Registration No. 333-87100
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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
NEWMONT MINING CORPORATION NEWMONT USA LIMITED
(Exact name of Registrant as specified in its charter) (Exact name of Registrant as specified in its charter)
Delaware Delaware
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
84-1611629 13-2526632
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
1700 Lincoln Street 1700 Lincoln Street
Denver, Colorado 80203 Denver, Colorado 80203
(303) 863-7414 (303) 863-7414
(Address, including zip code, and telephone number, (Address, including zip code, and telephone number,
including area code, of Registrant's principal executive including area code, of Registrant's principal
offices) 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 Registrants hereby amend this registration statement on such date or
dates as may be necessary to delay its effective date until the Registrants
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 stae where the offer or sale is not permitted.]
PROSPECTUS
NEWMONT MINING CORPORATION
We may offer by this prospectus the following securities for sale:
o Common Stock
o Preferred Stock
o Warrants to purchase Common Stock
o Senior Debt Securities guaranteed by our
subsidiary, Newmont USA Limited
o Subordinated Debt Securities guaranteed by
our subsidiary, Newmont USA Limited
o Warrants to purchase Debt Securities
We will provide the specific terms of the securities that we are offering in
supplements to this prospectus. You should read this prospectus and any
supplement carefully before you invest.
See "Risk Factors" beginning on page 4 regarding factors you should consider
before purchasing the securities being offered.
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 have determined that this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
This prospectus is dated ________, 2002.
Table of Contents
ABOUT THIS PROSPECTUS..........................................................3
NEWMONT MINING CORPORATION.....................................................3
RISK FACTORS...................................................................4
USE OF PROCEEDS................................................................4
RATIOS OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS..............4
DESCRIPTION OF OUR CAPITAL STOCK...............................................6
DESCRIPTION OF COMMON STOCK WARRANTS..........................................13
DESCRIPTION OF DEBT SECURITIES AND GUARANTEES.................................15
DESCRIPTION OF DEBT SECURITY WARRANTS.........................................26
PLAN OF DISTRIBUTION..........................................................27
LEGAL OPINION.................................................................28
EXPERTS.......................................................................28
WHERE YOU CAN FIND MORE INFORMATION...........................................29
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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 any combination of the securities described in this prospectus in one or
more offerings up to a total offering price of $1,000,000,000.
This prospectus provides you with a general description of the securities
we may offer. Each time we sell 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 both 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 after giving effect to the restructuring
described above, unless the context specifically requires otherwise.
On February 16, 2002, Newmont Mining 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 Mining
and subsequently changed its name to Newmont Mining Corporation of Canada
Limited. On February 20, 2002, Newmont Mining 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
Mining's off-market bid for Normandy expired, Newmont Mining 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.
Newmont Mining and Newmont USA
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.
As a result of the restructuring described above, Newmont USA is a
subsidiary of Newmont Mining. The operations of Newmont USA and its subsidiaries
consist primarily of those of Newmont Mining Corporation and its subsidiaries
prior to the February 2002 acquisitions referred to above.
Newmont Mining is primarily a holding company and has no material
operations, sources of income or assets other than our equity interest in our
subsidiaries. Because substantially all of our operations are conducted by our
subsidiaries, our operating cash flow and our ability to service our
indebtedness, including any debt securities that may be issued pursuant to this
prospectus, depends upon the cash flow of our subsidiaries and their ability to
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make transfers to us in the form of loans, dividends or otherwise. Our
subsidiaries are separate legal entities that have no obligation to pay any
amounts due pursuant to such debt securities, other than Newmont USA through its
guarantees of such debt securities, or to make any funds available for that
purpose in the form of dividends, interest, loans, advances or other payments.
If we cannot obtain sufficient funds from our subsidiaries, we may not be able
to meet our obligations on the debt securities that may be issued pursuant to
this prospectus.
Newmont Mining's right and the ability of holders of its securities to
participate in any distribution of assets of Newmont USA or any other subsidiary
of Newmont Mining upon its liquidation or reorganization are subject to the
prior claims of creditors of Newmont USA or such other subsidiary, as the case
may be. Such claims may include claims by holders of debt of Newmont USA or such
other subsidiary, as the case may be, and claims by creditors in the ordinary
course of business.
Newmont Mining's and Newmont USA's principal executive offices are located
at 1700 Lincoln Street, Denver, Colorado 80203. Our telephone number is (303)
863-7414.
RISK FACTORS
General Risks Relating to Newmont and its Securities
Investment in our securities 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 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 consents, 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.
USE OF PROCEEDS
Unless we state otherwise in a prospectus supplement, the net proceeds from
the sale of any securities will be used for general corporate purposes including
the repayment of debt, acquisitions, additions to working capital and capital
expenditures.
RATIOS OF EARNINGS TO FIXED
CHARGES AND PREFERRED STOCK DIVIDENDS
The following table contains our ratios of earnings to fixed charges for
the periods indicated. Earnings in 2001, 1999 and 1998 were inadequate to cover
fixed charges with a deficiency of $14 million for 2001, $51 million for 1999
and $706 million for 1998.
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Year ended December 31,
Three months ended
March 31, 2002 2001 2000 1999 1998 1997
-------------- ---- ---- ---- ---- ----
1.2 0.9 1.1 0.5 --- 1.9
The following table contains our ratios of earnings to fixed charges and
preferred stock dividends for the periods indicated. Earnings in 2001, 2000,
1999 and 1998 were inadequate to cover fixed charges and preferred stock
dividends with a deficiency of $37 million for 2001, $10 million for 2000, $74
million for 1999 and $729 million for 1998.
Year ended December 31,
Three months ended
March 31, 2002 2001 2000 1999 1998 1997
-------------- ---- ---- ---- ---- ----
1.0 0.7 0.9 0.4 --- 1.6
For the purposes of these tables, fixed charges are calculated by adding
the following:
o interest expensed and capitalized,
o amortized premiums, discounts and capitalized expenses related to
indebtedness,
o an estimate of the interest within rental expense and
o preferred stock dividend requirements of consolidated subsidiaries, if
any.
