<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 14, 1995
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------
NEWMONT MINING CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------
<TABLE>
<S> <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.)
</TABLE>
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
------------------------
TIMOTHY J. SCHMITT, 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:
<TABLE>
<S> <C>
MAUREEN BRUNDAGE, ESQ. FRANCIS J. MORISON, ESQ.
WHITE & CASE DAVIS POLK & WARDWELL
1155 AVENUE OF THE AMERICAS 450 LEXINGTON AVENUE
NEW YORK, NEW YORK 10036 NEW YORK, NEW YORK 10017
(212) 819-8200 (212) 450-4000
</TABLE>
------------------------
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. / /
CALCULATION OF REGISTRATION FEE
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<TABLE>
<S> <C> <C> <C> <C>
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES REGISTERED REGISTERED PER UNIT OFFERING PRICE FEE
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Common Stock (par value $1.60 per
share).................................. 7,899,436 shares $41.00(1) $323,876,876(1) $111,681.68
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee. Such
estimate has been calculated pursuant to Rule 457(c) under the Securities
Act of 1933, as amended, based on the average of the high and low sales
price of the Common Stock as reported on the New York Stock Exchange on
November 7, 1995.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
PROSPECTUS
7,899,436 SHARES
NEWMONT MINING CORPORATION
COMMON STOCK
($1.60 PAR VALUE)
This Prospectus relates to the sale from time to time of a maximum of
7,899,436 shares of Common Stock, par value $1.60 per share (the "Common
Stock"), of Newmont Mining Corporation ("Newmont Mining" or the "Company") that
have been or may be acquired by (i) Salomon Brothers Inc, Goldman Sachs & Co.
and S.G.Warburg & Co. Inc. (collectively the "Purchasers") upon conversion of
the Depositary Shares (the "Depositary Shares") of the Company, (ii) the
Purchasers pursuant to the standby arrangement described herein and (iii)
certain other stockholders identified in the accompanying Prospectus Supplement
(the "Selling Stockholders") who elect to have sales made by them prior to
December 7, 1995 of shares of Common Stock, that were issued upon conversion of
the Depositary Shares covered by this Prospectus. See "Redemption of the
Depositary Shares and Expiration of the Conversion Privilege -- Registration of
Common Stock" and "-- Temporary Transfer Restrictions."
The 7,899,436 shares of Common Stock of Newmont Mining offered hereby are
the maximum number of shares of Common Stock issuable upon conversion of the
Depositary Shares of the Company. Each Depositary Share represents ownership of
1/2 of a share of the $5.50 Convertible Preferred Stock, par value $5.00 per
share (the "Convertible Preferred Stock"), of the Company and entitles the
holder to all proportionate rights and preferences of the underlying Convertible
Preferred Stock.
The Company has called all of the shares of Convertible Preferred Stock for
redemption on December 14, 1995 (the "Redemption Date"). As a consequence, the
Depositary (as defined herein) has called the Depositary Shares for redemption
on the Redemption Date at a redemption price of $51.925 per Depositary Share,
plus an amount equal to unpaid dividends thereon from September 15, 1995 to and
including the Redemption Date of $0.68 per Depositary Share, for a total
redemption price of $52.605 per Depositary Share (the "Redemption Price"). No
dividends will accrue on the Depositary Shares after the Redemption Date.
Depositary Shares representing one or more whole shares of Convertible Preferred
Stock are convertible into shares of Common Stock at a conversion price of
$36.395 per share of Common Stock (equivalent to a conversion rate of 2.7476
shares of Common Stock for each whole share of Convertible Preferred Stock),
prior to 5:00 p.m., New York City time, on December 4, 1995 (the "Final
Conversion Date"), at which time the conversion right terminates. Depositary
Shares representing less than one whole share of Convertible Preferred Stock
will not be convertible into shares of Common Stock, but instead will be
redeemed on the Redemption Date at the Redemption Price. Cash will be paid in
lieu of any fractional shares of Common Stock. No payment or adjustment will be
made for accrued and unpaid dividends on the Depositary Shares surrendered for
conversion.
THE ISSUANCE BY THE COMPANY OF THE DEPOSITARY SHARES, THE CONVERTIBLE
PREFERRED STOCK AND THE SHARES OF COMMON STOCK ISSUED OR TO BE ISSUED UPON
CONVERSION THEREOF HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). AS A RESULT, SHARES OF COMMON
STOCK ACQUIRED UPON CONVERSION OF THE DEPOSITARY SHARES MAY BE SUBJECT TO
CERTAIN TEMPORARY RESTRICTIONS ON TRANSFER AND RESALE, EXCEPT FOR SUCH SHARES OF
COMMON STOCK ISSUED TO THE PURCHASERS OR SOLD BY THE SELLING STOCKHOLDERS
PURSUANT TO THIS PROSPECTUS. SEE "REDEMPTION OF DEPOSITARY SHARES AND EXPIRATION
OF CONVERSION PRIVILEGES -- REGISTRATION OF COMMON STOCK" AND "-- TEMPORARY
TRANSFER RESTRICTIONS."
In the event that less than all of the Depositary Shares are surrendered
for conversion prior to 5:00 p.m., New York City time, on the Final Conversion
Date, the Company has arranged for the Purchasers to purchase directly from the
Company, at a price of $38.29 per share, up to such whole number of shares
of Common Stock as would have been issuable upon conversion of any Depositary
Shares not surrendered for conversion prior to 5:00 p.m., New York City time, on
the Final Conversion Date. The proceeds from such sale will be used by the
Company to redeem the Depositary Shares which have not been surrendered for
conversion by the holders thereof. The Purchasers may also purchase Depositary
Shares from existing holders thereof in compliance with the transfer
restrictions applicable thereto prior to 5:00 p.m., New York City time, on the
Final Conversion Date, and any Depositary Shares so purchased or otherwise held
by the Purchasers
<PAGE> 3
representing one or more whole shares of Convertible Preferred Stock will be
converted into Common Stock. See "Standby Arrangement" for a description of the
Purchasers' compensation and indemnification arrangements with the Company.
THE CONVERSION RIGHT OF THE DEPOSITARY SHARES WILL EXPIRE AT 5:00 P.M., NEW
YORK CITY TIME, ON MONDAY, DECEMBER 4, 1995. FROM AND AFTER THAT DATE AND TIME,
HOLDERS OF DEPOSITARY SHARES WILL BE ENTITLED ONLY TO THE REDEMPTION PRICE,
WITHOUT INTEREST.
NO DIVIDENDS ACCRUED FOR THE PERIOD COMMENCING SEPTEMBER 15, 1995 WILL BE
PAID ON DEPOSITARY SHARES DULY SURRENDERED FOR CONVERSION ON OR PRIOR TO THE
FINAL CONVERSION DATE.
The Company's Common Stock is traded on the New York Stock Exchange (the
"NYSE") under the symbol "NEM". The Common Stock is also traded on the Paris
Bourse and the Swiss Stock Exchanges. On November 13, 1995, the last reported
sale price of the Common Stock on the NYSE was $41.625 per share. See "Price
Range of Common Stock and Dividend Policy." While no assurance can be given as
to any future prices for the Common Stock, as long as the market price of the
Common Stock remains at or above $38.29 per share, holders of Depositary
Shares who elect to convert their Depositary Shares will receive upon conversion
shares of Common Stock (plus cash in lieu of fractional shares) having an
aggregate current market value (without giving effect to commissions and other
costs which would likely be incurred on sale) equal to or greater than the
Redemption Price (assuming, in the case of any holder desiring to sell any such
shares of Common Stock prior to December 7, 1995, that such holder is a Selling
Stockholder so that such sale of shares of Common Stock will be covered by this
Prospectus and will not be subject to the restrictions on transfer and resale
described herein). It should be noted, however, that the price of the Common
Stock received upon conversion will fluctuate in the market, and the holders may
incur various expenses of sale if such Common Stock is sold.
