Registration No. 333-86890
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
to
FORM S-3
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 only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please 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, please 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(c)
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 delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
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.
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[The information contained in this prospectus is not complete and may be
changed. We may not sell these securities until the registration statement filed
with the Securities and Exchange Commission is effective. This prospectus is not
an offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted. ]
SUBJECT TO COMPLETION, DATED JUNE o, 2002
NEWMONT MINING CORPORATION
12,445,837 Shares of Common Stock
Issuable upon Exercise
of
Class A Warrants and Class B Warrants
of
Newmont Mining Corporation of Canada Limited
(formerly known as Franco-Nevada Mining Corporation Limited)
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This prospectus relates to shares of common stock of Newmont Mining
Corporation that may be issued from time to time upon the exercise of
outstanding Class A Warrants and Class B Warrants of Newmont Mining Corporation
of Canada Limited (formerly known as Franco-Nevada Mining Corporation Limited),
a subsidiary of Newmont Mining Corporation. Each Class A Warrant is exercisable
for 3.2 shares of common stock of Newmont Mining Corporation upon surrender of
one Warrant and C$200, subject to adjustment. Each Class B Warrant is
exercisable for 2.464 shares of common stock of Newmont Mining Corporation upon
surrender of one Warrant and C$100, subject to adjustment. As of May 30, 2002,
2,246,336 Class A Warrants were outstanding and 2,133,751 Class B Warrants were
outstanding. As used in this prospectus, "$" means U.S. dollars and "C$" means
Canadian dollars.
The Newmont Mining Corporation common stock trades on the New York Stock
Exchange under the symbol "NEM" and in the form of Australian CHESS depositary
interests on the Australian Stock Exchange under the symbol "NEM".
See "Risk Factors" beginning on page 3 regarding factors you should
consider before exercising your Warrants for shares of our common stock.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
This prospectus is dated , 2002.
TABLE OF CONTENTS
NEWMONT MINING CORPORATION.....................................................3
RISK FACTORS...................................................................3
FORWARD-LOOKING STATEMENTS.....................................................4
THE ACQUISITION OF FRANCO-NEVADA...............................................4
USE OF PROCEEDS................................................................5
DESCRIPTION OF THE WARRANTS....................................................5
DESCRIPTION OF THE NEWMONT MINING CORPORATION CAPITAL STOCK....................5
U.S. FEDERAL INCOME TAX CONSIDERATIONS AS A REAL PROPERTY
HOLDING CORPORATION...........................................................16
PLAN OF DISTRIBUTION..........................................................16
LEGAL OPINION.................................................................16
EXPERTS.......................................................................16
WHERE YOU CAN FIND MORE INFORMATION...........................................17
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NEWMONT MINING CORPORATION
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, stockholders approved adoption
of an Agreement and Plan of Merger that provided for a restructuring of Newmont
to facilitate the February 2002 acquisitions described below and to create a
more flexible corporate structure. Newmont merged with an indirect, wholly-owned
subsidiary, which resulted in Newmont becoming a direct wholly-owned subsidiary
of a new holding company. The new holding company was renamed Newmont Mining
Corporation. There is no impact to the consolidated financial statements of
Newmont as a result of this restructuring and former stockholders of Newmont
became stockholders of the new holding company. In this prospectus, "Newmont"
and "we" refer to Newmont Mining Corporation and/or our affiliates and
subsidiaries and are intended to include both pre- and post-restructuring
Newmont, unless the context specifically requires otherwise.
On February 16, 2002, Newmont completed the acquisition of Franco-Nevada
Mining Corporation Limited, a Canadian company, pursuant to a Plan of
Arrangement. As a result, Franco-Nevada became a subsidiary of Newmont and
subsequently changed its name to Newmont Mining Corporation of Canada Limited.
