As filed with the Securities and Exchange Commission on April 25, 1994
Registration No. 33-
<TABLE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NEWMONT MINING CORPORATION
(Exact name of Registrant as specified in its charter)
<C> <C> <C>
Delaware 1700 Lincoln Street 13-1806811
(State or other jurisdiction of Denver, Colorado 80203 (I.R.S. Employer
incorporation or organization) (303) 863-7414 Identification No.)
(Address of principal executive offices)
December 18, 1992
Letter of Employment
(Full Title of Plan)
<PAGE>
Timothy J. Schmitt, Esq.
Newmont Mining Corporation
1700 Lincoln Street
Denver, Colorado 80203
(303) 863-7414
(Name, address and telephone number,
including area code, of agent for service)
Copies to:
Maureen Brundage, Esq.
White & Case
1155 Avenue of the Americas
New York, New York 10036
(212) 819-8200
</TABLE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of each Proposed maximum
class of Proposed maximum aggregate
securities to Amount to be offering price offering Amount of
be registered registered per share (1) price (1) registration fee
<S> <C> <C> <C> <C>
Common Stock, $1.60 74,886 $49.9375 $3,739,619.63 $1,289.52
par value . . . . . . . .
(1) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(h) and 457(c) under the
Securities Act of 1933, based upon the average of the high and low prices of the Common Stock as reported on the New York
Stock Exchange, Inc. on April 18, 1994.
</TABLE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The following reoffer prospectus filed as part of this
Registration Statement has been prepared in accordance with the
requirements of Part I of Form S-3 and, pursuant to General Instruction C
of Form S-8, may be used for reofferings and resales of the shares of
Common Stock held by the Selling Stockholder named in the prospectus which
shares were or will be acquired by the Selling Stockholder upon the
exercise by the Selling Stockholder of an option granted under a letter of
employment between Newmont Mining Corporation and the Selling Stockholder
dated December 18, 1992. The Registrant satisfies the registrant
requirements for use of Form S-3.
<PAGE>
Newmont Mining Corporation
74,886 Shares of
Common Stock
($1.60 par value)
This Prospectus relates to 74,886 shares (the "Shares") of common
stock, par value $1.60 per share (the "Common Stock"), of Newmont Mining
Corporation ("Newmont Mining" or the "Company") which may be offered from
time to time by the selling stockholder named herein (the "Selling
Stockholder"). The Shares have been or may be acquired by the Selling
Stockholder from the Company in a transaction not involving a public
offering within the meaning of Section 4(2) of the Securities Act of 1933,
as amended (the "Securities Act"), upon the exercise of a stock option (the
"Option") previously issued by the Company to the Selling Stockholder. The
Selling Stockholder is an officer of the Company and may be deemed an
affiliate of the Company (as defined in Rule 405 of the Securities Act).
See "Selling Stockholder." The Company will not receive any proceeds from
the sale of the Shares by the Selling Stockholder, although the Company
will receive the exercise price payable upon any exercise of the Option
under which the Shares are acquired by the Selling Stockholder.
The Shares may be sold from time to time to purchasers directly
by the Selling Stockholder. Alternatively, the Selling Stockholder may
sell the Shares in one or more transactions (which may involve one or more
block transactions) on the New York Stock Exchange, the Paris Bourse, or
the Basel, Geneva or Zurich Stock Exchanges, in sales occurring in the
public market off such exchanges, in separately negotiated transactions, or
in a combination of such transactions; each sale may be made either at
market prices prevailing at the time of such sale or at negotiated prices;
some or all of the Shares may be sold through brokers acting on behalf of
the Selling Stockholder or to dealers for resale by such dealers; and in
connection with such sales, such brokers or dealers may receive
compensation in the form of discounts or commissions from the Selling
Stockholder and/or the purchasers of such Shares for whom they may act as
broker or agent (which discounts or commissions are not anticipated to
exceed those customary in the types of transactions involved). All
expenses of registration incurred in connection with this offering are
being borne by the Company, but all brokerage commissions and other
expenses incurred by the Selling Stockholder will be payable by the Selling
Stockholder. See "Plan of Distribution."
The Selling Stockholder and any dealer participating in the
distribution of any Shares or any broker executing selling orders on behalf
of the Selling Stockholder may be deemed to be "underwriters" within the
meaning of the Securities Act, in which case any profit on the sale of any
or all of the Shares by the Selling Stockholder and any discounts or
commissions received by any such brokers or dealers may be deemed to be
underwriting discounts and commissions under the Securities Act.
The Common Stock of the Company is listed on the New York Stock
Exchange under the trading symbol "NEM." The Company's Common Stock also
is listed on the Paris Bourse and Swiss Stock Exchanges (Basel, Geneva and
Zurich). The last reported sales price of the Common Stock as reported on
the New York Stock Exchange Composite Tape on April 18, 1994 was $49.25 per
share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
<PAGE>
The date of this Prospectus is April 25, 1994
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
Available Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Information Incorporated by Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Selling Stockholder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Description of Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Certain Tax Considerations as a
Real Property Holding Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Validity of Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
</TABLE>
No dealer, salesman or any other person has been authorized to
give any information or to make any representations other than those
contained in this Prospectus and, if given or made, such information or
representations must not be relied upon as having been authorized by the
Company or the Selling Stockholder. Neither the delivery of this
Prospectus nor any sale made hereunder shall, under any circumstances,
create any implication that there has been no change in the affairs of the
Company since the date hereof or that the information contained herein is
correct as of any time subsequent to its date. This Prospectus does not
constitute an offer to sell or the solicitation of an offer to buy such
securities in any circumstances in which such offer or solicitation is
unlawful.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such
reports, proxy statements and other information can be inspected and copied
at the public reference facilities maintained by the Commission at
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the
following regional offices of the Commission: Seven World Trade Center,
Suite 1300, New York, New York 10048; Northwestern Atrium Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such
material can be obtained at prescribed rates by writing to the Commission,
Public Reference Section, 450 Fifth Street, N.W., Washington, D.C. 20549.
Such material can also be inspected at the offices of the New York Stock
<PAGE>
Exchange, Inc., 20 Broad Street, New York, New York 10005 on which exchange
the common stock of the Company is listed.
