicate that such carrying amount may no longer be
recoverable. This evaluation involves a comparison of the fair value of our
reporting units to their carrying values. The fair values of the applicable
reporting units are based in part on certain factors that may be partially or
completely outside of our control, such as the investing environment, the
discovery of proven and probable reserves, commodity prices and other factors.
In addition, we may not be able to easily replicate some of the assumptions
underlying the Merchant Banking and Exploration Segment February 15, 2002
appraisals, even though these assumptions were based on historical experience
and we consider these assumptions to be reasonable under the circumstances. With
respect to the Merchant Banking Segment, these assumptions included (1) an
initial investment of $300 million; (2) additional annual investments of $50
million commencing in year two (2003) of a seven-year time horizon; (3) an
average long-term after-tax return of 37.3%; (4) the immediate reinvestment of
average annual returns; and (5) discount rates ranging from 8% to 9%. With
respect to the Exploration Segment, these assumptions included (1) 1.6 million
recoverable ounces of additions to proven and probable reserves through new
discoveries in the first year following the acquisition; (2) an annual growth
rate for such reserve additions of 23.1% over a ten-year period; (3) a fair
value for each recoverable ounce of reserve additions of approximately $58; and
(4) a discount rate of 15%.
Our assumptions set forth above are subject to risks and uncertainties. In
the absence of any mitigating valuation factors, our failure to achieve one or
more of the February 15, 2002
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appraisal assumptions will over time result in an impairment charge.
Accordingly, we cannot give you any assurance that significant non-cash
impairment losses will not be recorded in the future due to possible declines in
the fair values of our reporting units. For a more detailed description of the
estimates, assumptions and related risks involved in assessing the
recoverability of the carrying value of goodwill, see the discussion under
"Critical Accounting Policies" in Item 7, "Management's Discussion and Analysis
of Consolidated Financial Condition and Results of Operations" in our Annual
Report on Form 10-K for our most recently completed fiscal year.
Our Level of Indebtedness May Affect Our Business
As a result of our acquisitions, our level of indebtedness has increased,
although net indebtedness is a smaller percentage of our total capitalization
than it was prior to the acquisitions. As of September 30, 2003, our debt was
$1.4 billion. This level of indebtedness could have important consequences for
our operations, including:
o We may need to use a large portion of our cash flow to repay principal
and pay interest on our debt, which will reduce the amount of funds
available to finance our operations and other business activities;
o Our debt level may make us vulnerable to economic downturns and
adverse developments in our businesses and markets; and
o Our debt level may limit our ability to pursue other business
opportunities, borrow money for operations or capital expenditures in
the future or implement our business strategy.
We expect to obtain the funds to pay our expenses and to pay principal and
interest on our debt by utilizing cash flow from operations. Our ability to meet
these payment obligations will depend on our future financial performance, which
will be affected by financial, business, economic and other factors. We will not
be able to control many of these factors, such as economic conditions in the
markets in which we operate. We cannot be certain that our future cash flow from
operations will be sufficient to allow us to pay principal and interest on our
debt and meet our other obligations. If cash flow from operations is
insufficient, we may be required to refinance all or part of our existing debt,
sell assets, borrow more money or issue additional equity. We cannot be sure
that we will be able to do so on commercially reasonable terms, if at all.
Our Operations Outside North America and Australia are Subject to the Risks
of Doing Business Abroad
Exploration, development and production activities outside of North America
and Australia are potentially subject to political and economic risks,
including:
o cancellation or renegotiation of contracts;
o disadvantages of competing against companies from countries that are
not subject to U.S. laws and regulations, including the Foreign
Corrupt Practices Act;
o changes in foreign laws or regulations;
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o changes in tax laws;
o royalty and tax increases or claims by governmental entities,
including retroactive claims;
o expropriation or nationalization of property;
o currency fluctuations (particularly in countries with high inflation);
o foreign exchange controls;
o restrictions on the ability of local operating companies to sell gold
offshore for U.S. dollars, and on the ability of such companies to
hold U.S. dollars or other foreign currencies in offshore bank
accounts;
o import and export regulations, including restrictions on the export of
gold;
o restrictions on the ability to pay dividends offshore;
o environmental controls;
o risks of loss due to civil strife, acts of war, guerrilla activities,
insurrection and terrorism; and
o other risks arising out of foreign sovereignty over the areas in which
our operations are conducted.
Consequently, our exploration, development, and production activities
outside of North America and Australia may be substantially affected by factors
beyond our control, any of which could materially adversely affect our financial
position or results of operations. Furthermore, in the event of a dispute
arising from such activities, we may be subject to the exclusive jurisdiction of
courts outside North America or Australia or may not be successful in subjecting
persons to the jurisdiction of the courts in North America or Australia, which
could adversely affect the outcome of a dispute.
We have substantial investments in Indonesia, a nation that since 1997 has
undergone financial crises and devaluation of its currency, outbreaks of
political and religious violence, changes in national leadership, and the
secession of East Timor, one of its former provinces. Despite democratic
elections in 1999, a change in government occurred in late July 2001, and civil
unrest, independence movements, and tensions between the civilian government and
the military continue. These problems heighten the risk of abrupt changes in the
national policy toward foreign investors, which in turn could result in
unilateral modification of concessions or contracts, increased taxation, or
expropriation of assets. If this were to occur with respect to our Contracts of
Work, our financial condition and results of operations could be materially
adversely affected.
During the last two years, Minera Yanacocha, of which we own a 51.35%
interest, has been the target of numerous local political protests, including
ones that blocked the road between the Yanacocha mine complex and the city of
Cajamarca in Peru. We cannot predict whether these incidents will continue, nor
can we predict the government's continuing positions on foreign investment,
mining concessions, land tenure, environmental regulation or taxation. The
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continuation or intensification of protests or a change in prior governmental
positions could adversely affect our operations in Peru.
Recent violence reportedly committed by radical elements in Indonesia and
other countries, and the presence of U.S. forces in Iraq and Afghanistan may
increase the risk that operations owned by U.S. companies will be the target of
further violence. If any of our operations were so targeted, it could have an
adverse effect on our business.
Remediation Costs for Federal Superfund Law Liabilities May Exceed the
Provisions We Have Made
We have conducted extensive work at two inactive sites in the United
States. At one of these sites, remediation requirements have not been finally
determined, and, therefore, the final cost cannot be estimated. At a third site
in the United States, an inactive uranium mine and mill formerly operated by one
of our subsidiaries, remediation work at the mill is ongoing, but remediation at
the mine is subject to dispute and has not yet commenced. The environmental
standards that may ultimately be imposed at this site as a whole remain
uncertain and there is a risk that the costs of remediation may exceed the
provision our subsidiary has made for such remediation by a material amount.
Whenever a previously unrecognized remediation liability becomes known or a
previously estimated cost is increased, the amount of that liability or
additional cost is expensed and this can materially reduce net income in that
period.
Occurrence of Events for Which We are Not Insured May Affect Our Cash Flow
and Overall Profitability
We maintain insurance to protect ourselves against certain risks related to
our operations. This insurance is maintained in amounts that we believe to be
reasonable depending upon the circumstances surrounding each identified risk.
However, we may elect not to have insurance for certain risks because of the
high premiums associated with insuring those risks or for various other reasons;
in other cases, insurance may not be available for certain risks. Some concern
always exists with respect to investments in parts of the world where civil
unrest, war, nationalist movements, political violence or economic crisis are
possible. These countries may also pose heightened risks of expropriation of
assets, business interruption, increased taxation and a unilateral modification
of concessions and contracts. We do not maintain insurance against political
risk. Occurrence of events for which we are not insured may affect our cash flow
and overall profitability.
Our Business Depends on Good Relations with Our Employees
We may experience difficulties in integrating labor policies, practices,
and strategies with our acquired subsidiaries. In addition, problems with or
changes affecting employees of one subsidiary may affect relations with
employees of other subsidiaries.