On February 20, 2002, Newmont gained control of Normandy Mining Limited, an
Australian company, through an off-market bid for all of the ordinary shares in
the capital of Normandy. On February 26, 2002, when Newmont's off-market bid for
Normandy expired, Newmont had a relevant interest in more than 96% of Normandy's
outstanding shares. Subsequently, Newmont exercised its compulsory acquisition
rights under Australian law and, as a result, now owns, directly or through its
subsidiaries, all of the outstanding shares of Normandy.
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, copper and zinc.
Our principal executive offices are located at 1700 Lincoln Street, Denver,
Colorado 80203 and our telephone number is (303) 863-7414.
RISK FACTORS
General Risks Relating to Newmont and its Common Stock
Investment in our common stock is subject to risks and uncertainties. For a
discussion of these risks and uncertainties, please see Item 1A entitled "Risk
Factors" in our Annual Report on Form 10-K for our most recently completed
fiscal year, which is incorporated by reference into this prospectus.
Risk Relating to Arthur Andersen LLP
Our former independent public accountant, Arthur Andersen LLP, was indicted
on March 14, 2002, on federal obstruction of justice charges arising from the
U.S. government's investigation of Enron Corp. On June 15, 2002, a jury
convicted Arthur Andersen on these
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charges. Events arising out of the indictment and conviction may materially and
adversely affect the ability of Arthur Andersen LLP to satisfy any claims that
may arise out of Arthur Andersen LLP's audit of our financial statements.
In connection with this prospectus, we were required to obtain a written
consent from our independent public accountants in order to include their audit
report covering the audited financial statement included in this prospectus and
to file the consent as an exhibit to the registration statement of which this
prospectus forms a part. We obtained such a consent from Arthur Andersen at the
time the registration statement was originally filed on April 26, 2002.
Representatives of Arthur Andersen LLP, however, are no longer available to
provide a consent in connection with subsequent amendments to the registration
statement. As a result, we filed an amendment in reliance on temporary rules
issued by the SEC which relieves an issuer from the obligation to obtain Arthur
Andersen consents in certain cases. As a result of Arthur Andersen not having
provided that subsequent consent, you may not be able to recover against Arthur
Andersen LLP under Section 11 of the Securities Act of 1933 with respect to
their report.
FORWARD-LOOKING STATEMENTS
Some statements contained in this prospectus (including information
incorporated by reference) are "forward-looking statements" within the meaning
of Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934 and are intended to be covered by the safe harbor provided
for under those sections. Our forward-looking statements include estimates of
future production, capital expenditures and other costs and expenses, reserve
estimates, projected acquisition synergies and the other statements set forth
under "Forward-Looking Statements" in Item 1 of our Annual Report on Form 10-K
for our most recently completed fiscal year, which is incorporated by reference
into this prospectus.
Our forward-looking statements are subject to risks, uncertainties and
other factors which could cause actual results to differ materially from future
results expressed, projected or implied by those forward-looking statements.
Important factors that could cause actual results to differ materially from our
forward-looking statements include gold and other commodity prices, currency
fluctuations, higher than anticipated production costs, potential environmental
liabilities, uncertainty in proven and probable gold reserves and political and
economic risks in the countries in which we operate, as well as the other
factors described in Item 1A entitled "Risk Factors" in our Annual Report on
Form 10-K for our most recently completed fiscal year, which is incorporated by
reference into this prospectus. Given these uncertainties, readers are cautioned
not to place undue reliance on our forward-looking statements.
We do not undertake any obligation to release publicly any revisions to our
forward-looking statements to reflect events or circumstances after the date of
the document, or to reflect the occurrence of unanticipated events, except as
may be required under applicable securities laws.
THE ACQUISITION OF FRANCO-NEVADA
On February 16, 2002, Newmont completed its acquisition of Franco-Nevada
Mining Corporation of Canada Limited pursuant to an arrangement agreement, dated
as of November 14,
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2001. Pursuant to the arrangement agreement, each Franco-Nevada common
shareholder received in exchange for each Franco-Nevada common share either: (1)
0.80 of an exchangeable share of Franco-Nevada (exchangeable for Newmont common
stock) or (2) 0.80 of a share of Newmont common stock. Franco-Nevada became a
subsidiary of Newmont and subsequently changed its name to Newmont Mining
Corporation of Canada Limited.