This Prospectus constitutes part of a registration statement
filed by the Company with the Commission under the Securities Act. This
Prospectus omits certain of the information contained in the registration
statement, and reference is hereby made to the registration statement and
to the exhibits relating thereto for further information with respect to
the Company and the Shares offered hereby. Any statements contained herein
concerning the provisions of any document are not necessarily complete,
and, in each instance, reference is made to the copy of such document filed
as an exhibit to the registration statement or otherwise filed with the
Commission. Each such statement is qualified in its entirety by such
reference.
INFORMATION INCORPORATED BY REFERENCE
The Company hereby incorporates by reference in this Prospectus
the Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1993 which has been filed with the Commission. All documents filed by
the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act after the date of this Prospectus and prior to the termination of the
offering of the Shares offered hereby shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of
filing of such documents. Any statement contained herein or in a document
all or a portion of which is incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes
of this Prospectus to the extent that a statement contained herein or in
any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person, including
beneficial owners, to whom a copy of this Prospectus has been delivered, on
the request of any such person, a copy of any or all of the documents
referred to above which have been or may be incorporated in this Prospectus
by reference, other than exhibits to such documents (unless such exhibits
are specifically incorporated by reference into such documents). Request
for such copies should be directed to the Office of the Secretary, Newmont
Mining Corporation, 1700 Lincoln Street, Denver, Colorado 80203, telephone:
(303) 863-7414.
THE COMPANY
Newmont Mining Corporation is a U.S. company whose sole asset is
a controlling equity interest in Newmont Gold Company ("NGC"). NGC is a
worldwide company engaged in gold production, exploration for gold and
acquisition of gold properties. Newmont Mining owns 89.22% of the common
stock, 100% of the preferred stock and an option to purchase additional
shares of the common stock of NGC.
NGC is the Company's sole subsidiary or interest. Based on 1993
production as set forth in published reports, NGC is the largest producer
of gold from North American operations. NGC produces gold on the Carlin
Trend in Nevada. NGC also produces gold through a 38% owned joint venture
in Peru, which commenced operations in August 1993. NGC additionally has a
50% owned joint venture in Uzbekistan and an 80% owned joint venture in
Indonesia, both of which are scheduled to commence gold production in 1995.
NGC also owns 100% of Newmont Exploration Limited ("NEL"), which, together
with various other affiliates, explores worldwide for gold. Management
<PAGE>
believes that NGC's 1994 exploration and development budget is one of the
largest in the minerals industry based on published information.
Newmont Mining, incorporated in 1921, under the laws of Delaware,
maintains its principal executive offices at 1700 Lincoln Street, Denver,
Colorado 80203 (telephone: 303-863-7414).
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of
the Shares by the Selling Stockholder. However, the Company will receive
the exercise price payable upon any exercise of the Option under which the
Shares are acquired by the Selling Stockholder.
SELLING STOCKHOLDER
The Selling Stockholder, Wayne W. Murdy, has been the Senior Vice
President and Chief Financial Officer of the Company and NGC since December
31, 1992. The 74,886 Shares which may be offered from time to time
pursuant hereto by the Selling Stockholder represent shares of Common Stock
that have been or may be acquired by the Selling Stockholder upon the
exercise of the Option. The Option was granted to him by the Company on
December 31, 1992, pursuant to the terms of a letter of employment dated
December 18, 1992, in "transactions not involving any public offering"
within the meaning of Section 4(2) of the Securities Act. All of the share
and price information set forth in this Prospectus has been adjusted to
give effect to a 1.2481 shares to 1 share stock split declared by the
Company on March 21, 1994, payable on April 21, 1994 (the "Stock Split").
The Selling Stockholder currently owns 6,962 shares of Common
Stock of the Company (6,115 of which were issued upon partial exercise of
the Option) and holds options to acquire additional shares of Common Stock
(including the Option) as described below.
Under the Option, the Selling Stockholder had the right to
purchase, subject to the vesting requirements described below, 74,886
shares of Common Stock at a purchase price of $29.55 per share, subject to
adjustment as provided in the Option, provided that such right can only be
exercised if the price of the Common Stock is at least $36.94. The right
to purchase 14,977 shares of Common Stock under the Option vested on
April 28, 1993 and the right to purchase an additional 14,977 shares will
vest on each April 28 thereafter until April 28, 1997, on which date the
right to purchase an additional 14,978 shares will vest. As of April 21,
1994, (i) a total of 6,115 shares of Common Stock have been acquired by the
Selling Stockholder as a result of the partial exercise of the Option,
which shares are still held by the Selling Stockholder and (ii) a total of
68,771 shares of Common Stock remain to be issued upon exercise of the
Option.
In addition to the Option, the Selling Stockholder was granted an
option under the Company's 1992 Key Employee Stock Plan. Under this
option, the Selling Stockholder had the right to purchase, subject to the
vesting requirements described below, 74,886 shares of the Company's Common
Stock, of which the right to purchase 14,977 shares (at an exercise price
of $40.07) vested on June 23, 1993 and the right with respect to an
additional 14,977 shares (at an exercise price ranging from $44.07 to
$56.09, depending on the date of vesting) will vest on each June 23
thereafter until June 23, 1997, on which date the right to purchase an
additional 14,978 shares will vest. As a result of a partial exercise of
this option, 66,026 shares of the Company's Common Stock remain issuable
<PAGE>
upon exercise of this option, subject to the vesting requirements described
above.
The Selling Stockholder beneficially owns no other shares of
Common Stock of the Company except as described in the preceding
paragraphs. Subsequent to the sale of the Shares offered hereby, the
Selling Shareholder will own any shares of Common Stock issued to him upon
exercise of the option described in the preceding paragraph that have not
been sold by him and the Selling Stockholder will have the right to acquire
additional shares of Common Stock under such option to the extent such
right has not already been exercised and subject to the vesting provisions
described above.
DESCRIPTION OF CAPITAL STOCK
The authorized capital of the Company consists of 5,000,000
shares of Preferred Stock, par value $5.00 per share, issuable in series,
of which 2,875,000 shares of $5.50 Convertible Preferred Stock, par value
$5.00 per share (the "$5.50 Convertible Preferred Stock") were issued and
outstanding as of March 24, 1994 and 240,000 shares of Series A Junior
Participating Preferred Stock, par value $5.00 per share (the "Junior
Preferred Shares") were reserved for issuance as of March 24, 1994, and
120,000,000 shares of Common Stock, par value $1.60 per share, of which
85,848,405 (adjusted to give effect to the 1.2481 shares to 1 share stock
split payable on April 21, 1994 to stockholders of record on March 31,
1994) were issued and outstanding as of March 24, 1994 and are fully paid
and non-assessable. Holders of the Company's capital stock have no
preemptive rights.