SEE "RISK FACTORS" BEGINNING ON PAGE 4 FOR INFORMATION THAT SHOULD BE
CONSIDERED BY PROSPECTIVE INVESTORS IN THE COMMON STOCK.
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.
Prior to 5:00 p.m., New York City time, on the Redemption Date, the
Purchasers may offer to the public Common Stock, including shares acquired
through the purchase and conversion of the Depositary Shares, at prices set from
time to time by the Purchasers. It is intended that each such price when set
will not exceed the greater of the last reported sale or current asked price of
Common Stock on the NYSE, plus the amount of any applicable commissions or
concessions to dealers, and it is intended that an offering price set on any
calendar day will not be increased more than once during such day. At and after
5:00 p.m., New York City time, on the Redemption Date, the Purchasers may offer
Common Stock at a price or prices to be determined, but it is presently intended
that any such price will be determined in conformity with the preceding
sentence. The Purchasers may thus realize profits or losses independent of the
compensation referred to under "Standby Arrangement." The Purchasers have agreed
that they will remit to the Company a portion of the profit realized on sales of
shares of Common Stock acquired by the Purchasers directly from the Company
pursuant to the standby arrangements described herein. Any Common Stock will be
offered by the Purchasers when, as and if accepted by the Purchasers and subject
to their right to reject orders in whole or in part.
SALOMON BROTHERS INC
GOLDMAN, SACHS & CO.
S.G.Warburg & Co. Inc.
THE DATE OF THIS PROSPECTUS IS NOVEMBER 14, 1995.
2
<PAGE> 4
IN CONNECTION WITH THIS OFFERING, THE PURCHASERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE COMMON STOCK OR
DEPOSITARY SHARES AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE
OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE,
IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY
BE DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "1934 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, Room 1024, 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 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 (the
"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 Common Stock 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.
INCORPORATION OF CERTAIN DOCUMENTS 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, 1994
and the Company's Quarterly Reports on Form 10-Q for the quarters ended March
31, 1995, June 30, 1995 and September 30, 1995, which have been filed with the
Commission. All documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the 1934 Act after the date of this Prospectus and prior to the
termination of the offering of the Common Stock 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.
3
<PAGE> 5
RISK FACTORS
Prospective purchasers in shares of the Common Stock offered hereby should
carefully read this Prospectus and the documents incorporated by reference
herein. In determining whether to purchase the shares of Common Stock being
offered hereby, prospective purchasers should carefully consider the following
factors, in addition to the other information contained in this Prospectus or
incorporated by reference herein.
GOLD PRICE VOLATILITY
The Company's sole asset is a controlling equity interest in Newmont Gold
Company ("Newmont Gold"), a worldwide company engaged in gold production,
exploration for gold and acquisition of gold properties. The profitability of
the Company's current operations is significantly affected by changes in the
market price of gold. Market gold prices can fluctuate widely and are affected
by numerous factors beyond the Company's control, including industrial and
jewelry demand, expectations with respect to the rate of inflation, the strength
of the U.S. dollar (the currency in which the price of gold is generally quoted)
and of other currencies, interest rates, central bank sales, forward sales by
producers, global or regional political or economic events, and production and
cost levels in major gold-producing regions such as South Africa. In addition,
the price of gold sometimes is subject to rapid short-term changes because of
speculative activities. The current demand for and supply of gold affect gold
prices, but not necessarily in the same manner as current supply and demand
affect the prices of other commodities. The supply of gold consists of a
combination of new mine production and existing stocks of bullion and fabricated
gold held by governments, public and private financial institutions, industrial
organizations and private individuals. As the amounts produced in any single
year constitute a very small portion of the total potential supply of gold,
normal variations in current production do not necessarily have a significant
impact on the supply of gold or on its price. If the Company's revenue from gold
sales falls for a substantial period below its cost of production at any or all
of its operations, the Company could determine that it is not economically
feasible to continue commercial production at any or all of its operations or to
continue the development of some or all of its projects. The Company's
consolidated weighted average cash cost of equity production (which is
equivalent to the weighted average costs applicable to sales per ounce of equity
production) for its Nevada, Peruvian and Uzbekistan operations was $204 per
ounce of gold sold in 1994, $198 in 1993 and $198 in 1992 and $211 for the first
nine months of 1995.
The gold market generally is characterized by volatile prices. The
volatility of gold prices is illustrated in the following table of annual high,
low and average afternoon fixing prices of gold per ounce on the London Bullion
Market:
<TABLE>
<CAPTION>
YEAR HIGH LOW AVERAGE
-------------------------------------------- ---- ---- -------
<S> <C> <C> <C>
1985........................................ $341 $284 $ 317
1986........................................ 438 326 368
1987........................................ 500 390 446
1988........................................ 484 395 437
1989........................................ 416 356 381
1990........................................ 424 346 383
1991........................................ 403 344 362
1992........................................ 360 330 344
1993........................................ 406 326 360
1994........................................ 395 378 384
1995 (through November 13)................... 396 372 384
</TABLE>
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Source of Data: Metals Week
On November 13, 1995, the afternoon fixing price for gold on the London
Bullion Market was $388 per ounce and the spot market price of gold on the New
York Commodity Exchange was $387.
ORE RESERVE ESTIMATES
The proven and probable ore reserve figures presented in the Company's
Annual Report on Form 10-K for the year ended December 31, 1994, which is
incorporated in this Prospectus by reference, are estimates,
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<PAGE> 6
and no assurance can be given that the indicated level of recovery of gold will
be realized. Reserve estimates may require revision based on actual production
experience. Market price fluctuations of gold, as well as increased production
costs or reduced recovery rates, may render proven and probable ore reserves
containing relatively lower grades of mineralization uneconomic to exploit and
may ultimately result in a restatement of the Company's proven and probable ore
reserves.
The gold price used in estimating Newmont Gold's proven and probable ore
reserves as of December 31, 1994 was $400 per ounce. Newmont Gold believes that
if its Carlin reserve estimates were to be based on gold prices as low as $300
per ounce with current operating costs, 1994 year-end reserves would decrease by
approximately 17%.
REGULATION AND ENVIRONMENTAL MATTERS
The Company's domestic and foreign mining operations and exploration
activities are subject to extensive laws and regulations governing prospecting,
developing, production, exports, taxes, labor standards, occupational health,
waste disposal, protection and remediation of the environment, protection of
endangered and protected species, mine safety, toxic substances and other
matters. Mining is subject to potential risks and liabilities associated with
pollution of the environment and the disposal of waste products occurring as a
result of mineral exploration and production. The Company has been and may in
the future be also subject to clean-up liability under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 and comparable
state laws which establish clean-up liability for the release of hazardous
substances. In the context of environmental permitting, including the approval
of reclamation plans, the Company must comply with standards, existing laws and
regulations which may entail greater or lesser costs and delays depending on the
nature of the activity to be permitted and how stringently the regulations are
implemented by the permitting authority. It is possible that the costs and
delays associated with the compliance with such laws, regulations and permits
could become such that the Company would not proceed with the development of a
project or the operation or further development of a mine.