For purposes of these tables, earnings are calculated by adding:
o pre-tax income from continuing operations before adjustment for
minority interests in consolidated subsidiaries or income or loss from
equity investees,
o fixed charges,
o amortization of capitalized interest,
o distributed income of equity investees and
o our share of pre-tax losses of equity investees for which charges
arising from guarantees are included in fixed charges
o and then subtracting:
o capitalized interest,
o preferred stock dividend requirements of consolidated subsidiaries, if
any, and
o minority interests in pre-tax income of subsidiaries that have not
incurred fixed charges.
The term "equity investees" means investments that we account for using the
equity method of accounting. The term "preferred stock dividend" means the
amount of pre-tax earnings that is required to pay the dividends on outstanding
preferred stock.
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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 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 Mining 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 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.
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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 8 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
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.
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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.
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 Mining.
Ranking
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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
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;
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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 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
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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:
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
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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.
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.
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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.
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.
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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
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%.
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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
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.
DESCRIPTION OF DEBT SECURITIES AND GUARANTEES
General
Newmont Mining may offer:
o senior debt securities guaranteed by Newmont USA Limited and
o subordinated debt securities guaranteed by Newmont USA Limited.
Any senior debt securities will be issued under an indenture between
Newmont Mining, Newmont USA and Citibank, N.A., as trustee. Any subordinated
debt securities will be issued under a separate indenture between Newmont
Mining, Newmont USA and Citibank, N.A., as trustee. All references in this
section to debt securities are references to both the senior debt securities and
the subordinated debt securities. All references to the indentures are
references to both the indenture for senior debt securities and the indenture
for the subordinated debt securities. All references to the trustee include both
the trustee for the senior debt securities and the trustee for the subordinated
debt securities. All references to "we", "us" or "our" are references to Newmont
Mining Corporation.
The following description of the debt securities summarizes certain of the
material provisions of the indentures and the debt securities. This summary of
the indentures and the debt securities is qualified in its entirety by reference
to the Trust Indenture Act of 1939 and the forms of indentures. We have filed
the indentures as exhibits to our registration statement of which this
prospectus forms a part.
The debt securities will be our unsecured indebtedness. The senior debt
securities will rank equally with all of our other unsecured and unsubordinated
indebtedness. The subordinated debt securities will be subordinate in right of
payment to our senior debt securities as well as our other indebtedness that we
now or may have in the future. The subordination provisions of the subordinated
debt securities are discussed in greater detail below.
The guarantee of the senior debt securities will constitute an unsecured,
unsubordinated obligation of Newmont USA and will rank equally with all other
unsecured and unsubordinated obligations of Newmont USA. The guarantee of the
subordinated debt securities will constitute an unsecured obligation of Newmont
USA and will be subordinated in right of payment to all senior or secured
indebtedness that Newmont USA has now or may have in the future. The
subordination provisions relating to the guarantee of the subordinated debt
securities are
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discussed in greater detail below.
Neither indenture limits the amount of debt securities that we may issue
under such indenture. Unless we state otherwise in the prospectus supplement,
neither indenture limits the amount of other debt that we can issue.
Both indentures allow us to issue debt securities in one or more series
with different terms. The indentures provide that debt securities of a single
series can be issued at different times with different interest rates,
redemption and repayment provisions. The particular terms of any series of debt
securities being offered will be set forth in the prospectus supplement that
relates to that series. These terms will include some or all of the following:
o the title of the debt securities and whether such debt securities are
senior or subordinated,
o the total principal amount and permitted denomination of the debt
securities,
o the percentage of the principal amount of the debt securities at which
the debt securities will be issued and any payments due if the
maturity of the debt securities is accelerated,
o the currency or currencies in which the principal and interest on the
debt securities will be payable,
o the dates on which the principal of the debt securities will mature,
o the interest rate for the debt securities or the method that will be
used to determine the interest rate,
o the dates on which interest on the debt securities will be payable and
the manner in which interest will be paid,
o any mandatory or optional repayment or redemption provisions,
o any sinking fund provisions,
o any index used to determine the amount of payments of principal and/or
interest,
o any additional payment provisions,
o any provision relating to the issuance of discounted debt securities
and
o in the case of debt securities that are convertible into common stock,
the conversion price, the period during which the debt securities may
be converted and any other terms of conversion which may differ from
the applicable indenture.
Some of the debt securities may be sold at a substantial discount below
their stated principal amount and may provide for the payment of no interest or
interest at a rate which at the time of issuance is below market rates. We will
describe the U.S. federal income tax consequences and other special
considerations applicable to any discounted debt securities in the prospectus
supplement relating to the discounted debt securities.
Newmont USA Guarantees
Newmont USA will unconditionally guarantee on an unsubordinated basis the
due and punctual payment of the principal of, any premium and any interest on
the senior debt securities, when and as these payments become due and payable,
whether at maturity, upon redemption or declaration of acceleration, or
otherwise. The guarantees of the senior debt securities will rank equally in
right of payment with all other unsecured and unsubordinated indebtedness of
Newmont USA.
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Newmont USA will unconditionally guarantee on a subordinated basis the due
and punctual payment of the principal of, any premium and any interest on the
subordinated debt securities, when and as these payments become due and payable,
whether at maturity, upon redemption or declaration of acceleration, or
otherwise. The guarantee of the subordinated debt securities will be
subordinated as described in greater detail below.
Newmont USA's obligations under the guarantee of the debt securities will
be as principal obligor and not merely as surety, and will be enforceable
irrespective of any invalidity, irregularity or unenforceability of the debt
securities or the applicable indenture. Newmont USA also will waive any right to
require a proceeding against Newmont Mining before its obligations under the
guarantees shall become effective.
Convertibility of the Debt Securities
The holders of debt securities of a specified series that are convertible
into shares of common stock of Newmont Mining will be entitled at certain times
specified in the prospectus supplement to convert any such securities into
common stock. The conversion price and other terms of the conversion will be set
forth in the prospectus supplement.
Subordination of Subordinated Debt Securities
The indebtedness represented by the subordinated debt securities will be
subordinated in right of payment to the prior payment in full of all of senior
indebtedness of Newmont Mining.
The term "senior indebtedness" means the principal of and any premium and
interest on any of our indebtedness outstanding on the date of the subordinated
debt securities indenture or to be created, incurred or assumed by us after the
date of the indenture unless the terms of such indebtedness specifically state
that it is not senior in right of payment to the subordinated debt securities.