DESCRIPTION OF COMMON STOCK
The statements set forth below are summaries of certain
provisions relating to the Common Stock of the Company. These summaries
contain all material provisions, but do not purport to be complete and are
subject to, and are qualified in their entirety by, the provisions of the
Company's Restated Certificate of Incorporation, a copy of which is filed
as an exhibit to the Registration Statement of which this Prospectus forms
a part.
Dividend Rights
Subject to the prior rights as to dividends of any Preferred
Stock which may be outstanding from time to time, the Common Stock is
entitled to such dividends as may be declared by the Board of Directors out
of funds legally available therefor.
Voting Rights
Subject to the voting rights, if any, of any Preferred Stock
which may be outstanding from time to time, all voting rights are vested in
the holders of shares of the Common Stock, each share being entitled to one
vote.
Liquidation Rights
Subject to the prior rights of creditors and the holders of any
Preferred Stock which may be outstanding from time to time, the shares of
Common Stock are entitled, in the event of voluntary or involuntary
liquidation, dissolution or winding up, to share pro rata in the
distribution of all remaining assets.
Approval of Certain Mergers, Consolidations, Sales and Leases
<PAGE>
Article NINTH of the Company's Restated Certificate of
Incorporation provides that, with certain exceptions noted below, the
affirmative vote of the holders of four-fifths of all classes of stock of
the Company entitled to vote in elections of directors (considered as one
class) shall be required (a) for the adoption of an agreement for the
merger or consolidation of the Company with any other corporation, or (b)
to authorize any sale or lease of all or any substantial part of the assets
of the Company to, or any sale or lease to the Company or any subsidiary
thereof in exchange for securities of the Company of any assets (except
assets having an aggregate fair market value of less than $10 million) of,
any other corporation, person or entity if, in either case, such other
corporation, person or entity is the beneficial owner, directly or
indirectly, of more than 10% of all outstanding shares of stock of the
Company entitled to vote in elections of directors (a "10% Holder"). Such
affirmative vote or consent shall be in addition to the vote of the holders
of the stock of the Company otherwise required by law or any agreement
between the Company and any national securities exchange.
For the purposes of Article NINTH, any corporation, person or
entity shall be deemed to be the beneficial owner of any shares of stock of
the Company (i) which it has the right to acquire pursuant to any
agreement, or upon exercise of conversion rights, warrants or options, or
otherwise, or (ii) which are beneficially owned, directly or indirectly by
any other corporation, person or entity, with which it or its affiliates or
associates (as defined in the Restated Certificate of Incorporation) have
any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of stock of the Company, or which is its
affiliate or associate.
Article NINTH does not apply to any transaction with any other
corporation, person or entity (i) if the Board of Directors of the Company
has approved a memorandum of understanding with such other corporation,
person or entity with respect to such transaction prior to the time that
such other corporation, person or entity shall have become a 10% Holder or
(ii) in case of a corporation, if the Company and its subsidiaries own a
majority of the outstanding shares of all classes of stock entitled to vote
in elections of directors. Article NINTH can be altered or repealed only
upon the affirmative vote of the record holders of four-fifths of all
classes of stock of the Company entitled to vote in elections of directors,
considered as one class.
Article NINTH might be characterized as an anti-takeover
provision since it may render more difficult certain possible takeover
proposals to acquire control of the Company and make removal of management
of the Company more difficult.
Equal Value Rights Plan
Each outstanding share of Common Stock carries with it a dividend
distribution of one equal value right (an "Equal Value Right"). The terms
of the Equal Value Rights are set forth in a Rights Agreement, dated as of
September 23, 1987, as amended (the "Equal Value Rights Agreement"),
between the Company and Chemical Bank, as Rights Agent. The following is a
summary of the Equal Value Rights Agreement. This summary contains all
material provisions, but does not purport to be complete and is subject to,
and is qualified in its entirety by reference to, the provisions of the
Equal Value Rights Agreement. A copy of the Equal Value Rights Agreement
and the amendments thereto are filed as exhibits to the Registration
Statement of which this Prospectus forms a part.
Each Equal Value Right entitles the record holder to receive from
the Company on or after the date of any Extraordinary Transaction (as
hereinafter defined) an amount in cash equal to the amount, if any, by
<PAGE>
which the Equal Value Price (as hereinafter defined) exceeds the sum of the
cash consideration and the fair market value of the non-cash consideration
paid for each share of Common Stock in the Extraordinary Transaction.
Unless earlier redeemed or unless an Extraordinary Transaction has
theretofore occurred, the Equal Value Rights will expire at the close of
business on September 23, 1997.
The term "Extraordinary Transaction" means an event in which,
within two years of the Control Date (as hereinafter defined) the Company,
directly or indirectly, effects a merger, consolidation or other
extraordinary corporate transaction in which the Common Stock is changed
into or exchanged for securities, cash or other property. The term "Equal
Value Price" means the highest price per share paid by a Controlling Person
(as hereinafter defined) for any share of Common Stock acquired by it
within 91 days prior to and including the Control Date, as such price is
adjusted pursuant to the Equal Value Rights Agreement.
The Equal Value Rights are evidenced by the certificates
representing outstanding shares of Common Stock, and no certificates
representing the Equal Value Rights have been distributed. The Equal Value
Rights will separate from the Common Stock and an Equal Value Distribution
Date will occur on the first date of public announcement by the Company or
a person (a "Controlling Person") who, together with all Affiliates and
Associates (as each term is defined in the Equal Value Rights Agreement) of
such person, shall be the beneficial owner of securities entitled to cast
50% or more of the votes in the election of directors of the Company, that
a Controlling Person has become such (a "Control Date"). Until the Equal
Value Distribution Date, (i) the Equal Value Rights will be evidenced by
the Common Stock certificates and will be transferred with and only with
such Common Stock certificates, and (ii) the transfer of any outstanding
Common Stock certificates will also constitute the transfer of the Equal
Value Rights associated therewith.
Until an Equal Value Right is exercised, the holder thereof, as
such, has no rights as a stockholder of the Company. At any time until a
Control Date, the Company may (but only with the concurrence of a majority
of the Continuing Directors (as defined in the Equal Value Rights
Agreement)) redeem the Equal Value Rights in whole, but not in part, at a
price of $0.02 per Equal Value Right.