During the past three years, the U.S. Congress considered a number of
proposed amendments to the General Mining Law of 1872, as amended (the "General
Mining Law"), which governs mining claims and related activities on federal
lands. In 1992, a holding fee of $100 per claim was imposed upon unpatented
mining claims located on federal lands. In October 1994, a one-year moratorium
on the processing of new patent applications was approved. While such moratorium
currently remains in effect, its future is unclear. In addition, a variety of
legislation is now pending before the U.S. Congress to amend further the General
Mining Law. The proposed legislation would, among other things, change the
current patenting procedures, impose royalties, and enact new reclamation,
environmental controls and restoration requirements. The royalty proposals range
from a 2% royalty on "net profits" from mining claims to an 8% royalty on
modified gross income/net smelter returns. Although the extent of any such
changes is not presently known, approximately 92% of Newmont Gold's proven and
probable ore reserves in the U.S. are located on private land and, therefore,
are not subject to such amendments.
Amendments to current laws and regulations governing operations and
activities of mining companies or more stringent implementation thereof are
actively considered from time to time and could have a material adverse impact
on the Company.
RISKS OF FOREIGN INVESTMENTS
Certain of the Company's projects are located in foreign countries. The
Company's foreign investments, which include projects in the Republic of
Uzbekistan, Peru and Indonesia, are subject to the risks normally associated
with conducting business in foreign countries, including labor disputes and
uncertain political and economic environments, as well as risks of war and civil
disturbances or other risks which may limit or disrupt the projects, restrict
the movement of funds or result in the deprivation of contract rights or the
taking of property by nationalization or expropriation without fair compensation
laws or policies of particular countries, foreign taxation, limitations on
ownership and on repatriation of earnings, and foreign exchange controls and
currency fluctuations. Although the Company has not experienced any significant
problem in foreign countries arising from such risks, there can be no assurance
that such problems will not arise in the future. While political risk insurance
from the Overseas Private Investment Corporation and/or the Multilateral
Investment
5
<PAGE> 7
Guarantee Agency has been obtained to cover a portion of the Company's
investments in Peru and the Republic of Uzbekistan against certain
expropriation, war, civil unrest and political violence risks, such insurance is
limited by its terms to the particular risks specified therein and is subject to
certain exclusions. There can therefore be no assurance that claims would be
paid under such insurance in connection with a particular event in a foreign
country. Foreign investments may also be adversely affected by laws and policies
of the U.S. affecting foreign trade, investment and taxation.
SPECULATIVE NATURE OF GOLD EXPLORATION AND DEVELOPMENT
Gold exploration is highly speculative in nature, involves many risks and
frequently is nonproductive. There can be no assurance that the Company's gold
exploration efforts will be successful. Once gold mineralization is discovered,
it may take a number of years from the initial phases of drilling until
production is possible, during which time the economic feasibility of production
may change. Substantial expenditures are required to establish proven and
probable ore reserves through drilling, to determine metallurgical processes to
extract the metals from the ore and, in the case of new properties, to construct
mining and processing facilities. As a result of these uncertainties, no
assurance can be given that the Company's exploration programs will result in
the expansion or replacement of current production with new proven and probable
ore reserves.
Development projects have no operating history upon which to base estimates
of future cash operating costs. Particularly for development projects, estimates
of proven and probable ore reserves and cash operating costs are, to a large
extent, based upon the interpretation of geologic data obtained from drill holes
and other sampling techniques, and feasibility studies which derive estimates of
cash operating costs based upon anticipated tonnage and grades of ore to be
mined and processed, the configuration of the ore body, expected recovery rates
of the gold from the ore, comparable facility and equipment operating costs,
anticipated climatic conditions and other factors. As a result, it is possible
that actual cash operating costs and economic returns may differ significantly
from those currently estimated. It is not unusual in new mining operations to
experience unexpected problems during the start-up phase.
MINING RISKS AND INSURANCE
The business of gold mining is generally subject to a number of risks and
hazards, including environmental hazards, industrial accidents, labor disputes,
encountering unusual or unexpected geologic formations, cave-ins, flooding, rock
falls, periodic interruptions due to inclement or hazardous weather conditions,
gold bullion losses and other acts of God. Such risks could result in damage to,
or destruction of, mineral properties or producing facilities, personal injury
or death, environmental damage, delays in mining, monetary losses and possible
legal liability. The Company maintains insurance against risks which are typical
in the operation of its business and in amounts which the Company believes to be
reasonable, but no assurance can be given that such insurance will continue to
be available, will be available at economically acceptable premiums or will be
adequate to cover any resulting liability.
THE COMPANY
GENERAL
Newmont Mining is a U.S. company whose sole asset is a controlling equity
interest in Newmont Gold. Newmont Gold is a worldwide company engaged in gold
production, exploration for gold and acquisition of gold properties.
Effective January 1, 1994, Newmont Gold acquired all of Newmont Mining's
operations. The transaction (the "Transfer Transaction") included the transfer
by Newmont Mining to Newmont Gold of all of Newmont Mining's assets, except for
85,850,101 shares of common stock of Newmont Gold ("Newmont Gold Common Stock"),
and the assumption by Newmont Gold of all the liabilities of Newmont Mining,
except for certain of Newmont Mining's obligations (including those with respect
to the Convertible Preferred Stock). In addition, Newmont Gold issued to Newmont
Mining 2,875,000 shares of $5.50 convertible preferred stock, par value $5.00
per share (the "Newmont Gold Convertible Preferred Stock"), having terms
identical to the Convertible Preferred Stock of Newmont Mining described
herein (except that the Newmont Gold Convertible Preferred Stock is
6
<PAGE> 8
convertible into shares of Newmont Gold Common Stock), as well as stock options
exercisable for Newmont Gold Common Stock.
As a result of the Transfer Transaction, Newmont Mining's only assets are
(i) the remaining shares of Newmont Gold Common Stock held by it, which
currently represent approximately 89.2% of the outstanding Newmont Gold Common
Stock, (ii) the 2,875,000 shares of Newmont Gold Convertible Preferred Stock and
(iii) Newmont Gold's stock options issued to it. As a result of the Transfer
Transaction, effective January 1, 1994, Newmont Mining had no other interest or
assets and conducts no operations. Shares of both Newmont Mining and Newmont
Gold trade separately on the NYSE and certain other international exchanges.
Both Newmont Mining and Newmont Gold have the same per-share earnings, equity in
assets and dividends.
In connection with the redemption by Newmont Mining of its Convertible
Preferred Stock as described herein, Newmont Gold will call for redemption on
the Redemption Date all of the outstanding shares of the Newmont Gold
Convertible Preferred Stock. Newmont Mining intends to convert shares of Newmont
Gold Convertible Preferred Stock held by it into shares of Newmont Gold Common
Stock on or prior to the Final Conversion Date in an amount equal to the
number of Convertible Preferred Shares that are converted as a result of the
conversion of Depositary Shares by the holders thereof, including the
Purchasers. Any Newmont Gold Convertible Preferred Stock remaining outstanding
after the Final Conversion Date will be redeemed by Newmont Gold on the
Redemption Date. In addition, Newmont Mining intends to purchase from Newmont
Gold shares of Newmont Gold Common Stock in an amount equal to the number of
shares of Newmont Mining Common Stock sold to the Purchasers pursuant to the
stand by arrangement described herein. As a result, Newmont Mining will own
approximately 90% of the outstanding shares of Newmont Gold Common Stock and
will continue to own options to purchase additional shares of Newmont Gold
Common Stock.
Newmont Gold currently produces gold from the Carlin Trend in Nevada.