USE OF PROCEEDS
The shares of common stock will be issued to holders of the Class A
Warrants and the Class B Warrants upon exercise of those Warrants and payment of
the relevant exercise price. Newmont Mining Corporation of Canada Limited will
receive the exercise price paid in connection with each exercise of the Class A
Warrants and Class B Warrants and will use the aggregate proceeds for general
corporate purposes.
DESCRIPTION OF THE WARRANTS
The following is a summary of the terms of the Warrants relating to the
exercise rights of those Warrants, as well as other material terms of the
Warrants. For additional information regarding the Warrants, please refer to the
warrant agreements under which the Warrants were issued. Copies of the warrant
agreements can be obtained from Newmont.
The Class A Warrants were issued pursuant to the warrant agreements dated
as of September 15, 1993 and February 11, 1998, as amended and supplemented,
each between Franco-Nevada Mining Corporation Limited and Computershare Trust
Company of Canada (formerly Montreal Trust Company of Canada), as agent. The
Class B Warrants were issued pursuant to the warrant agreements dated as of
November 12, 1993 and January 8, 1999, as amended and supplemented, each between
Euro-Nevada Mining Corporation Limited and Computershare, as agent. As of May
30, 2002, 2,246,336 Class A Warrants were outstanding and 2,133,751 Class B
Warrants were outstanding.
As a result of our acquisition of Franco-Nevada, the Warrants are
exercisable at any time into shares of our common stock. Each Class A Warrant is
exercisable for 3.2 shares of our common stock upon surrender of one Warrant and
C$200, subject to adjustment. Each Class B Warrant is exercisable for 2.464
shares of our common stock upon surrender of one Warrant and C$100, subject to
adjustment. The Warrants may be exercised at any time. The Class A Warrants
expire on September 15, 2003. The Class B Warrants expire on November 12, 2003.
DESCRIPTION OF THE NEWMONT MINING CORPORATION
CAPITAL STOCK
Your rights as a stockholder of Newmont 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.
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As of May 30, 2002, we had 755,000,000 shares of authorized capital stock.
Those shares consisted of:
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) 346,679,399 shares were outstanding, including shares
evidenced by Australian CHESS depositary interests which represent
beneficial ownership of shares of common stock of Newmont on a
ten-for-one basis, and (2) 54,335,834 shares were issuable upon
conversion of the exchangeable shares of Newmont Mining Corporation of
Canada Limited (formerly known as Franco-Nevada Mining Corporation
Limited) which were issued in connection with our acquisition of
Franco-Nevada, 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 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
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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
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 9 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,
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, all holders of exchangeable shares would
be 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.
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Redemption
Newmont 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
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.
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 CDIs
The Newmont 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 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 stockholders' meeting. The Newmont
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 has the power to fix
various terms for each series of preferred stock, including the following:
o voting powers,
o designations,
o preferences,
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o the relative participating and option or other rights,
o qualifications, and
o limitations and restrictions.
A description of our outstanding preferred stock is set forth below.
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.
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 Mining
Corporation of Canada Limited, formerly known as Franco-Nevada Mining
Corporation Limited ("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. 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.
Ranking
With respect to distributions of assets upon liquidation, dissolution or
winding up of Newmont, 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.
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.
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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
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
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 of any class (other than shares of our common
stock or securities convertible into or exchangeable for or
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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 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, (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.
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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 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:
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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
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 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 one
one-thousandth of a share of Series A Junior Participating Preferred Stock
("preferred share") for
-13-
$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.
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;
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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.
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.