The Equal Value Rights may have certain anti-takeover effects in
the event that a person or group proposes to acquire the Company in a
two-tier transaction in which all stockholders do not receive the same
price for their shares.
Stockholder Rights Plan
Each outstanding share of Common Stock carries with it one
preferred share purchase right (each a "Right"). The terms of the Rights
are set forth in a Rights Agreement, dated as of August 30, 1990, and
amendments thereto (as so amended, the "Rights Agreement") between the
Company and Chemical Bank, as Rights Agent. The following is a summary of
the terms of the Rights Agreement. This summary contains all material
provisions, but does not purport to be complete and is subject to, and is
qualified in its entirety by reference to, the provisions of the Rights
Agreement. A copy of the Rights Agreement and the amendments thereto are
filed as exhibits to the Registration Statement of which this Prospectus
forms a part.
Following the Distribution Date referred to below and except as
described below, each Right entitles the registered holder to purchase from
the Company one five-hundredth of a share (a "Preferred Share Fraction") of
the Series A Junior Participating Preferred Stock, par value $5.00 per
<PAGE>
share, of the Company (the "Junior Preferred Shares"), at a purchase price
of $150 per Preferred Share Fraction, subject to adjustment (the "Purchase
Price"). Unless earlier redeemed by the Company or unless a transaction
described in Section 13(d) of the Rights Agreement has occurred, the Rights
will expire at the close of business on September 11, 2000 (the "Final
Expiration Date").
Ownership of the Rights is evidenced by the Common Stock
certificates representing shares then outstanding, and no separate
certificates representing the Rights have been distributed. The Rights
will separate from the Common Stock and a Distribution Date will occur upon
the earlier of (i) the close of business on the tenth day after the date of
a public announcement that a person (other than any Exempt Person (as
defined in the Rights Agreement)) or group of affiliated or associated
persons (an "Acquiring Person") has acquired, or obtained the right to
acquire, beneficial ownership of 15% or more of the outstanding Common
Stock (the "Stock Acquisition Date"), or (ii) the close of business on the
tenth business day after the date of the commencement of a tender offer or
exchange offer that would result in a person or entity beneficially owning
15% or more of the outstanding Common Stock. Until a Distribution Date, (i)
the Rights will be evidenced by the Common Stock certificates and will be
transferred with and only with such Common Stock certificates and (ii) the
transfer of any outstanding Common Stock certificates will also constitute
a transfer of the Rights associated therewith.
Except in the circumstances described below, after the
Distribution Date each Right will be exercisable into a Preferred Share
Fraction. Each Preferred Share Fraction carries voting and dividend rights
that are intended to produce the equivalent of one share of Common Stock,
which rights are subject to adjustment in the event of stock dividends,
subdivisions and combinations with respect to the Common Stock. In lieu of
issuing certificates for fractions of Junior Preferred Shares (other than
fractions which are integral multiples of one five-hundredth of a share),
the Company may pay cash in accordance with the Rights Agreement.
If a person becomes an Acquiring Person other than pursuant to
certain Board approved tender or exchange offers, each holder of a Right,
at any time following the Distribution Date, has the right to receive, upon
exercise, Common Stock (or, in certain circumstances, cash, property or
other securities of the Company) having a value equal to two times the
Purchase Price of the Right. In lieu of requiring payment of the Purchase
Price upon exercise of the Right following any such event, the Company may
provide that each Right be exchanged for one share of Common Stock (or
cash, property or other securities, as the case may be). Following the
occurrence of the event set forth in the first sentence of this paragraph,
all Rights that are, or (under certain circumstances specified in the
Rights Agreement) were, beneficially owned by any Acquiring Person will be
null and void.
In the event that, at any time following the Stock Acquisition
Date, (i) the Company is acquired in a merger or other business combination
transaction in which the Company is not the surviving corporation (other
than pursuant to certain Board approved tender or exchange offers), or (ii)
50% or more of the Company's assets or earning power is sold or trans-
ferred, each holder of a Right (except Rights that previously have been
voided as set forth above) has the right to receive, upon exercise, common
stock of the acquiring company having a value equal to two times the
Purchase Price of the Right.
The Purchase Price payable, and the number of Preferred Share
Fractions or other securities or property issuable, upon exercise of the
Rights is subject to adjustment to prevent dilution as a result of certain
events described in the Rights Agreement.
<PAGE>
Until a Right is exercised, the holder thereof, as such, has no
rights as a stockholder of the Company. At any time until the earlier of
(i) the Stock Acquisition Date and (ii) the Final Expiration Date (but in
certain circumstances only with the concurrence of Continuing Directors (as
defined in the Rights Agreement)), the Company has the option to redeem the
Rights in whole, but not in part, at a price of $0.01 per Right.
The Rights have certain anti-takeover effects. The Rights may
cause substantial dilution to a person or group that attempts to acquire
the Company without conditioning the offer on the Rights being redeemed or
a substantial number of Rights being acquired. The Rights should not
interfere with any merger or other business combination approved by the
Board of Directors of the Company because the Rights are either redeemable
or do not go into effect under such circumstances.
DESCRIPTION OF PREFERRED STOCK
The statements set forth below are summaries of certain
provisions relating to the Preferred Stock of the Company. These summaries
contain all material provisions, but do not purport to be complete and are
subject to, and are qualified in their entirety by, the provisions of the
Company's Restated Certificate of Incorporation and the Certificate of
Designations for both the $5.50 Convertible Preferred Stock and the Junior
Preferred Shares described below, copies of which are filed as exhibits to
the Registration Statement of which this Prospectus forms a part.
General
The Company's Restated Certificate of Incorporation (the
"Certificate of Incorporation") authorizes the issuance of 5,000,000 shares
of Preferred Stock in one or more series. The Board of Directors has the
power to fix various terms with respect to each series of Preferred Stock,
including voting powers, designations, preferences, relative rights,
qualifications, limitations and restrictions as set forth in resolutions
providings for the issue thereof adopted by the Board of Directors or a
duly authorized commission thereof. The $5.50 Convertible Preferred Stock
and the Junior Preferred Shares that may be issued in connection with the
Company's Shareholder Rights Plan (see "Description of Common Stock --
Shareholder Rights Plan" and "Description of Preferred Stock -- Junior
Preferred Shares") are the only series of Preferred Stock that the Board of
Directors of the Company has authorized for issuance by the Company.