Newmont Gold also produces gold through a 38% owned venture in Peru, which
commenced operations in August 1993, and a 50% owned venture in Uzbekistan,
which commenced gold production in September 1995. Newmont Gold additionally has
an 80% owned venture in Indonesia, which is scheduled to commence gold
production in early 1996 and an 80% interest in a large copper/gold project in
Indonesia which is currently in the feasibility stage. In addition to
exploration activities conducted in connection with the above-referenced
operations and projects, Newmont Gold continues to explore for gold and/or is
conducting joint venture discussions in various countries, including Mexico,
Canada, Ecuador, Laos and in the United States. Newmont Gold had approximately
26.1 million equity ounces of proven and probable gold ore reserves at December
31, 1994 and produced approximately 1.7 million equity ounces of gold in 1994.
In December 1994, the Company concluded that the geological model used by
the previous owner of the Grassy Mountain property in Oregon was inadequate to
support mine development. Pending completion of additional evaluations, 996,000
ounces of previously classified proven and probable reserves were then no longer
classified as reserves as of December 31, 1994. In 1995, the Company has
continued to evaluate the deposit to determine its economic potential. Based on
results to date, the deposit has not met the Company's criteria for development.
The final results of such evaluation are expected to be completed in the fourth
quarter of 1995. If the final results conclude that the deposit does not meet
such criteria, the Company will write down or write off its $33.7 million
investment in this property.
Since the Company's only asset is a controlling equity interest in Newmont
Gold, the rights of the Company to participate in any distribution of assets of
Newmont Gold upon its liquidation or reorganization or otherwise (and thus the
ability of holders of the shares of Common Stock to benefit from such
distribution) are subject to prior claims of creditors of Newmont Gold, except
to the extent that the Company may itself be a creditor with recognized claims
against Newmont Gold. Claims on Newmont Gold by creditors may include claims of
holders of indebtedness and claims of creditors in the ordinary course of
business. Such claims may increase or decrease, and additional claims may be
incurred in the future.
Newmont Mining was incorporated in 1921 under the laws of Delaware and
maintains its principal executive offices at 1700 Lincoln Street, Denver,
Colorado 80203 (telephone: (303) 863-7414).
RECENT DEVELOPMENTS
On November 7, 1995, Newmont Gold and a subsidiary of Newmont Gold filed a
complaint against Barrick Goldstrike Mines Inc. ("Barrick Goldstrike") and
Barrick Gold Corporation in state court in the State of Nevada. The complaint
alleges that Barrick Goldstrike's mine dewatering disposal practices are
7
<PAGE> 9
causing unnatural and unauthorized flooding, saturation and damage to property
owned by Newmont Gold and its subsidiary, and that these conditions constitute
both a trespass and a breach of a 1992 contract between Newmont Gold and Barrick
Goldstrike, pursuant to which Barrick Goldstrike is mining a gold ore body in
Nevada owned in part by Barrick Goldstrike and in part by Newmont Gold. The
complaint also alleges that these conditions, if unabated, may give rise to
violations of environmental laws and regulations. In connection with the
complaint, Newmont Gold is seeking a judicial declaration that Barrick
Goldstrike lacks the legal right to dispose of mine water on the land at issue,
an injunction against further flooding and saturation of the property, and
compensatory and punitive damages.
USE OF PROCEEDS
The net proceeds to the Company from the sale of the Common Stock to the
Purchasers pursuant to the agreement described under "Standby Arrangement" will
be used by the Company to fund the redemption of any Depositary Shares not
surrendered for conversion prior to 5:00 P.M., New York City time, on the Final
Conversion Date. Any excess net proceeds, resulting from the Purchasers'
remitting certain amounts to the Company (see "Standby Arrangement"), will be
contributed to Newmont Gold, which in turn will use such proceeds for general
corporate purposes. Pending such uses, it is anticipated that the net proceeds
will be invested in short-term investments. The Company will not receive any
proceeds from the issuance of Common Stock to holders (including the Purchasers)
upon conversion of Depositary Shares.
PRICE RANGE OF COMMON STOCK AND DIVIDEND POLICY
The Common Stock is listed on the NYSE (under the symbol "NEM"). The
following table sets forth, for the periods indicated, the high and low sale
prices per share of the Common Stock as reported on the NYSE Composite
Transactions Tape, as adjusted for an April 1994 1.2481-for-1 stock split.
<TABLE>
<CAPTION>
HIGH LOW
------ ------
<S> <C> <C>
1993
First Quarter.......................................................... $36.00 $29.63
Second Quarter......................................................... $43.25 $32.13
Third Quarter.......................................................... $47.13 $35.88
Fourth Quarter......................................................... $46.38 $37.63
1994
First Quarter.......................................................... $48.07 $40.67
Second Quarter......................................................... $45.67 $37.63
Third Quarter.......................................................... $46.75 $38.25
Fourth Quarter......................................................... $45.50 $33.88
1995
First Quarter.......................................................... $43.88 $33.13
Second Quarter......................................................... $45.25 $38.25
Third Quarter.......................................................... $46.25 $41.13
Fourth Quarter (through November 13, 1995).............................. $43.63 $36.63
</TABLE>
The last reported sale price of the Common Stock on the NYSE on November
13, 1995, was $41.625 per share. On November 10, 1995, there were approximately
5,655 stockholders of record of Common Stock.
The Company has paid cash dividends on its Common Stock at a rate of $0.48
per share of Common Stock in each of the past five years. The determination of
the amount of future dividends, however, will be made by the Company's Board of
Directors from time to time and will depend on the future earnings, capital
requirements and financial condition of the Company, Newmont Gold and Newmont
Gold's subsidiaries, as well as other relevant factors.
The Company expects to declare its regular quarterly dividend on the
Common Stock on or about Wednesday, November 15, 1995. In order to be entitled
to such dividend, holders of Depositary Shares would have to convert the
Depositary Shares into shares of Common Stock on or prior to the record date
established by the Company for purposes of such dividend.
CAPITALIZATION
The following table sets forth the consolidated capitalization of the
Company at September 30, 1995, and as adjusted to give effect to the assumed
conversion of all of the Depositary Shares and the underlying
8
<PAGE> 10
Convertible Preferred Stock, the issuance of 7,899,436 shares of Common Stock
upon such conversion, net of certain expenses associated therewith, and the
conversion by the Company of the Newmont Gold Convertible Preferred Stock.
<TABLE>
<CAPTION>
SEPTEMBER 30, 1995
-----------------------
ACTUAL AS ADJUSTED
--------- -----------
<S> <C> <C>
(IN THOUSANDS)
SHORT-TERM DEBT, INCLUDING CURRENT PORTION OF LONG-TERM DEBT........ $ 28,161 $ 28,161
--------- -----------
LONG-TERM DEBT LESS CURRENT PORTION................................. 604,259 604,259
MINORITY INTEREST IN NEWMONT GOLD................................... 87,968 82,392
STOCKHOLDERS' EQUITY
Convertible Preferred Stock -- $5.00 par value; 2,875,000 shares
issued and outstanding, none as adjusted(1).................... 14,375 --
Common stock -- $1.60 par value; 120,000,000 shares authorized;
86,869,000 issued and 94,769,000 as adjusted, less 643,000
treasury shares................................................ 137,963 150,602
Capital in excess of par value.................................... 307,423 305,286
Retained earnings................................................. 284,301 290,153
--------- -----------
Total stockholders' equity........................................ 744,062 746,041
--------- -----------
TOTAL CAPITALIZATION................................................ $1,436,289 $1,432,692
========= =========
</TABLE>
- ---------------
(1) The outstanding Convertible Preferred Stock has been called for redemption
by the Company on December 14, 1995.