Upon the insolvency, liquidation, bankruptcy, reorganization or similar
proceeding relating to us or our property:
o the holders of our senior indebtedness will be entitled to receive
payment in full of all obligations before payment is made to any
holders of the subordinated debt securities and
o until all obligations with respect to our senior indebtedness are paid
in full, any payment to which the holders of the subordinated debt
securities would be entitled shall be made to the holders of our
senior indebtedness.
In addition, we may not make any payment on account of the subordinated
debt securities, if:
o any of our senior indebtedness is not paid when due or
o any other default on our senior indebtedness occurs and the maturity
of such senior indebtedness is accelerated.
If there is a default with respect to any of our senior indebtedness other
than the two types of default described immediately above and the maturity of
the indebtedness may be accelerated immediately, a representative of the
applicable senior indebtedness has the right to send to us written notice
stating that there has been a default. After receipt of such notice, we may not
make any payments on the subordinated debt securities until the earlier of:
o 179 days after the receipt of the notice,
o the date on which the default which gave rise to the notice is no
longer continuing,
o the date that the default has been waived and any acceleration has
been rescinded in writing or
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o the date when the applicable senior indebtedness has been paid in
full.
Not more than one blockage period notice may be given in any consecutive
360-day period, irrespective of the number of defaults with respect to our
senior indebtedness during such period.
After all of our senior indebtedness is paid in full and all commitments in
respect of the senior indebtedness have expired or terminated and until the
subordinated debt securities are paid in full, holders of the subordinated debt
securities will be subrogated to the rights of holders of our senior
indebtedness to receive distributions applicable to the senior indebtedness.
Subordination of Guarantee of Subordinated Debt Securities
Newmont USA's guarantee of the subordinated debt securities will be
subordinated in right of payment to the prior payment in full of all of the
senior indebtedness of Newmont USA.
The term "senior indebtedness" means, with respect to Newmont USA, the
principal of and any premium and interest on any indebtedness of Newmont USA
outstanding on the date of the subordinated debt securities indenture or to be
created, incurred or assumed by Newmont USA after the date of the indenture
unless the terms of such indebtedness specifically state that it is not senior
in right of payment to the subordinated debt securities.
Upon the insolvency, liquidation, bankruptcy, reorganization or similar
proceeding relating to Newmont USA or its property:
o the holders of senior indebtedness will be entitled to receive payment
in full of all obligations before payment is made under the guarantee
of the subordinated debt securities and
o until all obligations with respect to senior indebtedness are paid in
full, any payment to which the holders of subordinated debt securities
would be entitled pursuant to the guarantee of the subordinated debt
securities will be made to the holders of senior indebtedness.
In addition, Newmont USA may not make any payment on account of the
subordinated debt securities, if:
o any senior indebtedness of Newmont USA is not paid when due or
o any other default on senior indebtedness of Newmont USA occurs and the
maturity of such senior indebtedness is accelerated.
If there is a default with respect to any senior indebtedness of Newmont
USA other than the two types of default described immediately above and the
maturity of the indebtedness may be accelerated immediately, a representative of
the applicable senior indebtedness has the right to send Newmont USA written
notice stating that there has been a default. After receipt of such notice,
Newmont USA may not make any payments on the guarantee of the subordinated debt
securities until the earlier of:
o 179 days after the receipt of the notice,
o the date on which the default which gave rise to the notice is no
longer continuing,
o the date that the default has been waived and any acceleration has
been rescinded in writing or
o the date when the applicable senior indebtedness has been paid in
full.
Not more than one blockage period notice may be given in any consecutive
360-day period, irrespective of the number of defaults with respect to senior
indebtedness of Newmont USA during such period.
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After all senior indebtedness of Newmont USA is paid in full and all
commitments in respect of the senior indebtedness have expired or terminated and
until Newmont USA's obligations under the guarantee of the subordinated debt
securities are paid in full, holders of the subordinated debt securities will be
subrogated to the rights of holders of senior indebtedness of Newmont USA to
receive distributions applicable to the senior indebtedness.
Global Notes, Delivery and Form
The debt securities may be issued in the form of one or more global notes
that will be deposited with a depositary identified in a prospectus supplement.
Each note will be registered in the name of the depositary's nominee. Unless a
global note is exchanged in whole or in part for debt securities in definitive
form, a global note may generally be transferred only as a whole and only to
another nominee of the depositary or to a successor depositary or its nominee.
Unless otherwise stated in the applicable prospectus supplement, the
depositary will be The Depository Trust Company, New York, New York. Currently,
it limits the maximum denomination of any single global note to $500 million.
Beneficial interests in global notes will be shown on, and transfers of global
notes will be effected only through, records maintained by DTC and its
participants.
DTC has provided us the following information: DTC is a limited purpose
trust company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the United States
Federal Reserve System, a "clearing corporation" within the meaning of the New
York Uniform Commercial Code and a "clearing agency" registered under Section
17A of the Securities Exchange Act of 1934. DTC holds securities that its
participants deposit with DTC. DTC also facilitates the clearance and recording
of the settlement among its participants of securities transactions, such as
transfers and pledges, in deposited securities through computerized records for
participant's accounts. This eliminates the need for physical exchange of
certificates. Direct participants include securities brokers and dealers, banks,
trust companies, clearing corporations and certain other organizations. Other
organizations such as securities brokers and dealers, banks and trust companies
that work through a participant, either directly or indirectly use DTC's
book-entry system. The rules that apply to DTC and its participants are on file
with the SEC.
Pursuant to DTC's procedures, upon issuance of debt securities represented
by a global note in connection with the sale of the debt securities to one or
more underwriters, DTC will credit the accounts of the participants designated
by the underwriters with the principal amount of the debt securities purchased
by the underwriters. Ownership of beneficial interests in a global note will be
shown
o on DTC's records with respect to participants;
o by the participants with respect to indirect participants and certain
beneficial owners; and
o by the indirect participants with respect to all other beneficial
owners.
The laws of some states require that certain persons take physical delivery
in definitive form of the securities which they own. Consequently, the ability
to transfer beneficial interests in a global note may be limited.