The Preferred Stock offered hereby shall have the dividend,
liquidation, redemption, conversion and voting rights set forth below
unless otherwise provided in the Prospectus Supplement relating to a parti-
cular series of the Preferred Stock. Reference is made to the Prospectus
Supplement relating to the particular series of the Preferred Stock offered
thereby for specific terms, including: (i) the title and stated value per
share of such Preferred Stock and the number of shares offered; (ii) the
price at which such Preferred Stock will be issued; (iii) the dividend rate
(or method of calculation), the dates on which dividends shall be payable,
whether such dividends shall be cumulative or noncumulative and, if
cumulative, the dates from which dividends shall commence to cumulate; (iv)
any redemption or sinking fund provisions of such Preferred Stock; (v) whe-
ther or not such Preferred Stock will be convertible into shares of Common
Stock of the Company and, if so, the terms thereof; and (vi) any additional
dividend, liquidation, redemption, sinking fund and other rights,
preferences, privileges, limitations and restrictions of such Preferred
Stock.
The Preferred Stock will, when issued, be fully paid and
nonassessable. The Preferred Stock will rank senior with respect to the
<PAGE>
payment of dividends and the distribution of assets upon liquidation to any
Junior Preferred Shares and any series of Preferred Stock which by its
terms is expressly made junior to the Preferred Stock. Each series of
Preferred Stock offered hereby will rank on a parity with respect to the
payment of dividends and the distribution of assets upon liquidation with
the $5.50 Convertible Preferred Stock and any other outstanding series of
Preferred Stock, Junior Preferred Shares and any series of Preferred Stock
which by its terms is expressly made junior to the Preferred Stock offered
hereby.
$5.50 Convertible Preferred Stock
General. As of March 24, 1994, a total of 2,875,000 shares of
the $5.50 Convertible Preferred Stock were issued and outstanding. All of
the outstanding shares of $5.50 Convertible Preferred Stock are held on
deposit under the Deposit Agreement, dated as of November 15, 1992 (the
"Deposit Agreement"), among the Company, Chemical Bank, as Depositary (the
"Depositary"), and all holders from time to time of depositary receipts
issued thereunder (the "Depositary Receipts").
Ranking. The $5.50 Convertible Preferred Stock ranks senior with
respect to the payment of dividends and the distribution of assets upon
liquidation to any Junior Preferred Shares and any series of Preferred
Stock which by its terms is expressly made junior to the $5.50 Convertible
Preferred Stock. The $5.50 Convertible Preferred Stock will rank on a par-
ity with respect to the payment of dividends and the distribution of assets
upon liquidation with any other series of Preferred Stock Junior Preferred
Shares and any series of Preferred Stock which by its terms is expressly
made junior to the Preferred Stock offered hereby.
Dividend Rights. The holders of shares of the $5.50 Convertible
Preferred Stock are entitled to receive, when, as and if declared by the
Board of Directors of the Company, out of funds of the Company legally
available for payment, cumulative dividends at an annual rate of $5.50 per
share, payable quarterly on each March 15, June 15, September 15 and Decem-
ber 15. Dividends on the $5.50 Convertible Preferred Stock accrue and are
cumulative from the date of its original issue and are payable to the
holder of record on such respective record dates as may be fixed by the
Board of Directors in advance of the payment of each dividend. After full
cumulative dividends on the $5.50 Convertible Preferred Stock for all past
and current quarterly dividend periods have been paid in full, the $5.50
Convertible Preferred Stock is not entitled to participate with the Common
Stock in any further distributions of the Company.
Unless full cumulative dividends on the $5.50 Convertible
Preferred Stock have been paid, or declared and set aside for payment, no
dividends (other than in Common Stock or any other stock ranking junior to
the $5.50 Convertible Preferred Stock as to the distribution of assets and
the payment of dividends) may be paid or declared or other distribution
made upon the Common Stock or on any other stock of the Company ranking
junior to the $5.50 Convertible Preferred Stock as to the distribution of
assets and the payment of dividends nor may any Common Stock or any other
stock of the Company ranking junior to the $5.50 Convertible Preferred
Stock as to the distribution of assets and the payment of dividends be
redeemed or purchased by the Company (other than in exchange for Common
Stock or any other stock ranking junior to the $5.50 Convertible Preferred
Stock as to the distribution of assets and the payment of dividends) or any
payment made to or available for a sinking fund for the redemption of any
share of such stock.
Voting Rights. Except for the voting rights described below and
except as otherwise provided by law, the holders of shares of $5.50
<PAGE>
Convertible Preferred Stock are not entitled to vote on any matter or to
receive notice of, or to participate in, any meeting of stockholders of the
Company. If six quarterly dividends payable on the $5.50 Convertible
Preferred Stock, or on any other Preferred Stock entitled to receive
cumulative dividends, are in default, the number of directors of the
Company will be increased by two and the holders of all outstanding shares
of such cumulative Preferred Stock as to which such default shall exist,
voting as a single class, will be entitled to elect the additional two
directors until all such cumulative dividends have been paid in full or set
apart for payment on each cumulative series then entitled to vote.
Liquidation Rights. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the holders of $5.50
Convertible Preferred Stock will be entitled to receive out of the assets
of the Company available for distribution to stockholders $100.00 per share
in cash plus accrued and unpaid dividends before any distribution is made
to the holders of the Common Stock or any other stock of the Company
ranking junior to the $5.50 Convertible Preferred Stock as to the
distribution of assets upon liquidation, dissolution or winding up of the
affairs of the Company.
Conversion Rights. Shares of $5.50 Convertible Preferred Stock
will be convertible at any time at the option of the holder thereof into
such number of whole shares of Common Stock as is equal to the aggregate
liquidation preference of the shares of $5.50 Convertible Preferred Stock
surrendered for conversion divided by the conversion price of $36.395 per
share of Common Stock, subject to adjustment in certain events as provided
in the Certificate of Designation for the $5.50 Convertible Preferred
Stock.
Optional Redemption. The $5.50 Convertible Preferred Stock will
not be redeemable prior to November 15, 1995. Thereafter the $5.50
Convertible Preferred Stock may be redeemed, in whole or in part, at the
option of the Company, at a redemption price declining from $103.85 per
share for redemptions occurring on or after November 15, 1995 to $100.00
per share for redemptions occurring on or after November 15, 2001, plus, in
each case, accrued and unpaid dividends to and including the date fixed for
redemption.