At December 31, 2002, unions represented approximately 37% of our worldwide
work force. On that date, we had 958 employees at our Carlin, Nevada operations,
244 employees in Canada at our Golden Giant operation, 3,446 employees in
Indonesia at our Batu Hijau operations, 47 employees in New Zealand at our
Martha operation, 351 employees in Bolivia at our Kori Kollo operation, and 494
employees in Australia at our Golden Grove, Pajingo, Tanami
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and Yandal operations combined, working under a collective bargaining agreement
or similar labor agreement.
Our Earnings also Could be Affected by the Prices for Other Commodities
Our revenues and earnings also could be affected by the prices of other
commodities such as copper and zinc, although to a lesser extent than by the
price of gold. The prices of copper and zinc are affected by numerous factors
beyond our control. For more information, see the discussion under "Copper and
Zinc" in Item 1, "Business" and the discussion under Item 2, "Properties" in our
Annual Report on Form 10-K for our most recently completed fiscal year.
Title to Some of Our Properties May Be Defective or Challenged
Although we have conducted title reviews of our properties, title review
does not necessarily preclude third parties from challenging our title. While we
believe that we have satisfactory title to our properties, some risk exists that
some titles may be defective or subject to challenge. In addition, some of our
Australian properties could be subject to native title or traditional landowner
claims, but these claims would not deprive us of the properties. For information
regarding native title or traditional landowner claims, see the discussion under
the Australia section of Item 2, "Properties" in our Annual Report on Form 10-K
for our most recently completed fiscal year.
We Compete With Other Mining Companies
We compete with other mining companies to attract and retain key executives
and other employees with technical skills and experience in the mining industry.
We also compete with other mining companies for rights to mine properties
containing gold and other minerals. There can be no assurance that we will
continue to attract and retain skilled and experience employees, or to acquire
additional rights to mine properties.
Our Anti-Takeover Provisions Could Limit Amounts Offered in a Takeover
Article Ninth of our certificate of incorporation and our rights agreement
may make it more difficult for various corporations, entities or persons to
acquire control of us or to remove management. Article Ninth of our certificate
of incorporation requires us to obtain the approval of holders of 80% of all
classes of our capital stock who are entitled to vote in the election of
directors, voting together as one class, to enter into certain types of
transactions generally associated with takeovers, unless our Board of Directors
approves the transaction before the other corporation, entity or person acquires
10% or more of our outstanding shares. In addition, the Board has declared a
dividend of one preferred share purchase right for each outstanding share of our
common stock under a rights agreement, dated as of February 13, 2002, between
Newmont Mining and Mellon Investor Services LLC, as the rights agent. The rights
agreement, in effect, imposes a significant penalty upon any person or group
that acquires 15% or more of our outstanding common stock without the approval
of the Board. While the anti-takeover provisions protect stockholders from
coercive or otherwise unfair takeover tactics, they may also limit the premium
over market price available to holders of common stock in a takeover situation.
ACQUISITION TERMS
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We may offer and issue shares of our common stock and warrants to purchase
shares of common stock from time to time in connection with direct and indirect
acquisitions of other businesses, properties or assets. We will furnish this
prospectus to the security holders or owners of the businesses, properties or
assets we are acquiring in exchange for the shares and warrants we offer by this
prospectus.
We expect that the terms upon which we issue the shares and warrants will
be determined through negotiations with the security holders or principal owners
of the businesses, properties or assets that we are acquiring. We expect that
the value of shares of common stock that we issue in an acquisition will be
reasonably related to the market price for our common stock prevailing at or
near the time we enter into the relevant acquisition agreement or complete the
acquisition.
We will pay all expenses of the offering of shares and warrants by this
prospectus. We will not pay any underwriting discounts or commissions in
connection with the issuance of these securities, although we may pay finder's
fees with respect to specific acquisitions. Any person receiving a finder's fee
may be deemed to be an "underwriter" within the meaning of the Securities Act.
We will use this prospectus in connection with the issuance of our shares
of common stock and warrants in those acquisitions that would be exempt from
registration except for the possibility of integration with other transactions.
We may also provide a prospectus supplement with specific information about the
terms of the acquisitions and the securities being issued. If an acquisition
would not be exempt from registration, we will furnish those offerees this
prospectus, as amended by a post-effective amendment to the registration
statement on Form S-4 of which this prospectus is a part.
If we complete an acquisition or series of acquisitions since the date of
our most recently audited financial statements that would have a material
financial effect on us, we will file a Current Report on Form 8-K or amendment
to the registration statement in which this prospectus was filed with the SEC
containing the financial and other information about the acquisitions that would
be material to subsequent purchasers of the securities we offer through this
prospectus.
The securities we issue in acquisitions may be subject to restrictions on
resale imposed by Rules 144 and 145 under the Securities Act. In addition, we
may impose contractual holding period requirements on the persons acquiring our
securities in acquisitions.
DESCRIPTION OF OUR CAPITAL STOCK
The rights of our stockholders will be governed by Delaware law, our
certificate of incorporation and our by-laws. The following is a summary of the
material terms of our capital stock. For additional information regarding our
capital stock, please refer to the applicable provisions of Delaware law, our
certificate of incorporation and by-laws and the rights agreement, dated as of
February 13, 2002, between us and Mellon Investor Services LLC, as rights agent,
relating to rights to purchase shares of our series A junior participating
preferred stock. Copies of our certificate of incorporation, our by-laws and our
rights agreement are exhibits to the registration statement of which this
prospectus is a part.
As of January 12, 2004, we had 755,000,000 shares of authorized capital
stock. Those shares consisted of:
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o 5,000,000 shares of preferred stock, par value $5.00 per share, of
which one share of special voting stock was outstanding; and
o 750,000,000 shares of common stock, par value $1.60 per share, of
which (1) 398,829,809 shares were outstanding, including shares
evidenced by Australian CHESS depositary interests which represent
beneficial ownership of shares of common stock of Newmont Mining on a
ten-for-one basis and (2) 42,795,478 shares were issuable upon
conversion of the exchangeable shares of Newmont Mining Corporation of
Canada Limited ("Newmont Canada"), have economic rights equivalent to
those of our common stock and are exchangeable on a one-for-one basis
with shares of our common stock.
The holder of the outstanding share of special voting stock exercises the
voting and other rights attached to the share as trustee for and on behalf of
the registered holders of outstanding shares of the exchangeable shares.
Common Stock
The following is a summary of the terms of our common stock. For additional
information regarding our common stock, please refer to our certificate of
incorporation, our by-laws and the applicable provisions of Delaware law.
Dividend Rights
Holders of our common stock may receive dividends when, as and if declared
by our Board out of funds of Newmont Mining legally available for the payment of
dividends. Subject to the terms of any outstanding preferred stock, holders of
our common stock may not receive dividends until we have satisfied our
obligations to any holders of our preferred stock.
As a Delaware corporation, we may pay dividends out of surplus or, if there
is no surplus, out of net profits for the fiscal year in which a dividend is
declared and/or the preceding fiscal year. Section 170 of the Delaware General
Corporation Law also provides that dividends may not be paid out of net profits
if, after the payment of the dividend, capital is less than the capital
represented by the outstanding stock of all classes having a preference upon the
distribution of assets.
Currently, we pay dividends on our common stock each quarter. The
determination of the amount and timing of future dividends will be made by our
Board of Directors from time to time and will depend on our future earnings,
capital requirements, financial conditions and other relevant factors.
Voting and Other Rights
Holders of our common stock are entitled to one vote per share and, in
general, a majority of votes cast with respect to a matter will be sufficient to
authorize action upon routine matters.
Holders of shares of our special voting share are entitled to vote, as
a single class, together with the holders of shares of our common stock on all
matters on which our stockholders are entitled to vote. The holders of record of
a majority of the outstanding shares of our capital stock entitled to vote at
the meeting of our stockholders must be present in person or represented by
proxy at the meeting in order to constitute a quorum for all matters to come
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before the meeting. For purposes of determining the presence of a quorum,
"shares of our capital stock" includes shares of our common stock (including
shares represented by Australian CHESS depositary interests), as well as the
maximum number of shares of our common stock that the holder of the special
voting share is entitled to vote at the meeting on behalf of the holders of the
outstanding exchangeable shares. For additional information regarding our
special voting share, please see the discussion in "-- Special Voting Stock"
beginning on page 16 of this prospectus.