Under the indentures, if the nominee of DTC is the registered owner of a
global note, the nominee will be considered the sole owner or holder of the debt
securities. Except as provided below, owners of a global note will not be
entitled to have debt securities registered in their names, will not receive or
be entitled to receive physical delivery of debt securities in definitive form,
and will not be considered the owners or holders thereof under the indentures
for any purpose, including with respect to the giving of any directions,
instructions or approval to the trustee. However, DTC has advised us that
pursuant to its customary practice with respect to the giving of consents and
votes, it will deliver an omnibus proxy to the trustee assigning the related
holder's voting rights to the participant to whose account the debt securities
are credited on the record date. Each proxy will include a list of participants'
positions in the relevant security as of the record date for a consent or vote.
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We will wire to DTC's nominee principal and interest payments with respect
to global notes. We and the trustee will treat DTC's nominee as the owner of the
global notes for all purposes. Accordingly, we, the trustee and any paying agent
will have no direct responsibility or liability to pay amounts due on the global
notes to owners of beneficial interests in the global notes or for maintaining
and reviewing any records relating to the beneficial ownership interest.
It is DTC's current practice, upon receipt of any payment of principal or
interest, to credit participants' accounts on the payment date according to
their holdings of beneficial interests in the global notes as shown on DTC's
records. DTC's current practice is to credit such accounts, as to interest, in
next-day funds and, as to principal, in same-day funds. Payments by participants
to owners of beneficial interests in the global notes will be governed by
standing instructions and customary practices between the participants and the
owners of beneficial interests in the global notes, as is the case with
securities held for the account of customers registered in "street name."
However, payments will be the responsibility of the participants and not of DTC,
the underwriters, the trustee or us.
Debt securities represented by a global note will be exchangeable for debt
securities in definitive form with the same terms in authorized denominations
only if:
o DTC notifies us that it is unwilling or unable to continue as
depositary, and we do not appoint a successor depositary within 90
days or
o we determine not to have the debt securities represented by global
notes.
If any of these events occur, DTC will generally notify all direct
participants of the availability of definitive debt securities. These securities
will be issued in denominations of $1,000 and multiples thereof, in registered
form only, and without coupons. We will maintain one or more offices or agencies
in New York City to facilitate the transfer or exchange of the global notes. You
will not be required to pay any service charges for any transfer or exchange,
but we may require you to pay any tax, other governmental charge or payment in
connection with the exchange or transfer.
Same-Day Settlement in respect of Global Notes
Secondary trading in definitive long-term notes and debentures of corporate
issuers is generally settled in clearing-house or next-day funds. In contrast,
debt securities represented by global notes held by DTC will trade in DTC's
Same-Day Funds Settlement System until maturity, and DTC therefore will require
that secondary market trading activity in such debt securities settle in
immediately available funds. No assurance can be given as to the effect, if any,
of settlement in immediately available funds on trading activity in debt
securities represented by global notes.
Restrictive Covenants Required by the Indenture
The indenture for the senior debt securities requires us to comply with
certain restrictive covenants. Some of the provisions are described below. All
series of senior debt securities issued under the indenture will be entitled to
the benefits of the covenants described below except for any series of senior
debt securities that provides that they are not entitled to the benefits of the
covenants described below.
Definition of Attributable Debt
"Attributable Debt" means, with respect to any lease, the present value of
the total net rental payments during the remaining term of the lease. The
present value will be determined by using the discount rate implicit in the
terms of the lease as determined by two of our officers and will be compounded
semiannually. The net amount of rent we may pay under any lease for any period
is the amount of rent payable for the period but excluding payments for
maintenance, repairs, insurance, taxes, assessments, water rates or similar
charges. For any lease which we may terminate by paying a penalty, the net
amount of rent will include the penalty, but no rent will be included after the
first date that the lease may be terminated.
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Definition of Consolidated Net Tangible Assets
"Consolidated Net Tangible Assets" means the aggregate amount of assets
minus the following:
o applicable reserves and other properly deductible items,
o all current liabilities excluding (1) those that the borrower may
extend or renew to a time more than 12 months after the time the
amount of the liability is being computed, (2) current maturities of
long-term indebtedness and (3) capital lease obligations and
o all goodwill shown on our balance sheet.
Definition of Funded Debt
"Funded Debt" means all indebtedness for money borrowed having a maturity
of more than 12 months from the determination date or having a maturity of less
than 12 months but that the borrower may renew or extend beyond 12 months.
Definition of Principal Property
"Principal Property" means any mine, plant or other facility, the land upon
which it stands and the fixtures that are a part of it, (1) which is used
primarily for mining and processing and is located in the U.S. and (2) the net
book value of which exceeds 5% of Consolidated Net Tangible Assets. Principal
Property does not include (1) any mine, plant or facility which, in the opinion
of our board of directors, is not of material importance to our total business
or (2) any portion of a particular mine, plant or facility which is not of
material importance to the use or operation of the mine, plant or facility.
Definition of Restricted Subsidiary
"Restricted Subsidiary" means any Subsidiary (1) with substantially all of
its property located, or carrying on substantially all of its business, within
the U.S. and (2) which owns a Principal Property. "Restricted Subsidiary",
however, does not include any Subsidiary whose primary business consists of (1)
financing operations in connection with leasing and conditional sales
transactions on behalf of us and our Subsidiaries, (2) purchasing accounts
receivable or making loans secured by accounts receivable or inventory or (3)
being a finance company.
Definition of Subsidiary
"Subsidiary" is defined as any corporation or entity in which we or one or
more of our Subsidiaries directly or indirectly owns a majority of the voting
interests.
Limitation on Liens
The indenture for the senior debt securities will prohibit us and any of
our Restricted Subsidiaries from incurring, issuing, assuming or guarantying any
debt for money borrowed or any debt evidenced by notes, bonds, debentures or
other similar documents ("Debt") secured by any mortgage, security interest or
other liens (collectively, "Mortgages") on any Principal Property or shares of
stock or indebtedness of any Restricted Subsidiary, without securing all
outstanding series of debt securities under the applicable indenture (other than
any series of debt securities that provide that the debt securities of the
series are not entitled to the benefit of this covenant) equally and ratably
with (or prior to) the secured Debt to be incurred, issued, assumed or
guaranteed. This restriction, however, will not apply if the sum of the
following does not exceed 10% of Consolidated Net Tangible Assets:
o the aggregate principal amount of such secured Debt,
o all secured Debt which would otherwise be prohibited, and
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o all of our and our Restricted Subsidiary's Attributable Debt in
respect of sale and leaseback transactions which would otherwise be
prohibited by the covenant limiting sale and leaseback transactions
described below.