Effect of Mergers, Consolidations, Sales and Leases. Except as
otherwise provided in the Certificate of Designations for the $5.50
Convertible Preferred Stock in the event of any recapitalization of shares
of Common Stock, any consolidation or merger of the Company with or into
another person or any merger of another person into the Company, any sale
or transfer of all or substantially all of the assets of the Company and
its consolidated subsidiaries, or any compulsory share exchange, pursuant
to any of which holders of Common Stock shall be entitled to receive other
securities, cash or other property, then appropriate provision shall be
made so that the holder of each share of $5.50 Convertible Preferred Stock
then outstanding shall have the right thereafter to convert such share at
the conversion price, subject to adjustment as provided in the Certificate
of Designation, into (except, in certain events, as otherwise provided in
the Certificate of Designation) the kind and amount of securities, cash and
other property that would have been receivable upon such transaction by a
holder of the number of shares of Common Stock issuable upon conversion of
such share of $5.50 Convertible Preferred Stock immediately prior to such
transaction.
Depositary Shares. The following is a summary of the Depositary
Agreement. The summary contains all material provisions, but does not
purport to be complete and is subject to, and is qualified in its entirety
by, the provisions of the Deposit Agreement, a copy of which is filed as an
<PAGE>
exhibit to the Registration Statement of which this Prospectus forms a
part.
Pursuant to the Deposit Agreement, depositary shares (the
"Depositary Shares"), each evidencing one-half share of $5.50 Convertible
Preferred Stock, were issued. As of March 24, 1994, a total of 5,750,000
Depositary Shares were outstanding. Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share is entitled, in proportion to
the applicable fraction of a share of $5.50 Convertible Preferred Stock
represented by such Depositary Share, to all the rights, preferences and
privileges of the $5.50 Convertible Preferred Stock represented thereby
(including dividend, voting, conversion, redemption and liquidation
rights), and subject to all of the limitations of the $5.50 Convertible
Preferred Stock represented thereby, contained in the Company's Restated
Certificate of Incorporation and the Certificate of Designation for the
$5.50 Convertible Preferred Stock and summarized above.
The Depositary acts as transfer agent and registrar and paying
agent for the payment of dividends with respect to the Depositary Shares.
Whenever the Company redeems shares of $5.50 Convertible
Preferred Stock held by the Depositary, the Depositary will redeem as of
the same redemption date the number of Depositary Shares representing
shares of the $5.50 Convertible Preferred Stock so redeemed, provided the
Company shall have delivered to the Depositary cash sufficient to effect a
redemption of the $5.50 Convertible Preferred Stock to be redeemed. Each
Depositary Share will be redeemable for one-half of the amount payable with
respect to each share of $5.50 Convertible Preferred Stock.
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the $5.50 Convertible Preferred Stock
to the record holders of Depositary Receipts in proportion to the number of
such Depositary Shares owned by such holders on the relevant record date.
In the event of an offering to holders of $5.50 Convertible Preferred Stock
of rights, preferences or privileges to subscribe for any securities or any
other rights, preferences or privileges, the Depositary will make such
rights, preferences or privileges available to the record holders of
Depositary Receipts entitled thereto, unless the Company determines that it
is not lawful or feasible to make such rights, preferences or privileges
available to some or all holders of Depositary Receipts. The amount
distributed in any of the foregoing cases will be reduced by any amount
required to be withheld by the Company or the Depositary with respect to
tax liability.
Each record holder of Depositary Shares has the right, at his
option, to surrender Depositary Receipts representing one or more whole
shares of $5.50 Convertible Preferred Stock with written instructions to
the Depositary to convert a number of underlying whole shares of $5.50
Convertible Preferred Stock which such Depositary Shares represent into
shares of the Company's Common Stock at any time. No fractional shares of
Common Stock will be issued upon conversion, and in lieu thereof an amount
will be paid in cash by the Company equal to the market value of the
fractional interest.
Upon receipt of notice of any meeting at which holders of $5.50
Convertible Preferred Stock are entitled to vote, the Depositary will mail
the information contained in such notice of meeting to the record holders
of Depositary Receipts. Each record holder of Depositary Receipts on the
record date (which will be the same date as the record date for the $5.50
Convertible Preferred Stock) will be entitled to instruct the Depositary as
to the exercise of the voting right pertaining to the number of shares of
$5.50 Convertible Preferred Stock (or fraction thereof) represented by such
holder's Depositary Shares. The Depositary will endeavor, insofar as
<PAGE>
practicable, to vote the number of shares of $5.50 Convertible Preferred
Stock (or fraction thereof) represented by such Depositary Shares in
accordance with such instructions, and the Company has agreed to take all
reasonable action which may be deemed necessary by the Depositary in order
to enable the Depositary to do so. The Depositary will not vote the shares
of $5.50 Convertible Preferred Stock to the extent it does not receive
specific written instructions from the holders of Depositary Receipts
representing such shares of $5.50 Convertible Preferred Stock.
The form of Depositary Receipts and any provision of the Deposit
Agreement may at any time be amended by agreement between the Company and
the Depositary. However, any amendment which materially and adversely
alters the rights of holders of Depositary Receipts will not take effect
unless such amendment has been approved by the holders of at least a
majority of the Depositary Shares then outstanding.
The Deposit Agreement may be terminated by the Company or the
Depositary only after (i) all outstanding Depositary Shares have been
redeemed and all shares of Common Stock, cash and other property shall have
been distributed to holders of Depositary Shares; (ii) there has been a
final distribution in respect of the $5.50 Convertible Preferred Stock in
connection with any voluntary or involuntary liquidation, dissolution or
winding-up of the Company and such distribution has been distributed to the
holders of the Depositary Shares; or (iii) each share of $5.50 Convertible
Preferred Stock has been converted into shares of Common Stock and all
shares of Common Stock, cash and other property have been distributed to
holders of Depositary Shares.
Junior Preferred Shares
General. A total of 240,000 shares of Junior Preferred Shares
have been reserved for issuance upon exercise of the Rights. See
"Description of Common Stock -- Stockholder Rights Plan."
Dividend Rights. Each Junior Preferred Share has a preferential
quarterly dividend payable on the first day of January, April, July and
October of each year (or such other quarterly payment date as shall be
specified by the Board of Directors) in an amount equal to 500 times the
dividend (other than a stock dividend) declared on each share of Common
Stock, but in no event less than $1.00.