Special meetings of our stockholders may be called by our Board of
Directors or by the Chairman of the Board or by our President, and will be
called by the Chairman of the Board or by our President or Secretary upon a
written request stating the purposes of the proposed meeting and signed by a
majority of our Board of Directors or stockholders owning at least 25% of our
outstanding capital stock entitled to vote at the meeting.
Written notice of a meeting of our stockholders is given personally or by
mail, not less than 10 days nor more than 60 days before the date on which the
meeting is held, to each stockholder of record entitled to vote at the meeting.
The notice must state the time, place and purposes of the meeting. In the event
of a special meeting called upon the written request of our stockholders, the
notice will describe any business set forth in the statement of purpose in the
written stockholder request, as well as any additional business that our Board
of Directors proposes to be conducted at the meeting. If mailed, the notice will
be sent to our stockholders at their respective addresses appearing on our stock
records or to such other addresses as they may designate in writing, and will be
deemed given when mailed. A waiver of any notice, signed by a stockholder before
or after the time for the meeting, will be deemed equivalent to that stockholder
having received the notice.
Our Board of Directors is not classified. Directors are to be elected by a
plurality of those shares of our capital stock present and entitled to vote at a
meeting of stockholders, and our stockholders do not have the right to cumulate
their votes in the election of directors.
Liquidation
In the event of any liquidation, dissolution or winding up of Newmont
Mining, holders of our common stock would be entitled to receive proportionately
any assets legally available for distribution to our stockholders with respect
to shares held by them, subject to any prior rights of the holders of any of our
preferred stock then outstanding. Immediately prior to any liquidation,
dissolution or winding up of Newmont Mining, all holders of exchangeable shares
would become holders of our common stock pursuant to the terms of the
exchangeable shares and would therefore be entitled to share ratably in any
distribution to other holders of common stock.
Redemption
Newmont Mining common stock is not redeemable or convertible.
Preferred Share Purchase Rights
Each issued share of our common stock includes a preferred stock purchase
right. See "Anti-Takeover Provisions - Stockholders Rights Plan" below.
Other Provisions
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All of the issued and outstanding shares of our common stock are validly
issued, fully paid and nonassessable. Holders of our common stock have no
preemptive rights with respect to any securities of Newmont Mining.
Listing
Our common stock trades on the New York Stock Exchange under the symbol
"NEM." ChaseMellon Stockholder Services, L.L.C. is the registrar, transfer
agent, conversion agent and dividend disbursing agent for the common stock.
Our common stock also trades in the form of Australian CHESS depositary
interests on the Australian Stock Exchange under the symbol "NEM".
Newmont Mining CDIs
The Newmont Mining Australian CHESS depositary interests (the "CDIs") are
units of beneficial ownership in our common stock held by CHESS Depositary
Nominees Pty Ltd. (ACN 071346506) ("CDN"), a wholly owned subsidiary of the
Australian Stock Exchange Limited (ACN 008624691). The Newmont Mining CDIs
entitle holders to dividends and other rights economically equivalent to our
common stock on a ten-for-one basis, including the right to attend Newmont
Mining stockholders' meeting. The Newmont Mining CDIs are convertible at the
option of the holders into our common stock on a ten-for-one basis. CDN, as the
stockholder of record, will vote the underlying shares of our common stock in
accordance with the directions of the CDI holders.
Preferred Stock - General
Our preferred stock is issuable in series. Our board of directors has the
power to fix various terms for each series of preferred stock, including the
following:
o voting powers,
o designations,
o preferences,
o the relative participating and option or other rights,
o qualifications, and
o limitations and restrictions.
Special Voting Stock
The following is a summary of our special voting stock, which consists of a
share of preferred stock with special voting rights. For additional information
regarding our special voting stock, please refer to the certificate of
designations setting forth the terms of the special voting stock. The
certificate of designations is an exhibit to the registration statement of which
this prospectus is a part.
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Computershare Trust Company of Canada, as trustee under a voting and
exchange trust agreement, holds the outstanding share of special voting stock.
The holder of the special voting share exercises the voting and other rights
attached to the share as trustee for and on behalf of the registered holders of
the exchangeable shares of our wholly-owned subsidiary, Newmont Canada. The
exchangeable shares have economic rights equivalent to those of our common stock
and are exchangeable on a one-for-one basis with shares of our common stock.
Upon the unanimous approval of Newmont Mining's board of directors, Newmont
Canada may from time to time issue additional exchangeable shares. The following
is a summary description of the material provisions of the rights, privileges,
restrictions and conditions attaching to the special voting share and the
related exchangeable shares as they affect Newmont Mining.
Ranking
With respect to distributions of assets upon liquidation, dissolution or
winding up of Newmont Mining, the special voting share ranks (1) senior to our
common stock, (2) on parity with our other preferred stock and (3) junior to any
other class or series of capital stock of Newmont Mining.
Dividend Rights
The special voting share is not entitled to receive dividends.
Holders of exchangeable shares are entitled to receive dividends from
Newmont Canada which are equivalent to any declared by our Board of Directors on
our common stock. These dividends will be paid out of money, assets or property
of Newmont Canada properly applicable to the payment of dividends, or out of
authorized but unissued shares of Newmont Canada, as applicable. Holders of
exchangeable shares are not entitled to any dividends other than or in excess of
the foregoing dividends. The record date for the determination of the holders of
exchangeable shares entitled to receive payment of, and the payment date for,
any dividend declared on the exchangeable shares will be the same dates as the
record date and payment date, respectively, for the corresponding dividend
declared on shares of our common stock.
Voting Rights
Holders of exchangeable shares are not holders of our common stock and,
therefore, do not have the direct right to vote on matters relating to Newmont
Mining on which our stockholders are entitled to vote.
The holder of the special voting share has the right to vote together with
the holders of our common stock on all matters on which holders of our common
stock are entitled to vote. The holder of the special voting share is entitled
to cast a number of votes equal to the lesser of (1) the number of exchangeable
shares outstanding from time to time (except those exchangeable shares held by
us or our affiliates) and (2) 10% of the total number of votes attached to the
shares of our common stock then outstanding. The holder of the special voting
share will exercise the voting and others rights attached to the share only on
the basis of instructions received from holders of exchangeable shares, as
trustee for and on behalf of the registered holders of the exchangeable shares.
Certain Restrictions
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So long as any of the exchangeable shares not owned by us or our affiliates
are outstanding:
(1) without the approval of the holders of the exchangeable shares and
Newmont Canada (unless in each case the economic equivalent is simultaneously
issued, distributed or made, as the case may be, to the holders of exchangeable
shares), we will not:
o issue or distribute shares of our common stock, or securities
exchangeable for or convertible into or carrying rights to
acquire shares of our common stock, to the holders of all or
substantially all of the then outstanding shares of our common
stock by way of stock dividend or other distribution, other than
an issue of shares of our common stock, or securities
exchangeable for or convertible into or carrying rights to
acquire shares of our common stock, to holders of shares of our
common stock (a) who exercise an option to receive dividends in
shares of our common stock or securities exchangeable for or
convertible into or carrying rights to acquire shares of our
common stock, in lieu of receiving cash dividends, or (b)
pursuant to any dividend reinvestment plan or similar
arrangement;
o issue or distribute rights, options or warrants to the holders of
all or substantially all of the then outstanding shares of our
common stock entitling them to subscribe for or to purchase
shares of our common stock, or securities exchangeable for or
convertible into or carrying rights to acquire shares of our
common stock;
o issue or distribute to the holders of all or substantially all of
our then outstanding shares of common stock (a) shares or
securities (including evidences of indebtedness) of Newmont
Mining of any class (other than shares of our common stock or
securities convertible into or exchangeable for or carrying
rights to acquire shares of our common stock), or (b) rights,
options, warrants or other assets other than those referred to
above;
o subdivide, redivide or change our then outstanding shares of
common stock into a greater number of shares of our common stock;
o reduce, combine, consolidate or change our then outstanding
shares of common stock into a lesser number of shares of our
common stock; or
o reclassify or otherwise change shares of our common stock or
effect an amalgamation, merger, reorganization or other
transaction affecting shares of our common stock.