The restriction described above also will not apply to debt for borrowed
money secured by the following:
o Mortgages on property, stock or Debt of any entity existing at the
time it becomes a Restricted Subsidiary,
o Mortgages to secure indebtedness of a Restricted Subsidiary to us or
to another Restricted Subsidiary,
o Mortgages for taxes, assessments or governmental charges or levies (1)
that are not yet due and delinquent or (2) the validity of which is
being contested in good faith,
o Mortgages of materialmen, mechanics, carriers, workmen, repairmen,
landlords or other similar Mortgages, or deposits to obtain the
release of these Mortgages,
o Mortgages arising under attachment or restraint or similar legal
process and the execution or enforcement of which is stayed and which
are being contested in good faith,
o Mortgages (1) to secure public or statutory obligations, (2) to secure
payment of workmen's compensation, (3) to secure performance in
connection with tenders, leases of real property, bids or contracts or
(4) to secure (or in lieu of) surety or appeal bonds, and Mortgages
made in the ordinary course of business for similar purposes,
o Mortgages in favor of the United States, any state in the United
States, or any foreign governmental entity to secure payments pursuant
to any contract or statute (including Debt of the pollution control or
industrial revenue bond type) or to secure any debt incurred to
finance the purchase price or the cost of construction of the property
subject to the Mortgage,
o Mortgages on property (including capitalized leases), stock or Debt of
a corporation (1) existing at the time we or our Restricted Subsidiary
acquired the entity, (2) that secure the payment of the purchase
price, construction cost or improvement cost of the property, stock or
Debt or (3) that secure any Debt incurred prior to, at the time of, or
within one year after we or our Restricted Subsidiary acquired the
property, shares or Debt, completed the construction on or commenced
commercial operation of the property for the purpose of financing the
purchase price or construction cost,
o Mortgages existing at the date of the applicable indenture and
o any extension, renewal or replacement of any of the Mortgages
enumerated above that does not increase the Debt and that is limited
to all or a part of the same property, stock or Debt that secured the
original mortgage.
The restrictions discussed above also will not apply to (1) any gold-based
loan or forward sale arrangement and (2) Mortgages on property that we or any
Restricted Subsidiary own or lease to secure our or a Restricted Subsidiary's
proportionate share of any payments required to be made to any Person incurring
the expense of developing, exploring or conducting operations for the recovery,
processing or sale of the mineral resources of the property.
Limitation on Sales and Leasebacks
The indenture for the senior debt securities will prohibit us and any of
our Restricted Subsidiaries from entering into any arrangement with any third
party lender or investor under which we or any Restricted Subsidiary will lease
for a period, including renewals, in excess of three years, any Principal
Property if we or the Restricted Subsidiary sold or will sell or transfer the
Principal Property more than 270 days after the acquisition of the
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Principal Property or after completion of construction and commencement of full
operation of the Principal Property, to the lender or investor or to any person
to whom funds have been or will be advanced by the lender or investor on the
security of the Principal Property (herein referred to as a "sale and lease-back
transaction"), unless:
o we or any Restricted Subsidiary could create Debt secured by a
mortgage on the Principal Property to be leased back in an amount
equal to the Attributable Debt with respect to such sale and leaseback
transaction without equally and ratably securing the debt securities
of all series pursuant to the provisions of the covenant on limitation
on liens described above or
o we apply within 180 days after the sale or transfer an amount equal to
the greater of (1) the net proceeds of the sale of the Principal
Property sold and leased back pursuant to the arrangement or (2) the
fair market value of the Principal Property so sold and leased back at
the time of entering into the arrangement to:
(a) the purchase of different property, facilities or equipment which
has a value at least equal to the net proceeds of the sale or
(b) the retirement of our Funded Debt or that of a Restricted
Subsidiary (other than as a result of payment at maturity or pursuant to
any mandatory sinking fund or prepayment provision).
The amount to be applied to the retirement of Funded Debt, however, will be
reduced by:
o the principal amount of any debt securities of any series delivered
within 180 days after such sale to the trustee for retirement and
cancellation,
o if the debt securities of any series are original issue discount debt
securities or provide that an amount other than the face value is
payable upon maturity or a declaration of acceleration, the amount
that is due and payable with respect to such series pursuant to
Section 4.1 of each of the indentures delivered within 180 days after
such sale to the trustee for retirement and cancellation and
o the principal amount of Funded Debt, other than the debt securities,
voluntarily retired within 180 days after such sale.
Merger and Consolidation
Newmont Mining
We may consolidate or merge with or into any other entity and may sell,
transfer or lease all of our property or substantially all of our property to
any entity, if:
o the entity, if other than us, which resulted from or received the
property expressly assumes by supplemental indenture the due and
punctual payment of the principal of and any premium or interest on
the debt securities and the performance and observance of each
agreement to be performed or observed by us under the debt securities
and the indentures; and
o immediately after the completion of the transaction, no Event of
Default and no event which, after notice or lapse of time or both,
would become an Event of Default shall have occurred and be
continuing.
Newmont USA
Newmont USA may consolidate or merge with or into any other corporation and
may sell, transfer or lease all of its property or substantially all of its
property, if:
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o the entity, if other than Newmont USA, which resulted from or received
the property expressly assumes by supplemental agreement the due and
punctual performance and observance of each agreement to be performed
or observed by Newmont USA under the debt securities and the
indentures; and
o immediately after the completion of the transaction, no Event of
Default and no event which, after notice or lapse of time or both,
would become an Event of Default shall have occurred and be
continuing.