U.S. FEDERAL INCOME TAX CONSIDERATIONS AS A
REAL PROPERTY HOLDING CORPORATION
We are likely to be considered a U.S. real property holding corporation
within the meaning of the Internal Revenue Code of 1986, as amended, or the
Code. As a result, even if you are not a U.S. person as defined in the Code and
lack other connections with the United
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States, you may be subject to a tax on any gain realized on the disposition of
shares of our common stock acquired by you upon exercise of any Warrants if at
the time of the disposition our common stock is not regularly traded on an
established securities market. This tax, however, would not apply to a
disposition of shares held by you solely as a creditor. You also may be subject
to a withholding tax on the proceeds from the disposition of the shares of our
common stock. 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, except as provided below. The
tax described above would apply to the disposition by you of shares of our
common stock 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 our
outstanding 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.
We urge you to consult your own tax advisors regarding the U.S. federal tax
consequences of an investment in our common stock, as well as the tax
consequences under any state, local or foreign tax laws.
Certain U.S. federal income tax consequences of an investment in a class of
securities will, to the extent appropriate under the circumstances, be described
in the prospectus supplement relating thereto. Each prospective holder of
securities is urged to consult its own tax advisors regarding the U.S. federal
tax consequences of an investment in such securities, as well as the tax
consequences under any state, local or foreign tax laws.
PLAN OF DISTRIBUTION
We are registering by this prospectus shares of our common stock (and
associated preferred stock purchase rights) for issuance to holders of the
Warrants described above upon exercise of those warrants as provided in the
relevant warrant agreements.
LEGAL OPINION
White & Case LLP will issue for us an opinion about the legality of the
shares of common stock that may be offered by this prospectus.
EXPERTS
The consolidated financial statements of Newmont Mining Corporation
incorporated by reference in this prospectus have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in their reports with
respect thereto, and are included herein in reliance upon the authority of said
firm as experts in giving said reports.
The audited consolidated financial statements of Newmont Mining Corporation
of Canada Limited (formerly known as Franco-Nevada Mining Corporation Limited)
as of March 31, 2001 and 2000 and for each of the three years ended March 31,
2001, incorporated by reference in this prospectus, have been audited by
PricewaterhouseCoopers LLP, independent
-16-
public accountants, as indicated in
their report with respect thereto, and are included herein in reliance upon the
authority of said firm as experts in auditing and accounting.
The financial statements of Normandy Mining Limited as of June 30, 2001
and 2000, and for the years then ended, have been audited by Deloitte Touche
Tohmatsu, independent auditors, as stated in their report, 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.
With respect to the unaudited interim financial information of Normandy
Mining Limited as of December 31, 2001 and 2000 and for the six month periods
then ended which is incorporated herein by reference, Deloitte Touche Tohmatsu
have applied limited procedures in accordance with professional standards for a
review of such information. However, as stated in their report included in the
Newmont Mining Corporation Current Report on Form 8-K filed on March 1, 2002,
and incorporated by reference herein, they did not audit and they do not express
an opinion on that interim financial information. Accordingly, the degree of
reliance on their reports on such information should be restricted in light of
the limited nature of the review procedures applied. Deloitte Touche Tohmatsu
are not subject to the liability provisions of Section 11 of the Securities Act
of 1933 for their reports on the unaudited interim financial information because
those reports are not "reports" or a "part" of the registration statement
prepared or certified by an accountant within the meaning of Sections 7 and 11
of the Act.
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 web site 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 1-800-732-0330 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 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,
2001;
o Quarterly Report on Form 10-Q for the quarter ended March
31, 2002;
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o Current Reports on Form 8-K filed on January 17, 2002,
February 7, 2002, March 1, 2002 (as amended by a Current
Report on Form 8-K/A filed on April 16, 2002), April 3,
2002, April 16, 2002 and April 30, 2002 (as amended by a
Current Report on Form 8-K/A filed on June 4, 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 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.
-18-
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.*
SEC filing fee $32,713.14
Accounting fees and expenses $20,000.00
Legal fees and expenses $35,000.00
Transfer agent's fees $5,000.00
Stock exchange listing fees $17,500.00
Miscellaneous $4,786.86
-------------
Total $115,000.00
--------------------
*All estimates except for filing fee.
Item 15. Indemnification of Directors and Officers.