Voting Rights. Each Junior Preferred Share will have 500 votes,
subject to adjustment as provided in the Certificate of Designations for
the Junior Preferred Shares, on all matters submitted to a vote of the
stockholders of the Company and, except as provided in the Certificate of
Designations for the Junior Preferred Shares, the Company's Restated
Certificate of Incorporation or by law, the holders of Junior Preferred
Shares shall vote together as one class.
Liquidation Rights. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the holders of
Junior Preferred Shares will receive a preferred liquidation payment per
share equal to the greater of $500 per share (plus accrued dividends to the
date of distribution, whether or not earned or declared) or an amount per
share equal to 500 times the aggregate payment made per each share of
Common Stock, in each case subject to adjustment as provided in the
Certificate of Designations for the Junior Preferred Shares.
Effect of Mergers, Consolidations, Sales and Leases. In the
event of any merger, consolidation, combination or other transaction in
which shares of Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, each Junior Preferred Share
will be similarly exchanged or changed in an amount per share equal to 500
<PAGE>
times the aggregate amount and type of consideration received per share of
Common Stock, subject to adjustment as provided in the Certificate of
Designations for the Junior Preferred Shares.
Ranking of Junior Preferred Shares. The Junior Preferred Shares
rank junior to all other series of the Company's Preferred Stock as to the
payment of dividends and the distribution of assets, unless the terms of
any such series shall provide otherwise.
FEDERAL TAX CONSIDERATIONS AS A
REAL PROPERTY HOLDING CORPORATION
For purposes of this discussion, a "Non-U.S. Holder" is any
holder who, for U.S. Federal income tax purposes, is a foreign corporation,
a nonresident alien individual, an estate or trust other than an estate or
trust the income of which is subject to U.S. Federal income taxation
regardless of its source, or a foreign partnership.
Under current provisions of the Internal Revenue Code of 1986, as
amended (the "Code") and Treasury Regulations thereunder, gain realized by
a Non-U.S. Holder on a disposition of certain interests in a corporation
that has, within a specified time period, been a "United States real
property holding corporation" is, under certain circumstances, subject to
U.S. Federal income tax (hereinafter referred to as the "special tax") and
possible withholding of such tax, notwithstanding the lack of other
connections of the Non-U.S. Holder with the United States. The Company
believes that the Company would likely constitute a United States real
property holding corporation within the meaning of the Code. However,
because the Common Stock is "regularly traded on an established securities
market" (within the meaning of Section 897(c)(3) of the Code), under the
Code and Treasury Regulations now in effect, the special tax (and
withholding tax) will not apply with respect to dispositions of shares of
Common Stock by a Non-U.S. Holder except in the case of dispositions of
Common Stock by a holder who beneficially owns, directly or indirectly,
more than 5% of the fair market value of Common Stock at any time during
the five years immediately preceding the disposition of the stock in which
case the special tax (but, except in certain circumstances, not the
withholding tax) would apply.
This discussion is a summary of certain U.S. federal tax
considerations of a real property holding corporation. Thus, each
prospective investor in the Common Stock should consult its own tax
advisers as to the U.S. federal tax consequences of the purchase, ownership
and disposition of shares of the Common Stock, including the effect of any
United States state, local or foreign tax laws with respect thereto.
PLAN OF DISTRIBUTION
The Shares may be sold from time to time to purchasers directly
by the Selling Stockholder. Alternatively, the Selling Stockholder may
sell the Shares in one or more transactions (which may involve one or more
block transactions) on the New York Stock Exchange, the Paris Bourse, or
the Basel, Geneva or Zurich Stock Exchanges, in sales occurring in the
public market off such exchanges, in separately negotiated transactions, or
in a combination of such transactions; each sale may be made either at
market prices prevailing at the time of such sale or at negotiated prices;
some or all of the Shares may be sold directly or through brokers acting on
behalf of the Selling Stockholder or to dealers for resale by such dealers;
and in connection with such sales, such brokers or dealers may receive
compensation in the form of discounts or commissions from the Selling
Stockholder and/or the purchasers of such Shares for whom they may act as
<PAGE>
broker or agent. All expenses of registration incurred in connection with
this offering are being borne by the Company, but all brokerage commissions
and other expenses incurred by the Selling Stockholder will be payable by
the Selling Stockholder.
The Selling Stockholder and any dealer participating in the
distribution of any Shares or any broker executing selling orders on behalf
of the Selling Stockholder may be deemed to be "underwriters" within the
meaning of the Securities Act, in which case any profit on the sale of any
or all of the Shares by the Selling Stockholder and any discounts or
commissions received by any such brokers or dealers may be deemed to be
underwriting discounts and commissions under the Securities Act.
Any broker or dealer participating in any distribution of the
Shares in connection with the offering of the Shares may be deemed to be an
"underwriter" within the meaning of the act and will be required to deliver
a copy of this Prospectus to any person who purchases any of the Shares
from or through such broker or dealer.
VALIDITY OF COMMON STOCK
The validity of the Shares of Common Stock will be passed upon
for the Company by White & Case, 1155 Avenue of the Americas, New York, New
York.
EXPERTS
The audited consolidated financial statements and schedules
incorporated by reference in this Prospectus have been audited by Arthur
Andersen & Co., independent public accountants, as indicated in their
reports with respect thereto, and are incorporated by reference herein in
reliance upon the authority of said firm as experts in auditing and
accounting in giving said reports.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Company hereby incorporates by reference in this Prospectus
the Company's Annual Report on Form 10-K for the year ended December 31,
1993. All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have
been sold or which deregister all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement
and to be a part hereof from the date of filing of such documents. Any
statement contained herein or in a document all or a portion of which is
incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
<PAGE>
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law authorizes
and empowers the Company to indemnify the directors, officers, employees
and agents of the Company 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 relationship with the Company,
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
Company 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 persons in connection with such acts or events is not
necessarily determinative of the question of whether such persons have met
the required standard of conduct and are, 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.
The By-Laws of the Company provide that each person who at any
time is or shall have been a director or officer of the Company, or is or
shall have been serving another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity at the
request of the Company, and his heirs, executors and administrators, shall
be indemnified by the Company in accordance with and to the full extent
permitted by the General Corporation Law of the State of Delaware. Section
6 of the By-Laws of the Company 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 the Company and the director or officer.
Item 7. Exemption from Registration Claimed.