Event of Default
"Event of Default", when used in each of the indentures with respect to any
series of debt securities, will mean any of the following:
o failure to pay interest on any debt security of the series for 30 days
after it is due,
o failure to pay the principal or any premium on any debt security of
the series when it is due,
o failure to pay any sinking fund payment on any debt security of the
series when it is due,
o failure to perform any other covenant in the applicable indenture for
the benefit of the series of debt securities that continues for 90
days after we have been given written notice of that failure,
o events of bankruptcy, insolvency or reorganization of Newmont Mining
or Newmont USA.
o Newmont USA's guarantee of the debt securities of the series ceases to
be in full force or effect except as contemplated by the terms thereof
or Newmont USA denies or disaffirms its obligations under the
guarantee, or
o any other Event of Default specified for the series of debt
securities.
Within 90 days after a default occurs with respect to any series of debt
securities, the trustee must notify the holders of the debt securities of the
series of the default if we have not remedied it. Default is defined to include
the events listed above without any grace periods. The trustee may withhold
notice to the holders of the debt securities of any default except in the
payment of principal, premium, interest or sinking fund payment if it in good
faith considers the withholding of notice in the interest of all of the holders
of the debt securities of the series. We are required to file an annual
certificate with the trustee about any default by us under any provisions of the
applicable indenture.
If any Event of Default occurs and continues for any series of debt
securities, the trustee or the holders of at least 25% of the principal amount
of the debt securities of the outstanding series may declare the principal and
interest accrued on all the debt securities of that series to be due and payable
immediately. If this happens, subject to certain conditions, the holders of at
least a majority of the aggregate principal amount of the debt securities of
that series can annul the declaration. In addition, past defaults other than in
payments of principal and interest may also be waived by the same vote.
If an Event of Default occurs and continues for any series of debt
securities, the holders of at least a majority of the principal amount of the
affected series of debt securities then outstanding may direct the time, method
and place of conducting any proceeding or any remedy available to the trustee,
or exercising any power given to or conferred upon the trustee under the
indentures, for the series of debt securities.
The trustee does not have to exercise any of its rights or powers under
either of the indentures at the direction of any holders of notes unless the
holders offer the trustee reasonable indemnity or reasonable security against
expenses and liabilities.
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The Trust Indenture Act of 1939 requires that we file with the trustee
annually a written statement regarding the presence or absence of certain
defaults.
Defeasance
Defeasance and Discharge of Obligations
Under the indentures, Newmont Mining will be discharged from its
non-administrative obligations under the debt securities of any series, and
Newmont USA will be discharged from its obligations under the guarantee of debt
securities of that series, if we deposit with the trustee in trust sufficient
money and/or U.S. government securities to pay the interest and principal due on
the stated due date of those payments. This trust may only be established if,
among other things, we deliver to the trustee an opinion of counsel stating
that, due to an Internal Revenue Service ruling or a change in federal income
tax law, holders of the debt securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of this
defeasance and will be subject to federal income tax, as if this defeasance had
not occurred.
Defeasance of Certain Covenants and Certain Events of Default
The indenture for the senior debt securities provides that we may be
released from our obligation to comply with the covenants limiting liens and
sale and leaseback transactions, and with any related Event of Default if we
deposit with the trustee in trust money and/or U.S. government securities which
provide for payment of the principal of and each installment of interest on the
debt securities due on the stated maturity of such payments. Our other
obligations under the indenture and the senior debt securities of such series
and other Events of Default and Newmont USA's obligations under the related
guarantee would remain in full force and effect. The trust may only be
established if, among other things, we have delivered to the trustee an opinion
of counsel stating that the holders of the senior debt securities of such series
will not recognize income, gain, or loss for federal income tax purposes as a
result of a deposit and defeasance of the covenants and the Event of Default
noted above and will be subject to federal income tax as would have been the
case if such deposit and defeasance had not occurred.
If we exercise the option described in this section and the debt securities
of a series are declared due and payable because of the occurrence of an Event
of Default other than the Event of Default related to the covenants limiting
liens and sale and leaseback transactions, the amount of money and U.S.
government securities on deposit with the trustee will be sufficient to pay
amounts due on the senior debt securities of a series at the time of their
stated maturity but may not be sufficient to pay amounts due on the debt
securities of such series at the time of the acceleration resulting from the
Event of Default.
Changes to Indentures
Under each of the indentures, Newmont Mining, Newmont USA and the trustee
may modify the rights and obligations of Newmont Mining and Newmont USA and the
rights of the holders of debt securities with the consent of the holders of at
least a majority of the principal amount of the outstanding debt securities of
all series issued under the indentures affected by the modification. However, we
must get the consent of the holder of each debt security affected to make the
following changes to the debt securities:
o an extension of the fixed maturity of any debt security,
o a reduction of the principal amount payable on any debt security,
o a reduction in the rate of interest payable on any debt security,
o a change in currency in which payments are made,
o an extension of the time of payment of interest,
o a modification that affects adversely any right of a holder of a debt
security to repayment,
-25-
o a reduction in the principal amount of an original issue discount debt
security due and payable upon a acceleration of the maturity,
o an adverse change in or elimination of conversion rights,
o a reduction in the portion of the principal amount of a debt security
provable in bankruptcy,
o a reduction in amounts payable upon redemption,
o a reduction in the rate of interest payable on overdue amounts and
o a reduction in the percentage of holders of the outstanding debt
securities of each series required to consent to any modification
discussed above.
Under each of the indentures, we can make certain modifications to the
applicable indenture with the consent of the trustee but without the consent of
any holders of debt securities to evidence our merger, the replacement of the
trustee and for certain other purposes.
Duties and Powers of the Trustee
Except during the continuance of an Event of Default, the trustee under
each of the indentures will perform only the duties set forth in the applicable
indenture. During the continuance of any Event of Default, the trustee will
exercise the rights and powers given it under the applicable indenture, and use
the same degree of care and skill in their exercise, as a prudent man would
exercise or use under similar circumstances in the conduct of his own affairs.
The trustee may acquire and hold our securities and, subject to certain
conditions, otherwise deal with us as if it were not trustee.
We currently conduct banking transactions with the trustee in the ordinary
course of our business.
DESCRIPTION OF DEBT SECURITY WARRANTS
We may issue warrants for the purchase of debt securities. 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 debt
security warrant agreements between us and a bank or trust company as debt
security warrant agent. The debt security warrant agent will be our agent and
will not assume any obligations to any owner of the debt security warrants. We
have summarized below certain material provisions of the separate debt security
warrant agreements. This summary is qualified in its entirety by reference to
the debt security warrant agreement.