(2) in the event that a tender offer, share exchange offer, issuer bid,
takeover bid or similar transaction with respect to shares of our common stock
is proposed by us or is proposed to us or our stockholders and is recommended by
our Board, or is otherwise effected or to be effected with the consent or
approval of the our Board, and the exchangeable shares are not redeemed by
Newmont Canada or purchased by us (or our wholly-owned subsidiary, Newmont
Holdings ULC), we will expeditiously and in good faith take all actions and do
all things as are reasonably necessary or desirable to enable and permit holders
of exchangeable shares (other than us and our affiliates) to participate in the
transaction to the same extent and on an economically equivalent basis as the
holders of shares of our common stock, without
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discrimination. Without limiting the generality of the foregoing, we will take
all actions and do all things as are reasonably necessary or desirable to ensure
that holders of exchangeable shares may participate in each similar transaction
without being required to retract exchangeable shares as against Newmont Canada
or, if so required, to ensure that any retraction, shall be effective only upon,
and shall be conditional upon, the closing of that transaction and only to the
extent necessary to participate in the transaction.
Liquidation Rights
In the event of the liquidation, dissolution or winding-up of Newmont
Mining, (1) the holder of the special voting share will be entitled to receive
an amount equal to $0.001 and (2) all of the exchangeable shares will
automatically be exchanged for shares of our common stock. We will purchase each
exchangeable share on the fifth business date prior to the liquidation,
dissolution or winding up for a purchase price per share to be satisfied by the
delivery of one share of our common stock, together with all declared and unpaid
dividends on the exchangeable shares, if any.
In the event of the liquidation, dissolution or winding-up of Newmont
Canada, we (or Newmont Holdings ULC) have the right to purchase all, but not
less than all, of the outstanding exchangeable shares from the holders thereof
upon payment of a liquidation amount. The liquidation amount will be the amount
per exchangeable share that a holder of exchangeable shares is entitled to
receive pursuant to the provisions attached to the exchangeable shares on the
liquidation, dissolution or winding-up of Newmont Canada, to be satisfied by the
delivery of one share of our common stock, together with all declared and unpaid
dividends on the exchangeable shares, if any.
Redemption and Retraction
The special voting share is not redeemable or convertible, except, if
no exchangeable shares, other than exchangeable shares held by us or our
affiliates, or securities which could give rise to the issuance of any
exchangeable shares to any person are outstanding, the special voting share will
automatically be redeemed for $0.001.
Holders of exchangeable shares are entitled at any time, upon delivery of a
certificate representing their exchangeable shares and a duly executed
retraction request, to require Newmont Canada to redeem their exchangeable
shares. The retraction price will be the amount per exchangeable share that a
holder of exchangeable shares is entitled to receive pursuant to the provisions
attached to the exchangeable shares on a retraction of an exchangeable share, to
be satisfied by the delivery of one share of our common stock, together with all
declared and unpaid dividends on the exchangeable shares, if any. Newmont Canada
must deliver all retraction requests to us (or Newmont Holdings ULC), whereupon
we (or Newmont Holdings ULC), instead of Newmont Canada, will have the right to
purchase for the retraction price the exchangeable shares that are the subject
of the request. If we do not exercise this right, Newmont Canada is required to
effect the redemption.
On or at any time after the seventh anniversary of the date on which the
exchangeable shares were first issued, subject to acceleration in some
circumstances, Newmont Canada is required to redeem all the outstanding
exchangeable shares. The redemption price will be the amount per exchangeable
share that a holder of exchangeable shares is entitled to receive
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pursuant to the provisions of the exchangeable shares on a redemption of
exchangeable shares, to be satisfied by the delivery of one share of our common
stock, together with all declared and unpaid dividends, if any. In this event,
we (or Newmont Holdings ULC) will have the overriding right to acquire the
outstanding exchangeable shares in exchange for the redemption price on the
redemption date. If we exercise this right, Newmont Canada's obligation to
redeem the exchangeable shares will terminate.
Listing
The exchangeable shares are listed on the Toronto Stock Exchange under the
symbol "NMC".
Anti-Takeover Provisions
Article Ninth of our certificate of incorporation and our rights agreement
may make it more difficult for various corporations, entities or persons to
acquire control of us or to remove management.
Approval of Various Mergers, Consolidations, Sales and Leases
Article Ninth of our certificate of incorporation requires us to get the
approval of the holders of 80% of all classes of our capital stock who are
entitled to vote in elections of directors, voting together as one class, to
enter into the following types of transactions:
o a merger or consolidation between us and another corporation that
holds 10% or more of our outstanding shares;
o the sale or lease of all or a substantial part of our assets to
another corporation or entity that holds 10% or more of our
outstanding shares; or
o any sale or lease to us of assets worth more than $10 million in
exchange for our securities by another corporation or entity that
holds 10% or more of our outstanding shares.
However, Article Ninth does not apply to any transaction if:
o our Board approves the transaction before the other corporation,
person or entity becomes a holder of 10% or more of our
outstanding shares; or
o we or our subsidiaries own a majority of the outstanding voting
shares of the other corporation.
Article Ninth can only be altered or repealed with the approval of the
holders of 80% of all classes of our capital stock who are entitled to vote in
elections of directors, voting together as one class.
Stockholders Rights Plan
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On January 30, 2002, our Board declared a dividend of one preferred share
purchase right for each outstanding share of our common stock. The dividend was
paid on February 15, 2002 to the stockholders of record on February 15, 2002.
The rights were issued pursuant to the terms of the Rights Agreement, dated as
of February 13, 2002 between Newmont Mining and Mellon Investor Services LLC, as
the rights agent.
Our Board has adopted this rights agreement to protect stockholders from
coercive or otherwise unfair takeover tactics. In general terms, it works by
imposing a significant penalty upon any person or group which acquires 15% or
more of our outstanding common stock without the approval of our Board of
Directors. The rights agreement should not interfere with any merger or other
business combination approved by our Board.
The following is a summary description of our rights agreement and should
be read together with the entire rights agreement, which is included as an
exhibit to the registration statement of which this prospectus forms a part.
The Rights. Our Board authorized the issuance of a right with respect to
each share of common stock outstanding on February 15, 2002. The rights
initially trade with, and are inseparable from, shares of our common stock. The
rights are evidenced only by certificates that represent shares of our common
stock. New rights will accompany any new shares of our common stock that we
issue after February 15, 2002 until the Distribution Date described below.
Exercise Price. Each right allows its holder to purchase from Newmont
Mining one one-thousandth of a share of Series A Junior Participating Preferred
Stock ("preferred share") for $100, once the rights become exercisable. This
portion of a preferred share will give the stockholder approximately the same
dividend, voting and liquidation rights as would one share of common stock.
Prior to exercise, the right does not give its holder any dividend, voting or
liquidation rights.
Exercisability. The rights are not exercisable until:
o 10 days after the public announcement that a person or group has
become an "Acquiring Person" by obtaining beneficial ownership of
15% or more of our outstanding common stock, or, if earlier, or
o 10 business days (or a later date determined by our Board before
any person or group becomes an Acquiring Person) after a person
or group begins a tender or exchange offer which, if completed,
would result in that person or group becoming an Acquiring
Person.
We refer to the date when the rights become exercisable as the
"Distribution Date." Until that date, the common stock certificates also
evidence the rights, and any transfer of shares of common stock constitutes a
transfer of rights. After that date, the rights will separate from the common
stock and be evidenced by book-entry credits or by rights certificates that we
will mail to all eligible holders of common stock. Any rights held by an
Acquiring Person are void and may not be exercised.