SELECTED FINANCIAL DATA
The following sets forth certain information regarding the Company's
consolidated results of operations and financial position for the periods
indicated. The data presented below should be read in conjunction with the
financial information included elsewhere in this Prospectus and the Company's
consolidated financial statements and the notes thereto incorporated by
reference herein.
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
----------------------- -------------------------------------
1995 1994 1994 1993 1992
--------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
INCOME STATEMENT DATA:
Sales........................ $ 451,849 $ 439,168 $ 597,370 $ 628,809 $ 605,897
Income before cumulative
effect of change in
accounting principles...... $ 108,645(1) $ 59,337 $ 76,121 $ 94,669 $ 90,621
Net income................... $ 108,645(1) $ 59,337 $ 76,121 $ 133,139(2) $ 79,049(3)
Earnings per common share:
Income before cumulative
effect of change in
accounting principles... $1.12(1) $0.55 $0.70 $0.92 $1.04
Net income................. $1.12(1) $0.55 $0.70 $1.37(2) $0.90(3)
Dividends declared per
common share............ $0.36 $0.36 $0.48 $0.48 $0.48
BALANCE SHEET DATA
(AT PERIOD END):
Total assets................. $1,780,065 $1,624,380 $1,656,657 $1,186,410 $1,236,304
Total debt................... $ 632,420 $ 609,373 $ 609,373 $ 207,739 $ 276,630
Stockholders' equity......... $ 744,062 $ 668,656 $ 673,465 $ 629,832 $ 528,565
</TABLE>
- ---------------
9
<PAGE> 11
(1) Reflects an after-tax gain of approximately $72 million, or $0.75 per share,
for the sale of the Company's interest in Southern Peru Copper Corporation,
and an after-tax charge of approximately $15.1 million, or $0.16 per share,
for the write-off and reclamation provision for an exploration property.
(2) Reflects the cumulative effect of adopting Statement of Financial Accounting
Standards No. 109, "Accounting for Income Taxes," effective January 1,
1993, which resulted in a credit of $38.5 million or $0.45 per share.
(3) Reflects the cumulative effect of adopting Statement of Financial Accounting
Standards No. 106, "Employers' Accounting for Postretirement Benefits Other
Than Pensions," effective January 1, 1992 which resulted in a net-after tax
charge of $11.6 million or $0.14 per share.
REDEMPTION OF DEPOSITARY SHARES
AND EXPIRATION OF CONVERSION PRIVILEGES
GENERAL
Each Depositary Share represents 1/2 share of the Convertible Preferred
Stock deposited under the Deposit Agreement, dated as of November 15, 1992, (the
"Deposit Agreement"), among the Company, Chemical Bank, as Depositary (the
"Depositary"), and the holders from time to time of the depositary receipts (the
"Depositary Receipts") issued thereunder.
The Company has called all of the outstanding Convertible Preferred Stock
for redemption on the Redemption Date pursuant to the terms of the Company's
Certificate of Designations for the Convertible Preferred Stock. As a result,
the Depositary has called the Depositary Shares for redemption on the Redemption
Date at a redemption price of $51.925 per Depositary Share, plus accrued and
unpaid dividends of $0.68 per Depositary Share to and including the Redemption
Date, for a total redemption price of $52.605 per Depositary Share. No dividends
will accrue on the Depositary Shares after the Redemption Date. In addition to
the right to sell their Depositary Shares in compliance with the transfer
restrictions applicable thereto and subject to the restrictions on such transfer
set forth in the Deposit Agreement, holders of Depositary Shares have the right
to convert their Depositary Shares into Common Stock. Depositary Shares
representing one or more whole shares of Convertible Preferred Stock are
convertible into such number of whole shares of Common Stock as is equal to the
aggregate liquidation preference of the shares of Convertible Preferred Stock
represented by the Depositary Shares surrendered for conversion divided by the
conversion price of $36.395 per share of Common Stock, until 5:00 p.m., New York
City time, on the Final Conversion Date (the day ten days prior to, or if such
date is not a business day, the business day next preceding the tenth day
before, the Redemption Date), at which time the conversion right terminates. No
payment or adjustment will be made for accrued and unpaid dividends on the
Depositary Shares surrendered for conversion. AT AND AFTER 5:00 P.M., NEW YORK
CITY TIME, ON THE FINAL CONVERSION DATE, HOLDERS OF DEPOSITARY SHARES WILL BE
ENTITLED ONLY TO THE REDEMPTION PRICE, WITHOUT INTEREST.
PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE FINAL CONVERSION DATE,
DEPOSITARY SHARES REPRESENTING ONE OR MORE WHOLE SHARES OF CONVERTIBLE PREFERRED
STOCK MAY BE CONVERTED AT THE OPTION OF THE HOLDER INTO SHARES OF THE COMPANY'S
COMMON STOCK, AT A CONVERSION PRICE OF $36.395 PER SHARE OF COMMON STOCK
(EQUIVALENT TO A CONVERSION RATE OF 2.7476 SHARES OF COMMON STOCK FOR EACH WHOLE
SHARE OF CONVERTIBLE PREFERRED STOCK). TO CONVERT ANY DEPOSITARY SHARES, THE
HOLDER THEREOF MUST SURRENDER DEPOSITARY RECEIPTS, WITH WRITTEN INSTRUCTIONS IN
THE FORM OF THE LETTER OF TRANSMITTAL PROVIDED TO ALL REGISTERED HOLDERS OF
DEPOSITARY SHARES, TO THE DEPOSITARY TO CONVERT THE DEPOSITARY SHARES INTO
SHARES OF COMMON STOCK.
PRIOR TO DECEMBER 7, 1995, SHARES OF COMMON STOCK ISSUED UPON CONVERSION OF
THE DEPOSITARY SHARES (OTHER THAN SHARES OF COMMON STOCK ISSUED TO ANY
PURCHASERS OR SOLD BY ANY SELLING STOCKHOLDER) WILL BE EVIDENCED ONLY BY
PHYSICAL CERTIFICATES AND CANNOT BE HELD THROUGH THE DEPOSITORY TRUST COMPANY
("DTC") OR ANY OTHER BOOK-ENTRY TRANSFER FACILITY, OR TRADED ON THE NYSE.
COMMENCING ON DECEMBER 7, 1995, HOLDERS OF
10
<PAGE> 12
SHARES OF COMMON STOCK ISSUED UPON CONVERSION OF THE DEPOSITARY SHARES WHO ARE
NOT AFFILIATES (AS DEFINED UNDER RULE 144 UNDER THE SECURITIES ACT) OF THE
COMPANY AND HAVE NOT BEEN AFFILIATES FOR A PERIOD OF AT LEAST THREE MONTHS PRIOR
THERETO SHOULD BE ABLE TO HOLD SUCH SHARES OF COMMON STOCK THROUGH DTC OR
ANOTHER BOOK-ENTRY TRANSFER SYSTEM AND SUCH SHARES MAY BE TRADED ON THE NYSE.
NO DIVIDENDS ACCRUED FOR THE PERIOD COMMENCING SEPTEMBER 15, 1995 WILL BE
PAID ON DEPOSITARY SHARES DULY SURRENDERED FOR CONVERSION ON OR PRIOR TO THE
FINAL CONVERSION DATE.