General
Under the debt security warrant agreement, the warrants may be issued in
one or more series. The prospectus supplement and the debt security 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 aggregate principal amount of related debt securities 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 debt securities,
o the expiration date of each warrant,
o the exercise date of each warrant,
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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 debt security warrant agent,
o the form of the debt security warrant certificates and
o any other terms of the warrant.
The warrants will be represented by certificates. The warrants may be
exchanged pursuant to the procedure outlined in the debt security 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
warrant is exercised, a holder will not be entitled to any payments on or have
any rights with respect to the debt securities issuable upon exercise of the
warrant.
Exercise of Debt Security Warrants
To exercise warrants, the holder must provide the debt security warrant
agent with the following:
o payment of the exercise price,
o certain information required by the reverse side of the warrant
certificates,
o the number of warrants to be exercised and
o an executed and completed warrant certificate.
The debt security warrant agent will issue a new warrant certificate for
any warrants not exercised. From time to time, we may reduce the exercise price.
Modification of the Debt Security Warrant Agreement
The debt security warrant agreement will permit us and the debt security
warrant agent, without the consent of the 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
o to add new provisions regarding certain matters or questions that we
and the debt security warrant agent may deem necessary or desirable
and which do not adversely affect the interests of the warrant
holders.
PLAN OF DISTRIBUTION
We may sell the securities described in this prospectus
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o through agents
o through underwriters or dealers or
o directly to one or more purchasers.
The distribution of the securities may be made from time to time in one or
more transactions at a fixed price or prices. The fixed price may be changed to
reflect market prices prevailing at the time of sale at negotiated prices.
Except for the common stock, the securities will have no established
trading market. Underwriters and agents to whom securities are sold for public
offering and sale may make a market in the securities, but will not be obligated
to do so and could stop doing so at any time without notice. We cannot guarantee
that there will be a market for the securities.
In connection with the sale of offered securities, underwriters may receive
compensation from us or from purchasers of offered securities for whom they may
act as agents in the form of discounts, concessions or commissions. Underwriters
may sell offered securities to or through dealers and such dealers may receive
compensation in the form of discounts, concessions and commissions from the
underwriters and commissions from the purchasers for whom they may act as
agents. Underwriters, dealers, agents or direct purchasers that participate in
the distribution of the offered securities may be underwriters as defined in the
Securities Act of 1933, and any discounts or commissions that we pay to them and
any profit on their resale of the offered securities may be treated as
underwriting discounts and commissions under the Securities Act of 1933. We will
identify any underwriters, dealers, agents or direct purchasers and describe
their compensation in the prospectus supplement.
We may have agreements with the underwriters, dealers and agents who
participate in the sale of offered securities to indemnify them against certain
civil liabilities, including liabilities under the Securities Act of 1933, or to
contribute with respect to payments which the underwriters, dealers or agents
may be required to make.
We may authorize agents, underwriters or dealers to solicit offers by
certain institutional investors to purchase debt securities which will be paid
for and delivered on a future date specified in the prospectus supplement. The
obligations of any purchasers under this delayed delivery and payment
arrangements will not be subject to any conditions except that the purchase at
delivery must not be prohibited under the laws of any jurisdiction in the United
States to which the institution is subject. The underwriters and dealers will
not have any responsibility for the validity and performance of these contracts.
LEGAL OPINION
White & Case LLP will issue for us an opinion about the legality of the
offered securities.
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 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
-28-
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 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 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;
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
-29-
other than the date on the front of those documents.
Newmont USA is our consolidated wholly owned subsidiary. Newmont USA is not
required to file separate reports with the SEC.
-30-
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.*
SEC filing fee....................................$ 46,000
Accounting fees and expenses......................$ 20,000
Legal fees and expenses ..........................$ 150,000
Warrant Agent's fees..............................$ 2,500
Transfer Agent's fees.............................$ 2,500
Trustee's fees....................................$ 10,000
Rating agency fees................................$ 200,000
Printing and engraving expenses...................$ 50,000
Miscellaneous ....................................$ 10,000
-----------
Total ............................................$ 441,000
===========
--------------------
*All estimates except for filing fee.
Item 15. Indemnification of Directors and Officers.
Article Tenth of each of the Certificates of Incorporation of Newmont
Mining Corporation and Newmont USA Limited 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 each of Newmont Mining and Newmont USA provide that each
person who at any time is or shall have been a director or officer of Newmont
Mining or Newmont USA, as the case may be, 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 or Newmont
USA, as the case may be, and his or her heirs, executors and administrators,
shall be indemnified by Newmont Mining or Newmont USA, as the case may be, 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 each of Newmont Mining
and Newmont USA 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 or Newmont USA, as the case may be, 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.
II-1
Item 16. Exhibits.
Exhibit
Number Description of Documents
1.1 Proposed form of Underwriting Agreement relating to the Common
Stock, the Preferred Stock, the Depositary Shares and the Common
Stock Warrants.
1.2 Proposed form of Underwriting Agreement relating to the Debt
Securities and the Debt Security Warrants.
4.1 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.
4.2 Certificate of Elimination of Series A Junior Participating
Preferred Stock of Newmont Mining Corporation. Incorporated by
reference to Exhibit 3.2 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.
4.3 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.
4.4 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.
4.5 Certificate of Designations of $3.25 Convertible Preferred 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 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
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.
4.7 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.
4.8 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
on February 15, 2002.
4.9 Indenture relating to the Senior Debt Securities, to be dated on
or about the date of first issuance of Senior Debt Securities
thereunder, among Newmont Mining Corporation, Newmont USA
II-2
Limited and Citibank, N.A., as trustee ("Citibank"), (including
the form of Senior Debt Securities) (the "Senior Indenture").
4.10 Indenture relating to the Subordinated Debt Securities, to be
dated on or about the date of first issuance of Subordinated Debt
Securities thereunder, among Newmont Mining Corporation, Newmont
USA Limited and Citibank,N.A., as trustee (including the form of
Subordinated Debt Securities) (the "Subordinated Indenture").
4.11 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.
12.1 Computation of Ratio of Earnings to Fixed Charges and Preferred
Stock Dividends for the five year period ended December 31, 2001.