Our Board may reduce the threshold at which a person or group becomes an
Acquiring Person from 15% to not less than 10% of the outstanding common stock.
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Consequences of a Person or Group Becoming an Acquiring Person.
o Flip In. If a person or group becomes an Acquiring Person, all holders
of rights except the Acquiring Person may, for $100, purchase shares
of our common stock prior to the acquisition.
o Flip On. If we are later acquired in a merger of similar transaction
after the Distribution Date, all holders of rights except the
Acquiring Person may, for $100, purchase shares of the acquiring
corporation with a market value of $200 based on the market price of
the acquiring corporation's stock, prior to the merger.
Preferred Share Provisions. Each one one-thousandth of a preferred share, if
issued:
o will not be redeemable;
o will entitle holders to quarterly dividend payments of $0.001 per
share, or an amount equal to the dividend paid on one share of common
stock, whichever is greater;
o will entitle holders upon liquidation either to receive $1.00 per
share or an amount equal to the payment made on one share of common
stock, whichever is greater;
o will have the same voting power as one share of common stock; and
o if shares of our common stock are exchanged by merger, consolidation
or a similar transaction, will entitle holders to a per share payment
equal to the payment made on one share of common stock.
The value of one one-thousandth interest in a preferred share should
approximate the value of one share of common stock.
Expiration. The rights will expire on February 13, 2012.
Redemption. Our Board of Directors may redeem the rights for $0.001 per
right at any time before any person or group becomes an Acquiring Person. If our
Board redeems any rights, it must redeem all of the rights. Once the rights are
redeemed, the only right of the holders of rights will be to receive the
redemption price of $0.001 per right. The redemption price will be adjusted if
we have a stock split or stock dividends of our common stock.
Exchange. After a person or group becomes an Acquiring Person, but before
an Acquiring Person owns 50% or more of our outstanding common stock, our Board
may extinguish the rights by exchanging one share of common stock or an
equivalent security for each right, other than rights held by the Acquiring
Person.
Anti-Dilution Provisions. Our Board may adjust the purchase price of the
preferred shares, the number of preferred shares issuable and the number of
outstanding rights to prevent dilution that may occur from a stock dividend, a
stock split or a reclassification of the preferred shares or common stock. No
adjustments to the purchase price of less than 1% will be made.
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Amendments. The terms of the rights agreement may be amended by our Board
without the consent of the holders of the rights. However, our Board may not
amend the rights agreement to lower the threshold at which a person or group
becomes an Acquiring Person to below 10% of our outstanding common stock. In
addition, the Board may not cause a person or group to become an Acquiring
Person by lowering this threshold below the percentage interest that the person
or group already owns. After a person or group becomes an Acquiring Person, our
Board may not amend the agreement in a way that adversely affects holders of the
rights.
DESCRIPTION OF COMMON STOCK WARRANTS
We may issue warrants for the purchase of common stock. The warrants may be
issued independently or together with any securities offered by any prospectus
supplement. The warrants will be issued under one or more common stock warrant
agreements between us and a bank or trust company as common stock warrant agent.
The common stock warrant agent will be our agent and will not assume any
obligations to any owner of the warrants. The following is a summary of the
material terms of the separate common stock warrant agreements. This summary is
qualified in its entirety by reference to the form of common stock warrant
agreement, a copy of which is an exhibit to our registration statement of which
this prospectus forms a part.
General
Under the common stock warrant agreement, warrants may be issued in one or
more series. The prospectus supplement and the common stock warrant agreement
relating to any series of warrants will include specific terms about the
warrants. These terms include some of the following:
o the type and number of warrants,
o the amount of related common stock for which the warrant can be
exercised and the price or the manner of determining the price
and currency or other consideration to purchase such common
stock,
o the expiration date of each warrant,
o the exercise date of each warrant,
o the offering price and currency of each warrant,
o if applicable, the designation and terms of the securities with
which each warrant can be issued,
o any provision dealing with the date on which the warrants and
related securities will be separately transferable,
o any provision granting a mandatory or an optional redemption
provision,
o the identity of the common stock warrant agent,
o the form of the warrant certificates and
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o any other terms of the warrant.
The warrants will be represented by certificates. The warrants may be
exchanged under the terms outlined in the common stock warrant agreement. We
will not charge any service charges for any transfer or exchange of warrant
certificates, but we may require payment for tax or other governmental charges
in connection with the exchange or transfer. Until a common stock warrant is
exercised, a holder will not be entitled to any payments on or have any rights
with respect to the common stock issuable upon exercise of the common stock
warrant.
Exercise of Common Stock Warrants
To exercise warrants, the holder must provide the common stock warrant
agent with the following:
o payment of the exercise price,
o certain information required as described on the reverse side of
the warrant certificates,
o the number of warrants to be exercised and
o an executed and completed warrant certificate.
The common stock warrant agent will issue a new warrant certificate for any
warrants not exercised. The exercise price and the number of shares of common
stock that each warrant can purchase will be subject to adjustment in certain
events, including the issuance of a common stock dividend or a combination,
subdivision or reclassification of common stock. No adjustment will be required
until cumulative adjustments require an adjustment of at least 1%.
From time to time, we may reduce the exercise price. No fractional shares
will be issued upon exercise of warrants, but we will pay the cash value of any
fractional shares otherwise issuable. If we enter into any consolidation,
merger, or sale or conveyance of our property as an entirety, the holder of each
outstanding warrant shall have the right to the kind and amount of shares of
stock, other securities, property or cash receivable by a holder of the number
of shares of common stock into which such warrants were exercisable immediately
prior to the occurrence of the event.
Modification of the Common Stock Warrant Agreement
The common stock warrant agreement will permit us and the common stock
warrant agent, without the consent of the common stock warrant holders, to
supplement or amend the agreement in the following circumstances:
o to cure any ambiguity;
o to correct or supplement any provision which may be defective or
inconsistent with any other provisions; or
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o to add new provisions regarding certain matters or questions that
we and the common stock warrant agent may deem necessary or
desirable and which do not adversely affect the interests of the
common stock warrant holders.
UNITED STATES FEDERAL INCOME TAXATION
The following is a description of the material United States federal income
tax consequences that may be relevant to non-U.S. holders, as defined below,
with respect to the acquisition, ownership and disposition of shares of our
common stock and the exercise or disposition of our warrants. This description
addresses only the United States federal income tax considerations of non-U.S.
holders that are initial purchasers of shares of our common stock or warrants
and that will hold shares of our common stock or warrants as capital assets.
This description does not address tax considerations applicable to holders that
may be subject to special tax rules, including:
o financial institutions or insurance companies;
o grantor trusts;
o dealers or traders in securities or currencies;
o tax-exempt entities;
o S corporations;
o persons that received our common stock or warrants as
compensation for the performance of services;
o persons that will hold our common stock or warrants as part of a
"hedging" or "conversion" transaction or as a position in a
"straddle" for United States federal income tax purposes; or
o persons that have a "functional currency" other than the United
States dollar.
Moreover, except as set forth below, this description does not address the
United States federal estate and gift or alternative minimum tax consequences of
the acquisition, ownership and disposition of our shares or the exercise or
disposition of our warrants.
This description is based on the Internal Revenue Code of 1986, as amended,
or the "Code," existing, and proposed United States Treasury Regulations and
judicial and administrative interpretations thereof, in each case as in effect
and available on the date of this prospectus. All of the foregoing are subject
to change, which change could apply retroactively and could affect the tax
consequences described below.
For purposes of this description, a "non-U.S. holder" is a beneficial owner
of shares of our common stock or warrants that, for United States federal income
tax purposes, is not:
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o a citizen or resident of the United States;
o a partnership or corporation created or organized in or under the
laws of the United States or any state thereof, including the
District of Columbia;
o an estate the income of which is subject to United States federal
income taxation regardless of its source; or
o
o a trust if such trust validly elects to be treated as a United
States person for United States federal income tax purposes or if
(1) a court within the United States is able to exercise primary
supervision over its administration and (2) one or more United
States persons have the authority to control all of the
substantial decisions of such trust.