Article Tenth of Newmont's Certificate of Incorporation 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 provide that each person who at any time is or shall
have been a director or officer of Newmont, 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, and his or her
heirs, executors and administrators, shall be indemnified by Newmont 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 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 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
II-1
detailed provisions of Section 145 of the General Corporation Law of the State
of Delaware.
Item 16. Exhibits.
Exhibit
Number Description of Documents
4.1 Certificate of Incorporation of the Registrant. Incorporated
by reference to Appendix F to the Registrant's Registration
Statement on Form S-4 (File No. 333-76506), filed with the
Securities and Exchange Commission on January 10, 2002.
4.2 Certificate of Elimination of Series A Junior Participating
Preferred Stock of 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.
4.3 Certificate of Designations of Special Voting Stock.
Incorporated by reference to Exhibit 3.3 to the Registrant's
Registration Statement on Form 8-A (File No. 001-31240),
relating to the registration of its common stock, filed with
the Securities and Exchange Commission on February 15, 2002.
4.4 Certificate of Designations of Series A Junior Participating
Preferred Stock of the Registrant. Incorporated by reference
to Exhibit 3.1 to the Registrant's Registration Statement on
Form 8-A (File No. 001-31240), relating to the registration
of its preferred stock purchase rights, filed with the
Securities and Exchange Commission on February 15, 2002.
4.5 Certificate of Designations of $3.25 Convertible Preferred
Stock of the Registrant. Incorporated by reference to
Exhibit 3.3 to the Registrant's Registration Statement on
Form 8-A (File No. 001-31240), relating to the registration
of such preferred stock, filed with the Securities and
Exchange Commission on February 15, 2002 (which preferred
stock was redeemed in full on May 15, 2002).
4.6 Certificate of Amendment to the Certificate of Incorporation
of the Registrant. Incorporated by reference to Exhibit 3.4
to the Registrant's Registration Statement on Form 8-A (File
No. 001-31240), relating to the registration of its common
stock, filed with the Securities and Exchange Commission on
February 15, 2002.
4.7 By-Laws of the Registrant. Incorporated by reference to
Exhibit 3(g) to the Registrant's Annual Report on form 10-K
for the year ended December 31, 2001.
4.8 Rights Agreement, dated as of February 13, 2002, between the
Registrant and Mellon Investor Services LLC (which includes
the form of Certificate of Designations of Series B Junior
Preferred Stock of the Registrant as Exhibit A, the form of
Right Certificate as Exhibit B and the Summary of Rights to
Purchase
II-2
Preferred Shares as Exhibit C). Incorporated by reference to
Exhibit 4.1 to the Registrant's Registration Statement on
Form 8-A (File No. 001-31240), relating to the registration
of its preferred stock purchase rights, filed on February
15, 2002.
5 Opinion of White & Case LLP.*
15 Letter Re Unaudited Interim Financial Information.
23.1 Consent of Arthur Andersen LLP.*
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Deloitte, Touche, Tohmatsu.
23.4 Consent of White & Case LLP (included in Exhibit 5).
24.1 Power of Attorney of certain officers and directors.
24.2 Power of Attorney of principal accounting officer.
24.3 Power of Attorney of principal financial officer.
-------------------
* Previously filed.
Item 17. 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;
(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
II-3
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
and
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement;
(2) that, for the purpose of determining any liability under the Act,
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, each filing of Newmont Mining's annual report
pursuant to Section 13(a) or 15(d) of the 1934 Act that is incorporated by
reference in this registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Act 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 Act and will be governed by the final
adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment to the Registration Statement on Form
S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Denver, State of Colorado, on the 18th day of June 2002.