Depositary Shares representing less than one whole share of Convertible
Preferred Stock (after aggregating the number of Depositary Shares surrendered
by a holder for conversion) may not be converted into Shares of the Company's
Common Stock, even when accompanied by other Depositary Shares representing one
or more whole shares of Convertible Preferred Stock. Depositary Shares
representing less than one whole share of Convertible Preferred Stock may either
be surrendered for redemption or sold in compliance with the transfer
restrictions applicable thereto and subject to the restrictions on such
transfer set forth in the Deposit Agreement.
No fractional shares of Common Stock will be issued upon conversion.
Instead, a cash payment for each fractional share will be made by the Company on
the basis of the closing sale price of the Common Stock, regular way, on the
NYSE on the last trading day preceding the date of conversion.
The Company's Common Stock is traded on the NYSE under the symbol "NEM". On
November 13, 1995, the reported last sale price of the Common Stock on the NYSE
was $41.625 per share. See "Price Range of Common Stock and Dividend Policy."
WHILE NO ASSURANCE CAN BE GIVEN AS TO ANY FUTURE PRICES FOR THE COMMON
STOCK, AS LONG AS THE MARKET PRICE OF THE COMMON STOCK REMAINS AT OR ABOVE
$38.29 PER SHARE, HOLDERS OF DEPOSITARY SHARES WHO ELECT TO CONVERT THEIR
DEPOSITARY SHARES WILL RECEIVE UPON CONVERSION SHARES OF COMMON STOCK (PLUS
CASH IN LIEU OF FRACTIONAL SHARES) HAVING AN AGGREGATE CURRENT MARKET VALUE
(WITHOUT GIVING EFFECT TO COMMISSIONS AND OTHER COSTS WHICH WOULD LIKELY BE
INCURRED ON SALE) EQUAL TO OR GREATER THAN THE REDEMPTION PRICE (ASSUMING, IN
THE CASE OF ANY HOLDER DESIRING TO SELL ANY SUCH SHARES OF COMMON STOCK PRIOR
TO DECEMBER 7, 1995, THAT SUCH HOLDER IS A SELLING STOCKHOLDER SO THAT SUCH
SALE OF SHARES OF COMMON STOCK WILL BE COVERED BY THIS PROSPECTUS AND WILL NOT
BE SUBJECT TO RESTRICTIONS ON TRANSFER AND RESALE DESCRIBED BELOW UNDER
"TEMPORARY TRANSFER RESTRICTIONS"). IT SHOULD BE NOTED, HOWEVER, THAT THE PRICE
OF THE COMMON STOCK RECEIVED UPON CONVERSION WILL FLUCTUATE IN THE MARKET, AND
THE HOLDERS MAY INCUR VARIOUS EXPENSES OF SALE IF SUCH COMMON STOCK IS SOLD.
REGISTRATION OF COMMON STOCK
The sale from time to time of shares of Common Stock acquired by the
Purchasers (i) upon conversion of the Depositary Shares or (ii) pursuant to the
standby arrangements described herein has been registered under the Securities
Act pursuant to the Registration Statement of which this Prospectus forms a
part. In addition, the sale of shares of Common Stock of Selling Stockholders
who desire to offer and sell shares of Common Stock prior to December 7, 1995
has been registered under the Securities Act pursuant to the Registration
Statement of which this Prospectus forms a part. In order to make an election to
have an offer and sale of such shares of Common Stock covered by this
Prospectus, the holder of such shares must provide a written notice (the
"Notice") to such effect, containing the name of the person or entity for whose
account the shares of Common Stock will be offered and sold, the nature of any
position, office or other material relationship which such selling person or
entity has had within the last three years with the Company or any of its
affiliates, the number of the shares of Common Stock owned by such selling
person or entity prior to the consummation of the proposed offering, the number
of shares of Common Stock to be offered pursuant to the Prospectus for such
selling person or entity's account and the number of shares of Common Stock and
(if one percent or more) the percentage of the class to be owned by such
selling person or entity after completion of the offering, as well as any other
related information required under the Securities Act or the rules and
regulations thereunder so as to enable such offer and sale to be made pursuant
to this Prospectus. The Company will then prepare a supplement to this
Prospectus containing the information described above and any other required
information which will be furnished, together with this Prospectus, to the
relevant holder, for use, in connection with any such offer and sale to be made
prior to December 7, 1995. A Notice may be delivered to Chemical Bank, as
transfer agent for the Common Stock (the "Transfer Agent"), between 9:00 a.m.,
New York City time, and 5:00 p.m., New York City time, on any day that the
Transfer Agent is open for business. Notices should be sent by registered mail,
overnight courier or facsimile to the Transfer Agent at Chemical Bank, c/o
Chemical Mellon Shareholder Services, L.L.C., 450 West 33rd Street, 15th Floor,
New York, New York 10001, Attention: Nathan Hill; facsimile: (212) 947-7628,
Attention: Nathan Hill (telephone 212-946-7187). The Company will deliver to
a Selling Stockholder the relevant prospectus supplement, together with this
Prospectus, no
11
<PAGE> 13
later than the third business day after the day the Notice from such Selling
Stockholder is received by the Transfer Agent. For further information regarding
the distribution of any such Selling Stockholder's Common Stock, see "Selling
Stockholders."
Commencing on December 7, 1995 (the third anniversary of the last issuance
of the Depositary Shares), holders of shares of Common Stock issued upon
conversion of the Depositary Shares (other than the Purchasers) who are not
affiliates (as defined under Rule 144 under the Securities Act) of the Company
and have not been affiliates for a period of at least three months prior thereto
will be able to offer and sell such shares of Common Stock without restriction
pursuant to Rule 144(k) under the Securities Act. Therefore, any offers or sales
of shares of Common Stock by any Selling Stockholder after such date will not be
made pursuant to this Prospectus.
TEMPORARY TRANSFER RESTRICTIONS
The following discussion applies to holders who do not elect to have their
offers and sales of shares of Common Stock registered under the Securities Act,
as set forth above under "Registration of Common Stock." A total of 5,750,000
Depositary Shares are currently outstanding. The Depositary Shares and the
underlying Convertible Preferred Stock were not registered under the Securities
Act. The Depositary Shares were issued in 1992 in an offering to qualified
institutional buyers (as defined in Rule 144A under the Securities Act)
("QIBs"), to institutions that are "accredited investors" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) ("institutional accredited
investors") and outside the United States in reliance on Regulation S under the
Securities Act. A total of 5,000,000 Depositary Shares were issued on November
19, 1992. An additional 750,000 Depositary Shares were issued on December 7,
1992 as a result of the exercise by the underwriter of its over-allotment
option. Because of the fungibility of the Depositary Shares, it is not possible
at this time for the Company to determine which Depositary Shares were issued on
November 19, 1992 and which were issued on December 7, 1992.
The issuance by the Company of the shares of Common Stock issued or to be
issued upon conversion of the Depositary Shares has not been registered under
the Securities Act and, except as set forth above under "Registration of Common
Stock," may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons, except pursuant to an exemption from, or in
a transaction not subject to, the registration requirements of the Securities
Act. As a result, except as set forth above under "Registration of Common
Stock," shares of Common Stock received upon conversion of Depositary Shares may
be offered and sold prior to December 7, 1995 only in transactions not requiring
registration under the Securities Act (1) to institutional accredited investors
that, prior to their purchase of the shares of Common Stock, deliver to the
holder a letter in a form which can be obtained from Transfer Agent, (2) outside
the United States to persons other than U.S. persons ("foreign purchasers",
which term shall include dealers or other professional fiduciaries in the United
States acting on a discretionary basis for foreign beneficial owners (other than
an estate or trust)) in reliance upon Regulation S under the Securities Act and
(3) pursuant to the exemption from registration provided by Rule 144 under the
Securities Act (if available).