The Shares offered hereby have been or will be issued to the
Selling Stockholder (who is a Senior Vice President and Chief Financial
Officer of the Company) upon the exercise of the Option, in private
placement transactions "not involving any public offering" within the
meaning of Section 4(2) of the Securities Act. Accordingly, the issuance
of the Shares to the Selling Stockholder is exempt from registration under
the Securities Act by virtue of the exemption provided in Section 4(2)
thereof.
Item 8. Exhibits.
Exhibit
Number Description of Documents
5 - Opinion of White & Case.
23.1 - Consent of Arthur Andersen & Co.
23.2 - Consent of White & Case (included in Exhibit 5).
24 - Power of Attorney of certain officers and directors.
Item 9. Undertakings.
<PAGE>
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act;
(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; 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 by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the registration statement;
(2) that, for the purpose of determining any liability under the
Securities 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;
(4) that, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant
to Section 13(a) or 15(d) of the Exchange 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; and
(5) that, for purposes of determining any liability under the
Act, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus, filed by the Registrant pursuant to
Rule 424(b)(1) or (4) under the Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the provisions described in Item 6, or
otherwise, the Company has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Company of expenses incurred or paid by a director, officer or con-
trolling person of the Company in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Company
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
<PAGE>
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Denver, State of
Colorado, on the 22nd day of April, 1994.
NEWMONT MINING CORPORATION
By /s/ Timothy J. Schmitt
Timothy J. Schmitt
Vice President, Secretary and
Assistant General Counsel
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.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
*
Rudolph I.J. Agnew Director April 22, 1994
*
J.P. Bolduc Director April 22, 1994
*
Ronald C. Cambre Chief Executive Officer and Vice April 22, 1994
Chairman and Director (Principal
Executive Officer)
*
Joseph P. Flannery Director April 22, 1994
*
Thomas A. Holmes Director April 22, 1994
*
Gordon R. Parker Chairman and Director April 22, 1994
*
T. Peter Philip President and Chief Operating April 22, 1994
Officer and Director
*
Robin A. Plumbridge Director April 22, 1994
*
William I.M. Turner, Jr. Director April 22, 1994
<PAGE>
*
Wayne W. Murdy Senior Vice President and Chief April 22, 1994
Financial Officer (Principal
Financial Officer)
*
Gary E. Farmar Vice President and Controller April 22, 1994
(Principal Accounting Officer)
*By /s/ Timothy J. Schmitt
Timothy J. Schmitt as
Attorney-in-fact
</TABLE>
MSB:ACW April 25, 1994
Newmont Mining Corporation
1700 Lincoln Street
Denver, Colorado 80203
Dear Sirs:
We have examined the Registration Statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), in the form in which it is to be filed today by Newmont
Mining Corporation, a Delaware corporation ("Newmont"), with the Securities
and Exchange Commission (the "Commission"), relating to 74,886 shares (the
"Shares") of its common stock, $1.60 par value (the "Common Stock"), issued
or to be issued upon exercise of an option (the "Option") granted by
Newmont to the Selling Stockholder named in the Prospectus forming a part
of the Registration Statement (the "Selling Stockholder"), which Shares
will be sold from time to time by the Selling Stockholder. The Selling
Stockholder has received, and currently holds, a total of 6,115 Shares as a
result of a partial exercise of the Option. All share amounts set forth
herein have been adjusted to give effect to the 1.2481 shares to 1 share
stock split declared by the Company on March 21, 1994.
Based upon our examination of such documents, certificates,
records, authorizations and proceedings as we have deemed relevant, it is
our opinion that (i) the 6,115 Shares currently held by the Selling
Stockholder have been duly authorized and issued and are fully paid and
nonassessable and (ii) the 68,771 Shares remaining to be issued upon
exercise of the Option have been duly authorized and reserved for issuance
by Newmont and, when issued and the option price therefor paid as described
in the Option, will be validly issued, fully paid and nonassessable shares
of Common Stock of Newmont.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm appearing under the
caption "Validity of Common Stock" in the Prospectus forming part of the
Registration Statement. In giving this consent, we do not hereby admit
that we are within the category of persons whose consent is required under
<PAGE>
Section 7 of the Securities Act or the rules and regulations of the
Commission promulgated thereunder.
Very truly yours,
WHITE & CASE
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Form S-8 Registration Statement of our reports dated
January 25, 1994 included in Newmont Mining Corporation's Form 10-K for the
year ended December 31, 1993 and to all references to our Firm included in
this Registration Statement.
ARTHUR ANDERSEN & CO.
Denver, Colorado,
April 25, 1994.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Timothy J. Schmitt and Graham M.
Clark, Jr., and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and revocation, in his name and on
his behalf, to do any and all acts and things and to execute any and all
instruments which they and each of them may deem necessary or advisable to
enable Newmont Mining Corporation (the "Company") to comply with the
Securities Act of 1933, as amended (the "Act"), and any rules, regulations
or requirements of the Securities and Exchange Commission in respect
thereof, in connection with the registration under the Act of up to, and
including, 60,000 pre-split shares of Common Stock of the Company including
power and authority to sign his name in any and all capacities (including
his capacity as a Director and/or Officer of the Company) to a Registration
Statement on Form S-8 or such other form as may be appropriate, and to any
and all amendments, including post-effective amendments, to such
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Registration Statement, and to any and all instruments or documents filed
as part of or in connection with such Registration Statement or any
amendments thereto; and the undersigned hereby ratifies and confirms all
that said attorneys-in-fact and agents, or any of them, shall lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have subscribed these
presents as of the 16th day of March, 1994.
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Signature Title
<S> <C>
/s/ Rudolph I.J. Agnew Director
Rudolph I.J. Agnew
/s/ John P. Bolduc Director
John P. Bolduc
/s/ Ronald C. Cambre Chief Executive Officer and Vice
Ronald C. Cambre Chairman and Director (Principal
Executive Officer)
/s/ Joseph P. Flannery Director
Joseph P. Flannery
/s/ Thomas A. Holmes Director
Thomas A. Holmes
/s/ Gordon R. Parker Chairman and Director
Gordon R. Parker
/s/ T. Peter Philip President and Chief Operating Officer and
T. Peter Philip Director
/s/ Robin A. Plumbridge Director
Robin A. Plumbridge
/s/ William I.M. Turner, Jr. Director
William I.M. Turner, Jr.
/s/ Wayne W. Murdy Senior Vice President and Chief
Wayne W. Murdy Financial Officer (Principal
Financial Officer)
/s/ Gary E. Farmar Vice President and Controller
Gary E. Farmar (Principal Accounting Officer)
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