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, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
-----------------------
Glen A. Barton Director
*
----------------------
Vincent A. Calarco Director June 18, 2002
*
----------------------
Ronald C. Cambre Director June 18, 2002
*
----------------------
James T. Curry, Jr. Director June 18, 2002
*
----------------------
Joseph P. Flannery Director June 18, 2002
----------------------
Leo I. Higdon, Jr. Director
*
----------------------
M. Craig Haase Director June 18, 2002
*
----------------------
Michael S. Hamson Director June 18, 2002
*
----------------------
Pierre Lassonde Director June 18, 2002
*
----------------------
Robert J. Miller Director June 18, 2002
*
---------------------- Chairman of the Board and Chief
Wayne W. Murdy Executive Officer
(Principal Executive Officer) June 18, 2002
*
----------------------
Robin A. Plumbridge Director June 18, 2002
*
----------------------
John B. Prescott Director June 18, 2002
*
----------------------
Moeen A. Qureshi Director June 18, 2002
*
----------------------
Michael K. Reilly Director June 18, 2002
*
----------------------
Seymour Schulich Director June 18, 2002
*
----------------------
James V. Taranik Director June 18, 2002
*
---------------------- Senior Vice President and
Bruce D. Hansen Chief Financial Officer
(Principal Financial Officer) June 18, 2002
*
---------------------- Vice President and Global Controller
David W. Peat (Principal Accounting Officer) June 18, 2002
*By /s/ Britt D. Banks
--------------------
Britt D. Banks,
as Attorney-in-fact
EXHIBIT INDEX
Exhibit
Number Description of Documents
4.1 Certificate of Incorporation of the Registrant. Incorporated
by reference to Appendix F to the Registrant's Registration
Statement on Form S-4 (File No. 333-76506), filed with the
Securities and Exchange Commission on January 10, 2002.
4.2 Certificate of Elimination of Series A Junior Participating
Preferred Stock of 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.
4.3 Certificate of Designations of Special Voting Stock.
Incorporated by reference to Exhibit 3.3 to the Registrant's
Registration Statement on Form 8-A (File No. 001-31240),
relating to the registration of its common stock, filed with
the Securities and Exchange Commission on February 15, 2002.
4.4 Certificate of Designations of Series A Junior Participating
Preferred Stock of the Registrant. Incorporated by reference
to Exhibit 3.1 to the Registrant's Registration Statement on
Form 8-A (File No. 001-31240), relating to the registration
of its preferred stock purchase rights, filed with the
Securities and Exchange Commission on February 15, 2002.
4.5 Certificate of Designations of $3.25 Convertible Preferred
Stock of the Registrant. Incorporated by reference to
Exhibit 3.3 to the Registrant's Registration Statement on
Form 8-A (File No. 001-31240), relating to the registration
of such preferred stock, filed with the Securities and
Exchange Commission on February 15, 2002 (which preferred
stock was redeemed in full on May 15, 2002).
4.6 Certificate of Amendment to the Certificate of Incorporation
of the Registrant. Incorporated by reference to Exhibit 3.4
to the Registrant's Registration Statement on Form 8-A (File
No. 001-31240), relating to the registration of its common
stock, filed with the Securities and Exchange Commission on
February 15, 2002.
4.7 By-Laws of the Registrant. Incorporated by reference to
Exhibit 3(g) to the Registrant's Annual Report on form 10-K
for the year ended December 31, 2001.
4.8 Rights Agreement, dated as of February 13, 2002, between the
Registrant and Mellon Investor Services LLC (which includes
the form of Certificate of Designations of Series B Junior
Preferred Stock of the Registrant as Exhibit A, the form of
Right Certificate as Exhibit B and the Summary of Rights to
Purchase Preferred Shares as Exhibit C). Incorporated by
reference to Exhibit 4.1 to the Registrant's Registration
Statement on Form 8-A (File No. 001-31240), relating to the
registration of its preferred stock purchase rights, filed
on February 15, 2002.
5 Opinion of White & Case LLP.*
15 Letter Re Unaudited Interim Financial Information.
23.1 Consent of Arthur Andersen LLP.*
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Deloitte, Touche, Tohmatsu.
23.4 Consent of White & Case LLP (included in Exhibit 5).
24.1 Power of Attorney of certain officers and directors.
24.2 Power of Attorney of principal accounting officer.
24.3 Power of Attorney of principal financial officer.
-------------------
* Previously filed.