Each holder converting Depositary Shares for Common Stock will be required
to (1) represent that it is purchasing the Common Stock for its own account or
for one of its accounts and that both it and such account are QIBs or both it
and such account are accredited investors (except if the holder is a bank (as
defined under Section 3(a)(2) of the Securities Act) acting in a fiduciary
capacity in which case any account for which it is acting in a fiduciary
capacity need not be an accredited investor) or both it and such account are
foreign purchasers that are outside the United States (or foreign purchasers
that are dealers or other fiduciaries as referred to above), (2) acknowledge
that the issuance of the shares of the Common Stock has not been registered
under the Securities Act and may not be offered or sold within the United States
or to, or for the account or benefit of, U.S. persons except as set forth below,
(3) agree that if it should resell or otherwise transfer any of the Common Stock
prior to December 7, 1995 it will do so only pursuant to this Prospectus (in
compliance with the procedures set forth above under "Registration of Common
Stock"), or in transactions not requiring registration under the Securities Act
(a) to institutional accredited investors who, prior to such transfer, furnishes
to the Transfer Agent a signed letter containing certain representations and
agreements relating to the restrictions on transfer of such shares of Common
Stock (the form of which letter can be obtained from the Transfer Agent), (b)
outside the
12
<PAGE> 14
United States in compliance with Rule 904 under the Securities Act or (c)
pursuant to the exemption from registration provided by Rule 144 under the
Securities Act (if available) and (4) agree that, in connection with any
transfer pursuant to clause 3(a), (b) or (c) above, it will give the purchaser
or transferee notice of any restrictions on transfer of such shares of Common
Stock. In addition, in the case of any proposed transfer prior to December 7,
1995 (other than those being made pursuant to this Prospectus), the holder will
be required to furnish to the Transfer Agent such certifications, legal opinions
or other information as it may reasonably require to confirm that the proposed
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act.
Prior to December 7, 1995, each stock certificate evidencing shares of
Common Stock issued upon conversion of Depositary Shares or transfer of such
shares of Common Stock (other than shares of Common Stock issued to the
Purchasers or sold by the Selling Stockholders pursuant to this Prospectus) will
be issued in certificated form only and will bear a legend in substantially the
following form:
THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. THE HOLDER HEREOF AGREES THAT UNTIL DECEMBER 7, 1995, IT WILL NOT
RESELL OR OTHERWISE TRANSFER THE COMMON STOCK EVIDENCED HEREBY EXCEPT IN (A) A
TRANSACTION REGISTERED UNDER THE SECURITIES ACT, OR (B) A TRANSACTION NOT
REQUIRING REGISTRATION UNDER THE SECURITIES ACT (1) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO CHEMICAL BANK, AS
TRANSFER AGENT OF THE COMMON STOCK, A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE
COMMON STOCK EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM
SUCH TRANSFER AGENT), (2) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904
UNDER THE SECURITIES ACT OR (3) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND, IN CONNECTION
WITH ANY SUCH TRANSFER PURSUANT TO CLAUSE (1), (2) OR (3) ABOVE, IT WILL FURNISH
TO CHEMICAL BANK, AS TRANSFER AGENT, SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IT WILL DELIVER TO EACH
PERSON TO WHOM THE COMMON STOCK EVIDENCED HEREBY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED AFTER
DECEMBER 7, 1995 OR UPON THE EARLIER SATISFACTION OF CHEMICAL BANK, AS TRANSFER
AGENT, THAT THE COMMON STOCK HAS BEEN OR IS BEING OFFERED AND SOLD IN COMPLIANCE
WITH RULE 904 UNDER THE SECURITIES ACT OR PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT. AS USED HEREIN, THE TERMS "UNITED STATES"
AND "UNITED STATES PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT.
Prior to December 7, 1995, shares of Common Stock received upon conversion
of Depositary Shares (other than shares of Common Stock issued to the Purchasers
or sold by the Selling Stockholders pursuant hereto) may not be traded on the
NYSE and may not be held in book-entry form through DTC or any other book-entry
transfer facility.
Commencing on December 7, 1995, holders of shares of Common Stock issued
upon conversion of the Depositary Shares who are not affiliates (as defined
under Rule 144 under the Securities Act) of the Company and have not been
affiliates for a period of at least three months prior thereto will be able to
offer and sell such
13
<PAGE> 15
shares of Common Stock without restriction pursuant to Rule 144(k) under the
Securities Act, and such shares of Common Stock may be traded on the NYSE and
held in book-entry form through DTC or another book-entry transfer facility.
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, as of
November 9, 1995, 2,875,000 shares of $5.50 Convertible Preferred Stock, par
value $5.00 per share (the "Convertible Preferred Stock") were issued and
outstanding and 240,000 shares of Series A Junior Participating Convertible
Preferred Stock, par value $5.00 per share (the "Junior Preferred Shares") were
reserved for issuance and 250,000,000 shares of Common Stock, par value $.01 per
share, of which, as of November 9, 1995, 86,226,703 were issued and outstanding.
All of the outstanding shares of capital stock of the Company are fully paid and
nonassessable. Holders of the Company's capital stock have no preemptive rights.
The Company has called all of the outstanding shares of Convertible Preferred
Stock for redemption on the Redemption Date pursuant to the terms of the
Company's Certificate of Designations for the Convertible Preferred Stock.
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, as amended, 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 receive
dividends out of assets legally available therefor at such times and in such
amounts as the Board of Directors may from time to time determine.
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 outstanding share of Common Stock is entitled
to one vote on all matters submitted to a vote of stockholders. There is no
cumulative voting. The Board of Directors is expressly authorized to adopt,
amend or repeal the By-laws of the Company in any manner not inconsistent with
the laws of the State of Delaware or the Restated Certificate of Incorporation
of the Company, subject to the power of the stockholders to adopt, amend or
repeal the By-laws or to limit or restrict the power of the Board of Directors
to adopt, or repeal the By-laws, and the Company may in its By-laws confer
powers and authorities upon its Board of Directors in addition to those
conferred upon it by statute.
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 of the Company which are legally available for distribution,
after payment of all debts and other liabilities.
REDEMPTION AND PREEMPTIVE RIGHTS
The shares of Common Stock are neither redeemable nor convertible, and the
holders thereof have no preemptive or subscription rights to purchase any
securities of the Company.
APPROVAL OF CERTAIN MERGERS, CONSOLIDATIONS, SALES AND LEASES
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
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<PAGE> 16
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 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
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<PAGE> 17
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, as 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 Convertible Preferred Stock, par value $5.00 per 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,
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<PAGE> 18
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 transferred, 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.
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, as amended, and the Certificate of Designations
for the Junior Preferred Shares described below.
GENERAL
The Company's Restated 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, the
relative, participating and optional or other rights, qualifications,
limitations and restrictions as set forth in resolutions providing for the issue
thereof adopted by the Board of Directors or a duly authorized commission
thereof. The Convertible Preferred Stock and the Junior Preferred Shares that
may be issued in connection with the Company's Stockholder Rights Plan (see
"Description of Common Stock -- Stockholder 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 Company has called all of the outstanding shares of Convertible
Preferred Stock for redemption on the Redemption Date pursuant to the terms of
the Company's Certificate of Designations for the Convertible Preferred Stock.
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."