If a partnership (or any other entity treated as a partnership for United
States federal income tax purposes) holds shares of our common stock or
warrants, the tax treatment of a partner in such partnership generally will
depend on the status of the partner and the activities of the partnership. Such
a partner should consult its tax advisor as to its tax consequences.
You should consult your own tax advisor with respect to the United States
federal, state, local and foreign tax consequences of acquiring, owning or
disposing of shares of our common stock or exercising or disposing of our
warrants.
Distributions
Generally, but subject to the discussions below under "Status as United
States Real Property Holding Corporation" and "Backup Withholding Tax and
Information Reporting Requirements," if you are a non-U.S. holder, distributions
of cash or property (other than shares of our common stock, if any, distributed
pro rata to all our shareholders) paid to you will be subject to withholding of
United States federal income tax at a 30% rate or such lower rate as may be
specified by an applicable United States income tax treaty. In order to obtain
the benefit of any applicable United States income tax treaty, you will have to
file certain forms (e.g., Internal Revenue Service Form W-8BEN). Such forms
generally would contain your name and address and a certification that you are
eligible for the benefits of such treaty. In addition, to the extent there is no
"established financial market" for our shares within the meaning of applicable
Treasury regulations, you would be required to furnish your Taxpayer
Identification Number.
Except as may be otherwise provided in an applicable United States income
tax treaty, if you are a non-U.S. holder and conduct a trade or business within
the United States, you generally will be taxed at ordinary United States federal
income tax rates (on a net income basis) on dividends that are effectively
connected with the conduct of such trade or business and such dividends will not
be subject to the withholding described above. If you are a foreign corporation,
you may also be subject to a 30% "branch profits tax" unless you qualify for a
lower rate under an applicable United States income tax treaty. To claim an
exemption from withholding because the income is effectively connected with a
United States trade or business, you must provide a properly executed Internal
Revenue Service Form W-8ECI (or such successor form as the Internal Revenue
Service designates) prior to the payment of dividends.
Sale or Exchange of Our Shares
-23-
Generally, but subject to the discussions below under "Status as United
States Real Property Holding Corporation" and "Backup Withholding Tax and
Information Reporting Requirements," if you are a non-U.S. holder, you will not
be subject to United States federal income or withholding tax on any gain
realized on the sale or exchange of our shares unless (1) such gain is
effectively connected with your conduct of a trade or business in the United
States or (2) if you are an individual, you are present in the United States for
183 days or more in the taxable year of such sale or exchange and certain other
conditions are met.
Warrants
The following discussion assumes that the form of the warrants will be
respected for United States federal income tax purposes. Depending on the terms
of the warrants, a holder of a warrant may be treated by the Internal Revenue
Service, for United States federal income tax purposes, as holding the
underlying common stock from the date of acquisition of the warrant or
otherwise.
Generally, if you are a non-U.S. holder, you will not recognize any gain or
loss upon exercise of a warrant (except with respect to any cash received in
lieu of a fractional share of common stock).
Generally, but subject to the discussions below under "Status as United
States Real Property Holding Corporation" and "Backup Withholding Tax and
Information Reporting Requirements," if you are a non-U.S. holder you generally
will not be subject to United States federal income tax in respect of gain
recognized from the sale or exchange of a warrant unless (i) the gain is
effectively connected with a trade or business conducted by the non-U.S. holder
within the United States or (ii) in the case of a non-U.S. holder who is a
non-resident alien individual and holds the common stock into which the warrants
are exercisable as a capital asset, such holder is present in the United States
for 183 days or more in the taxable year of such sale or exchange and certain
other conditions are met.
Status as United States Real Property Holding Corporation
We believe that we may be considered a U.S. real property holding
corporation within the meaning of the Code, although we are still analyzing the
impact of the acquisitions of Franco-Nevada Mining Corporation Limited and
Normandy Mining Limited. If we are considered a U.S. real property holding
corporation, even if you are a non-U.S. holder and lack other connections with
the United States, you may be subject to a tax on any gain realized on the
disposition of shares of our common stock or warrants if at the time of the
disposition our common stock is not regularly traded on an established
securities market. You also may be subject to a withholding tax on the proceeds
from the disposition of the shares of our common stock or warrants. Currently,
our common stock is regularly traded on an established securities market and,
therefore, the tax and the withholding tax described above would not apply to a
disposition of shares or warrants, except as provided below. The tax described
above would apply to the disposition by you of shares of our common stock or
warrants even though our common stock is regularly traded on an established
securities market if you are a non-U.S. person who actually or constructively
beneficially owns more than 5% of the total fair market value of all outstanding
shares of our common stock at any time during the five year period immediately
preceding the disposition. The withholding tax described above, however, would
not apply to the disposition, except in certain circumstances.
-24-
Federal Estate Tax
Shares of our common stock or warrants held by an individual who at his or
her date of death is not a citizen or resident of the United States generally
will be subject to United States federal estate tax.
Backup Withholding Tax and Information Reporting Requirements
United States backup withholding tax and information reporting requirements
generally apply to certain payments to certain noncorporate holders of shares of
our common stock or warrants.
If you are not a United States person, however, under current United States
Treasury Regulations, backup withholding will not apply to distributions on
shares of our common stock to you, provided that we have received valid
certifications meeting the requirements of the Code and neither we nor the payor
has actual knowledge or reason to know that you are a United States person for
purposes of such backup withholding tax requirements.
If provided by a beneficial owner, the certification must give the name and
address of such owner, state that such owner is not a United States person, or,
in the case of an individual, that such person is neither a citizen or resident
of the United States, and must be signed by the owner under penalties of
perjury. If provided by a financial institution, other than a financial
institution that is a qualified intermediary, the certification must state that
the financial institution has received from the beneficial owner the certificate
set forth in the preceding sentence, set forth the information contained in such
certificate (and include a copy of such certificate), and be signed by an
authorized representative of the financial institution under penalties of
perjury. Generally, the furnishing of the names of the beneficial owners of our
shares that are not United States persons and a copy of such beneficial owner's
certificate by a financial institution will not be required where the financial
institution is a qualified intermediary. Moreover, a payor may rely on a
certification provided by a payee that is not a United States person only if
such payor does not have actual knowledge or a reason to know that any
information or certification stated in such certificate is incorrect.
In the case of such payments made to a foreign simple trust, a foreign
grantor trust or a foreign partnership, other than payments to a foreign simple
trust, a foreign grantor trust or a foreign partnership that qualifies as a
"withholding foreign trust" or a "withholding foreign partnership" within the
meaning of such United States Treasury Regulations and payments to a foreign
simple trust, a foreign grantor trust or a foreign partnership that are
effectively connected with the conduct of a trade or business in the United
States, the beneficiaries of the foreign simple trust, the persons treated as
the owners of the foreign grantor trust or the partners of the foreign
partnership, as the case may be, will be required to provide the certification
discussed above in order to establish an exemption from backup withholding tax
and information reporting requirements.
You should consult your own tax advisor concerning the tax consequences of
the acquisition, ownership and disposition of shares of our common stock and the
exercise or disposition of our warrants.
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SELLING SECURITY HOLDERS
This prospectus may also be used for reoffers and resales by persons who
receive our common stock or warrants in acquisitions or our common stock on
exercise of warrants and who may be entitled to reoffer and resell the common
stock or warrants under circumstances requiring the use of a prospectus.
However, no person will be authorized to use this prospectus for an offer of the
common stock or warrants without first obtaining our consent. We may consent to
the use of this prospectus by selling security holders for a limited period of
time and subject to limitations and conditions, which may be varied by agreement
between us and the selling security holders. A supplement to this prospectus
will set forth information identifying the selling security holders and
disclosing the information about the selling security holders and the securities
to be sold as may then be required by the Securities Act and the rules of the
SEC.