Incorporated by reference to Exhibit 12 to Newmont Mining
Corporation's Annual Report on Form 10-K for the fiscal year
ended December 31, 2001.
12.2 Computation of Ratio of Earnings to Fixed Charges for the five
year period ended December 31, 2001. Incorporated by reference to
Exhibit 12 to Newmont Mining Corporation's Annual Report on Form
10-K for the fiscal year ended December 31, 2001.
12.3 Computation of Ratio of Earnings to Fixed Charges and Preferred
Stock Dividends for the three-month period ended March 31, 2002.
Incorporated by reference to Exhibit 12.1 to Newmont Mining
Corporation's Quarterly Report on Form 10-Q for the quarter ended
December 31, 2002.
12.4 Computation of Ratio of Earnings to Fixed Charges for the
three-month period ended March 31, 2002. Incorporated by
reference to Exhibit 12.2 to Newmont Mining Corporation's
Quarterly Report on Form 10-Q for the quarter ended March 31,
2002.
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 of Newmont
Mining Corporation.*
24.2 Power of Attorney of certain officers and directors of Newmont
USA Limited.*
24.3 Power of Attorney of the principal accounting officer of Newmont
Mining Corporation.
24.4 Power of Attorney of the principal accounting officer of Newmont
USA Limited.
24.5 Power of Attorney of a director of Newmont USA Limited.
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Citibank, N.A., as Indenture Trustee
under the Senior Indenture.*
II-3
25.2 Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Citibank, N.A., as Indenture Trustee
under the Subordinated Indenture.*
------------------------
* Previously filed.
Item 17. Undertakings.
The undersigned Registrants hereby undertake:
(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
Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by one of the Registrants pursuant to Section 13 or Section
15(d) of the 1934 Act 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 Act,
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 Act may be
permitted to directors, officers and controlling persons of the Registrants
pursuant to the foregoing provisions, or otherwise, the Registrants have 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
II-4
against such liabilities (other than the payment by one of the Registrants of
expenses incurred or paid by a director, officer or controlling person of such
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, such 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-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment to the Registration Statement 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, 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
*
----------------------
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
II-6
*
----------------------
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
*
----------------------
Bruce D. Hansen Senior Vice President and Chief June 18, 2002
Financial Officer
(Principal Financial Officer)
*
----------------------
David W. Peat Vice President and Global Controller June 18, 2002
(Principal Accounting Officer)
*By /s/ Britt D. Banks
--------------------------------
Britt D. Banks
As Attorney-in-fact
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment to the Registration Statement 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 USA LIMITED
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
*
-------------------------------
David H. Francisco Chairman of the Board and June 18, 2002
Director
/s/ Britt D. Banks
-------------------------------
Britt D. Banks Vice President, General Counsel, June 18, 2002
Secretary and Director
*
-------------------------------
Bruce D. Hansen President and Director June 18, 2002
(Principal Executive Officer and
Principal Financial Officer)
* Vice President and Global Controller June 18, 2002
-------------------------------
David W. Peat (Principal Accounting Officer)
*By /s/ Britt D. Banks
--------------------------------
Britt D. Banks
As Attorney-in-fact
II-8
EXHIBIT INDEX
Item 16. Exhibits.
Exhibit
Number Description of Documents
1.1 Proposed form of Underwriting Agreement relating to the Common
Stock, the Preferred Stock, the Depositary Shares and the Common
Stock Warrants.
1.2 Proposed form of Underwriting Agreement relating to the Debt
Securities and the Debt Security Warrants.
4.1 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.
4.2 Certificate of Elimination of Series A Junior Participating
Preferred Stock of Newmont Mining Corporation. Incorporated by
reference to Exhibit 3.2 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.
4.3 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.
4.4 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.
4.5 Certificate of Designations of $3.25 Convertible Preferred 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 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
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.
4.7 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.
4.8 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
on February 15, 2002.
4.9 Indenture relating to the Senior Debt Securities, to be dated on
or about the date of first issuance of Senior Debt Securities
thereunder, among Newmont Mining Corporation, Newmont USA Limited
and Citibank, N.A., as trustee ("Citibank"), (including the form
of Senior Debt Securities) (the "Senior Indenture").
4.10 Indenture relating to the Subordinated Debt Securities, to be
dated on or about the date of first issuance of Subordinated Debt
Securities thereunder, among Newmont Mining Corporation, Newmont
USA Limited and Citibank,N.A., as trustee (including the form of
Subordinated Debt Securities) (the "Subordinated Indenture").
4.11 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.
12.1 Computation of Ratio of Earnings to Fixed Charges and Preferred
Stock Dividends for the five year period ended December 31, 2001.
Incorporated by reference to Exhibit 12 to Newmont Mining
Corporation's Annual Report on Form 10-K for the fiscal year
ended December 31, 2001.
12.2 Computation of Ratio of Earnings to Fixed Charges for the five
year period ended December 31, 2001. Incorporated by reference to
Exhibit 12 to Newmont Mining Corporation's Annual Report on Form
10-K for the fiscal year ended December 31, 2001.
12.3 Computation of Ratio of Earnings to Fixed Charges and Preferred
Stock Dividends for the three-month period ended March 31, 2002.
Incorporated by reference to Exhibit 12.1 to Newmont Mining
Corporation's Quarterly Report on Form 10-Q for the quarter ended
December 31, 2002.
12.4 Computation of Ratio of Earnings to Fixed Charges for the
three-month period ended March 31, 2002. Incorporated by
reference to Exhibit 12.2 to Newmont Mining Corporation's
Quarterly Report on Form 10-Q for the quarter ended March 31,
2002.
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 of Newmont
Mining Corporation.*
24.2 Power of Attorney of certain officers and directors of Newmont
USA Limited.*
24.3 Power of Attorney of the principal accounting officer of Newmont
Mining Corporation.
24.4 Power of Attorney of the principal accounting officer of Newmont
USA Limited.
24.5 Power of Attorney of a director of Newmont USA Limited.
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Citibank, N.A., as Indenture Trustee
under the Senior Indenture.*
25.2 Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Citibank, N.A., as Indenture Trustee
under the Subordinated Indenture.*
------------------------
* Previously filed.