LEGAL OPINION
White & Case LLP will issue for us an opinion about the legality of the
offered securities.
EXPERTS
The financial statements of Newmont Mining Corporation incorporated in this
prospectus by reference to the Annual Report on Form 10-K/A for the year ended
December 31, 2002 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
The financial statements of Newmont Mining Corporation incorporated in this
prospectus by reference to the Annual Report on Form 10-K/A for the year ended
December 31, 2001 have been so incorporated in reliance on the report (which
contains an explanatory paragraph relating to various restatements described in
Note 23 to the financial statements) of PricewaterhouseCoopers LLP, independent
accountants, given on the authority of said firm as experts in auditing and
accounting.
The financial statements of Nusa Tengarra Partnership V.O.F., an equity
investee of Newmont, incorporated in this prospectus by reference to the Annual
Report on Form 10-K/A for the year ended December 31, 2002 have been so
incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
The financial statements of Nusa Tengarra Partnership V.O.F. incorporated
in this prospectus by reference to the Annual Report on Form 10-K/A for the year
ended December 31, 2001 have been so incorporated in reliance on the report
(which contains an explanatory paragraph relating to various restatements in
Note 16 to the financial statements) of PricewaterhouseCoopers LLP, independent
accountants, given on the authority of said firm as experts in auditing and
accounting.
The audited consolidated financial statements of Franco-Nevada Mining
Corporation Limited (now Newmont Mining Corporation of Canada Limited) as of
March 31, 2001 and 2000 and for each of the three years ended March 31, 2001,
incorporated in this prospectus by reference to the Current Report on Form 8-K/A
filed on April 15, 2003, have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
-26-
The financial statements of Normandy Mining Limited (now Newmont Australia
Limited) as of June 30, 2001 and 2000 and for the years then ended, incorporated
in this prospectus by reference to Amendment No. 2 to the Current Report on Form
8-K/A filed by Newmont Mining Corporation on April 15, 2003 have been audited by
Deloitte Touche Tohmatsu, independent auditors, as stated in their report (which
report expresses an unqualified opinion and includes an explanatory paragraph
referring to the restatement of the reconciliation to accounting principles
generally accepted in the United States of America in Note 40, as discussed in
Note 41), which is incorporated herein by reference, and have been so
incorporated in reliance upon the report of such firm given upon their authority
as experts in accounting and auditing.
Behre Dolbear & Company, Inc., a mineral industry consulting firm,
performed an independent appraisal of goodwill assigned to our reporting units
in connection with the February 2002 acquisitions of Franco-Nevada Mining
Corporation Limited (now Newmont Mining Corporation of Canada Limited) and
Normandy Mining Limited (now Newmont Australia Limited). The financial
statements of Newmont incorporated in this prospectus by reference to the Annual
Report on Form 10-K/A for the year ended December 31, 2002 have been so
incorporated in reliance on the appraisal of Behre Dolbear & Company, Inc.,
given on the authority of said firm as experts in mining industry appraisals.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public from our
web site at http://www.newmont.com or from the SEC's web site at
http://www.sec.gov. The information on our website is not incorporated by
reference into and is not made a part of this prospectus. You may also read and
copy any document we file at the SEC's public reference room in Washington, D.C.
Please call the SEC at 1-800-SEC-0330 for further information on the public
reference rooms.
The SEC allows us to "incorporate by reference" in this prospectus the
information in the documents that we file with it, which means that we can
disclose important information to you by referring you to those documents. The
information incorporated by reference is considered to be a part of this
prospectus, and information in documents that we file later with the SEC will
automatically update and supersede information contained in documents filed
earlier with the SEC or contained in this prospectus. We incorporate by
reference in this prospectus the documents listed below and any future filings
that we may make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the
Securities Exchange Act of 1934, as amended, until we sell all of the securities
that may be offered by this prospectus:
o Annual Report on Form 10-K for the year ended December 31, 2002
(as amended by an Annual Report on Form 10-K/A filed on October
24, 2003);
o Annual Report of Form 10-K/A for the year ended December 31, 2001
filed on March 20, 2003;
o Quarterly Reports on Form 10-Q for the quarters ended March 31,
2003 (as amended by a Quarterly Report on Form 10-Q/A filed on
October 24, 2003), June 30, 2003 (as amended by a Quarterly
Report on Form 10-Q/A filed on October 24, 2003) and September
30, 2003;
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o Quarterly Reports on Form 10-Q/A for the quarters ended March 31,
2002, June 30, 2002 and September 30, 2002 each filed on April
11, 2003;
o Current Reports on Form 8-K filed on April 22, 2003 and November
7, 2003;
o Current Report on Form 8-K/A filed on April 15, 2003 amending
Current Report on Form 8-K filed on March 1, 2002 and
subsequently amended on April 16, 2002; and
o The description of our common stock contained in our registration
statement on Form 8-A for our common stock filed under the
Securities Exchange Act of 1934, as amended, including any
amendment or report filed for the purpose of updating that
description.
You may request a copy of these documents at no cost to you, by writing or
telephoning us as follows:
Newmont Mining Corporation
1700 Lincoln Street
Denver, Colorado 80203
Attn: Office of the Secretary
(303) 863-7414
You should rely only on the information incorporated by reference or
provided in this prospectus or in any prospectus supplement. We have not
authorized anyone to provide you with different information. We are not making
an offer of the securities described in this prospectus in any state where the
offer is not permitted. You should not assume that the information in this
prospectus or any prospectus supplement is accurate as of any date other than
the date on the front of those documents.
-28-
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Article Tenth of the Certificate of Incorporation of Newmont Mining
Corporation provides that its directors 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 Newmont Mining provide that each person who at any time is
or shall have been a director or officer of Newmont Mining, 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 Newmont
Mining, and his or her heirs, executors and administrators, shall be indemnified
by Newmont Mining, 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
Newmont Mining facilitates enforcement of the right of directors and owners 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 Newmont
Mining, 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 21. Exhibits and Financial Statement Schedules.
Exhibit
Number Description of Documents
------- ------------------------
3.1 Certificate of Incorporation of Newmont Mining Corporation.
Incorporated by reference to Appendix F to Newmont Mining
Corporation's Registration Statement on Form S-4 (File No.
333-76506), filed with the Securities and Exchange Commission on
January 10, 2002.
3.2 Certificate of Amendment to the Certificate of Incorporation of
Newmont Mining Corporation. Incorporated by reference to Exhibit
3.4 to Newmont Mining Corporation'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
II-1
Commission on February 15, 2002.
3.3 By-Laws of Newmont Mining Corporation. Incorporated by reference
to Exhibit 3(g) to Newmont Mining Corporation's Annual Report on
Form 10-K for the year ended December 31, 2001.
3.4 Certificate of Elimination of Series A Junior Participating
Preferred Stock of the 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.
3.5 Certificate of Designations of Special Voting Stock of Newmont
Mining Corporation. Incorporated by reference to Exhibit 3.3 to
Newmont Mining Corporation'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.
3.6 Certificate of Designations of Series A Junior Participating
Preferred Stock of Newmont Mining Corporation. Incorporated by
reference to Exhibit 3.1 to Newmont Mining Corporation'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.
3.7 Certificate of Designations of $3.25 Convertible Preferred Stock
of Newmont Mining Corporation. Incorporated by reference to
Exhibit 3.6 to Newmont Mining Corporation's Registration
Statement on Form 8-A (File No. 001-31240), relating to the
registration of its $3.25 convertible preferred stock, filed with
the Securities and Exchange Commission on February 15, 2002
(which preferred stock was redeemed in full on May 15, 2002).
4.1 Rights Agreement, dated as of February 13, 2002, between Newmont
Mining Corporation and Mellon Investor Services LLC (which
includes the form of Certificate of Designations of Series B
Junior Preferred Stock of Newmont Mining Corporation 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 Newmont Mining Corporation'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.
4.2 Form of Common Stock Warrant Agreement (including form of
Warrant). Incorporated by reference to Exhibit 4.15 to Newmont
Mining Corporation's Registration Statement on Form S-3 (No.
33-54249).
5 Opinion of White & Case LLP.
15 Letter re Unaudited Interim Financial Information.
II-2
23.1 Consent of PricewaterhouseCoopers LLP re: Annual Report on Form
10-K/A for the year ended December 31, 2002.
23.2 Consent of PricewaterhouseCoopers LLP re: Amendment to Annual
Report on Form 10-K/A for the year ended December 31, 2001 filed
on March 20, 2003.
23.3 Consent of PricewaterhouseCoopers LLP re: Current Report on Form
8-K/A filed on April 15, 2003
23.4 Consent of PricewaterhouseCoopers LLP re: Nusa Tengarra
Partnership V.O.F. - Annual Report on Form 10-K/A for the year
ended December 31, 2002.
23.5 Consent of PricewaterhouseCoopers LLP re: Nusa Tengarra
Partnership V.O.F. - Amendment to Annual Report on Form 10-K/A
for the year ended December 31, 2001 filed on March 20, 2003.
23.6 Consent of Deloitte Touche Tohmatsu.
23.7 Consent of White & Case LLP (included in Exhibit 5).
23.8 Consent of Behre Dolbear & Company, Inc.
24.1 Power of Attorney of certain officers and directors of Newmont
Mining Corporation.
Item 22. Undertakings.
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933, as amended;
(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
II-3
(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, as amended, that are incorporated by reference
in the registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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
(4) that, for purposes of determining any liability under the
Securities Act of 1933, as amended, each filing of Registrant's annual
report pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934, as amended, 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.
(5) to respond to requests for information that is incorporated
by reference into the prospectus pursuant to Items 4, 10(b), 11, or 13
of this Form, within one business day of receipt of such request, and
to send the incorporated documents by first class mail or other
equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement
through the date of responding to the request.
(6) to supply by means of a post-effective amendment all
information concerning a transaction, and the company being acquired
involved therein, that was not the subject of and included in the
registration statement when it became effective.
(7) that prior to any public reoffering of the securities
registered hereunder through use of a prospectus which is a part of
this registration statement, by any person or party who is deemed to
be an underwriter within the meaning of Rule 145(c), the issuer
undertakes that such reoffering prospectus will contain the
information called for by the applicable registration form with
respect to reofferings by persons who may be deemed underwriters, in
addition to the information called for by the other Items of the
applicable form.
(8) that every prospectus (i) that is filed pursuant to paragraph
(7) immediately preceding, or (ii) that purports to meet the
requirements of Section 10(a)(3) of the Securities Act of 1933, as
amended, and is used in connection with an offering of securities
subject to Rule 415, will be filed as a part of an amendment to the
registration
II-4
statement and will not be used until such amendment is effective, and
that, for purposes of determining any liability under the Securities
Act of 1933, as amended, 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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, 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, as amended, 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, as amended, and will be governed by the final adjudication of such
issue.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant 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 22nd day of January, 2004.
NEWMONT MINING CORPORATION
By /s/ Britt D. Banks
-----------------------------------------
Britt D. Banks
Vice President, General Counsel and
Secretary
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
*
----------------------
Glen A. Barton Director January 22, 2004
*
----------------------
Vincent A. Calarco Director January 22, 2004
*
----------------------
James T. Curry, Jr. Director January 22, 2004
*
----------------------
Joseph P. Flannery Director January 22, 2004
*
----------------------
Michael S. Hamson Director January 22, 2004
*
----------------------
Leo I. Higdon, Jr. Director January 22, 2004
*
----------------------
Pierre Lassonde President and Director January 22, 2004
*
----------------------
Robert J. Miller Director January 22, 2004
* Chairman of the Board and Chief
---------------------- Executive Officer
Wayne W. Murdy (Principal Executive Officer) January 22, 2004
*
----------------------
Robin A. Plumbridge Director January 22, 2004
*
----------------------
John B. Prescott Director January 22, 2004
II-6
Signature Title Date
*
----------------------
Michael K. Reilly Director January 22, 2004
*
----------------------
Seymour Schulich Director January 22, 2004
*
----------------------
James V. Taranik Director January 22, 2004
*
----------------------
Bruce D. Hansen Senior Vice President and Chief January 22, 2004
Financial Officer
(Principal Financial Officer)
*
----------------------
David W. Peat Vice President and Global Controller January 22, 2004
(Principal Accounting Officer)
*By /s/ Britt D. Banks
--------------------------------
Britt D. Banks
As Attorney-in-fact
II-7
EXHIBIT INDEX
Exhibit
Number Description of Documents
-------- ------------------------
3.1 Certificate of Incorporation of Newmont Mining Corporation.
Incorporated by reference to Appendix F to Newmont Mining
Corporation's Registration Statement on Form S-4 (File No.
333-76506), filed with the Securities and Exchange Commission on
January 10, 2002.
3.2 Certificate of Amendment to the Certificate of Incorporation of
Newmont Mining Corporation. Incorporated by reference to Exhibit
3.4 to Newmont Mining Corporation'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.
3.3 By-Laws of Newmont Mining Corporation. Incorporated by reference
to Exhibit 3(g) to Newmont Mining Corporation's Annual Report on
Form 10-K for the year ended December 31, 2001.
3.4 Certificate of Elimination of Series A Junior Participating
Preferred Stock of the 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.
3.5 Certificate of Designations of Special Voting Stock of Newmont
Mining Corporation. Incorporated by reference to Exhibit 3.3 to
Newmont Mining Corporation'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.
3.6 Certificate of Designations of Series A Junior Participating
Preferred Stock of Newmont Mining Corporation. Incorporated by
reference to Exhibit 3.1 to Newmont Mining Corporation'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.
3.7 Certificate of Designations of $3.25 Convertible Preferred Stock
of Newmont Mining Corporation. Incorporated by reference to
Exhibit 3.6 to Newmont Mining Corporation's Registration
Statement on Form 8-A (File No. 001-31240), relating to the
registration of its $3.25 convertible preferred stock, filed with
the Securities and Exchange Commission on February 15, 2002
(which preferred stock was redeemed in full on May 15, 2002).
4.1 Rights Agreement, dated as of February 13, 2002, between
Newmont Mining Corporation and Mellon Investor Services LLC
(which includes the form of Certificate of Designations of Series
B Junior Preferred Stock of Newmont Mining Corporation 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
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reference to Exhibit 4.1 to Newmont Mining Corporation'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.
4.2 Form of Common Stock Warrant Agreement (including form of
Warrant). Incorporated by reference to Exhibit 4.15 to Newmont
Mining Corporation's Registration Statement on Form S-3 (No.
33-54249).
5 Opinion of White & Case LLP.
15 Letter re Unaudited Interim Financial Information.
23.1 Consent of PricewaterhouseCoopers LLP re: Annual Report on Form
10-K/A for the year ended December 31, 2002.
23.2 Consent of PricewaterhouseCoopers LLP re: Amendment to Annual
Report on Form 10-K/A for the year ended December 31, 2001 filed
on March 20, 2003.
23.3 Consent of PricewaterhouseCoopers LLP re: Current Report on Form
8-K/A filed on April 15, 2003
23.4 Consent of PricewaterhouseCoopers LLP re: Nusa Tengarra
Partnership V.O.F. - Annual Report on Form 10-K/A for the year
ended December 31, 2002.
23.5 Consent of PricewaterhouseCoopers LLP re: Nusa Tengarra
Partnership V.O.F. - Amendment to Annual Report on Form 10-K/A
for the year ended December 31, 2001 filed on March 20, 2003.
23.6 Consent of Deloitte Touche Tohmatsu.
23.7 Consent of White & Case LLP (included in Exhibit 5).
23.8 Consent of Behre Dolbear & Company, Inc.
24.1 Power of Attorney of certain officers and directors of Newmont
Mining Corporation.
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