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<PAGE> 19
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 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.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
AS A REAL PROPERTY HOLDING CORPORATION
The Company believes that the Company would likely constitute a United
States real property holding corporation within the meaning of the Internal
Revenue Code of 1986, as amended (the "Code"). Under certain provisions of the
Code and Treasury Regulations thereunder, gain realized by a non-United States
person who would not ordinarily be subject to U.S. federal income tax on gains
would, under certain circumstances, be subject to tax (the "special tax") on
gain realized on the disposition (and possible withholding tax on the proceeds
from such disposition (the "withholding tax")) of Common Stock, notwithstanding
such non-United States person's lack of other connections with the United
States. However, because the Common Stock of the Company is "regularly traded on
an established securities market" (within the meaning of Section 897(c)(3) of
the Code), under the Code and Temporary Treasury Regulations now in effect, the
special tax and the withholding tax would apply to the disposition by a non-U.S.
person of an interest in a class of Common Stock that is not regularly traded on
an established securities market only if on the date such interest was acquired
by such person it had a fair market value greater than the fair market value on
that date of 5% of the regularly traded class of Common Stock with the lowest
fair market value. However, if such non-regularly traded class of Common Stock
is convertible into a regularly traded class of Common Stock, the special tax
and the withholding tax would apply to the disposition of an interest in such
non-regularly traded class of Common Stock only if on the date such interest was
acquired by such person it had a fair market value greater than the fair market
value on that date of 5% of the regularly traded class of Common Stock into
which it is convertible. The special tax (but, except in certain circumstances,
not the withholding tax) would likewise apply to a disposition of an interest in
a class of Common Stock that is regularly traded on an established securities
market by a non-U.S. person who beneficially owns, directly or indirectly, more
than 5% of such class of Common Stock at any time during the five-year period
immediately preceding the disposition of the interest.
Each prospective holder of Common Stock is urged to consult its own tax
advisors regarding the United States federal tax consequences of an investment
in such Common Stock, as well as the tax consequences under the laws of any
state, local or other United States or non-United States taxing jurisdiction.
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<PAGE> 20
STANDBY ARRANGEMENT
Upon the terms and subject to the conditions contained in the Standby
Agreement dated November 13, 1995 between the Company and the Purchasers (the
"Standby Agreement"), in the event that less than all of the Depositary Shares
are surrendered for conversion prior to 5:00 p.m., New York City time, on the
Final Conversion Date, the Purchasers have agreed to purchase from the Company
such whole number of shares (the "Purchased Shares") of Common Stock as would
have been issuable upon conversion of the Depositary Shares as are not
surrendered for conversion prior to 5:00 p.m., New York City time, on the Final
Conversion Date. The price to be paid by the Purchasers for the Purchased
Shares will be $38.29 per share. The Company would use the net proceeds from
any such purchase to pay the Redemption Price of the Depositary Shares not
surrendered for conversion. The Purchasers may also purchase Depositary Shares
from existing holders thereof in compliance with the transfer restrictions
applicable thereto prior to 5:00 p.m., New York City time, on the Final
Conversion Date. The Purchasers have agreed with the Company to convert all
Depositary Shares so purchased or otherwise held by the Purchasers into Common
Stock and not to sell or otherwise dispose of any Depositary Shares except for
sales to another Purchaser.
The Purchasers have agreed to pay to the Company 50% of the excess
determined in accordance with the terms of the Standby Agreement, if any, of the
aggregate proceeds received on the sale of the Purchased Shares (net of selling
concessions, transfer taxes and other related expenses of sale) over
$38.29 per share.
The Company has been advised by the Purchasers that they propose to offer
for resale any shares of Common Stock purchased from the Company or acquired
upon conversion as set forth on the cover page of this Prospectus. The
Purchasers may also make sales of such shares to certain securities dealers at
prices that may reflect concessions from the prices at which such shares are
then being offered to the public. The amount of such concessions will be
determined from time to time by the Purchasers.
Under the terms of the Standby Agreement and as compensation for the
commitment of the Purchasers thereunder, the Company has agreed to pay the
Purchasers the sum of $4,153,911, plus an additional sum as follows: (i) if the
total number of Purchased Shares is greater that 394,972, but less than or equal
to 1,974,859, the additional sum will equal $0.9573 per share for all
Purchased Shares and (ii) if the total number of Purchased Shares is greater
than 1,974,859, the additional sum will equal $1.3402 per share for all
Purchased Shares.
Pursuant to the Standby Agreement, the Company has agreed that it will not,
without the written consent of the Purchasers, sell, contract to sell, or
otherwise dispose of any shares of Common Stock, with certain exceptions, for a
period commencing on the date hereof and ending 60 days after the Redemption
Date; provided that if the Purchasers do not acquire more than 394,972 Purchased
Shares pursuant to the Standby Agreement, the Company will no longer be bound by
such restriction.
The Company has agreed to indemnify the Purchasers against certain
liabilities, including liabilities under the Securities Act.
Salomon Brothers Inc has performed investment banking services for the
Company from time to time in the ordinary course of its business.
As of November 9, 1995, Salomon Brothers Inc owned 79,235 Depositary
Shares. As of November 9, 1995, SBC Capital Markets Inc., which is indirectly
wholly-owned by Swiss Bank Corporation, owned 349,800 Depositary Shares which
it has agreed with the Company to convert into Common stock prior to the Final
Conversion Date. In addition, as of November 9, 1995, Swiss Bank Corporation,
London branch, owned 12,279 Depositary Shares. Pursuant to the Standby
Agreement, S.G. Warburg & Co. Inc., an indirect wholly-owned subsidiary of
Swiss Bank Corporation and one of the Purchasers, has agreed to cause Swiss
Bank Corporation London branch not to sell or otherwise dispose of such
Depositary Shares except upon conversion thereof or to another Purchaser.
SELLING STOCKHOLDERS
The Common Stock received upon conversion of the Depositary Shares may be
sold from time to time prior to December 7, 1995 pursuant hereto by the Selling
Stockholders identified in the accompanying Prospectus Supplement. See
"Redemption of Depositary Shares and Expiration of Conversion Privileges --
Registration of Common Stock." A Selling Stockholder may sell such shares of
Common Stock in one or more transactions (which may involve one or more block
transactions) on the NYSE or exchanges outside the U.S., 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 such shares of Common Stock may be sold directly or through brokers acting on
behalf of such Selling Stockholder or to dealers for resale by such dealers; and
in connection
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with such sales, such brokers or dealers may receive compensation in the form of
discounts or commissions from such Selling Stockholder and/or the purchasers of
such shares of Common Stock for whom they may act as broker or agent. All
expenses of registration incurred in connection with the offering of such shares
of Common Stock 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.
A Selling Stockholder and any dealer participating in the distribution of
any such shares of Common Stock or any broker executing selling orders on behalf
of such 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 such shares of Common Stock by such 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 by the Selling
Stockholder of such shares of Common Stock in connection with the offering of
such shares of Common Stock may be deemed to be an "underwriter" within the
meaning of the Securities Act and will be required to deliver a copy of this
Prospectus, together with the accompanying Prospectus Supplement, to any person
who purchases any shares of Common Stock from or through such broker or dealer.
VALIDITY OF COMMON STOCK
The validity of the Common Stock will be passed upon for the Company by
White & Case, 1155 Avenue of the Americas, New York, New York, and for the
Purchasers by Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York.
EXPERTS
The audited consolidated financial statements and schedules 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 incorporated by reference herein in reliance upon the authority
of said firm as experts in auditing and accounting in giving said reports.
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NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE 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 ANY AGENT, DEALER OR UNDERWRITER. 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 DATES AS OF WHICH INFORMATION IS GIVEN IN THIS PROSPECTUS. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO
BUY, TO ANY PERSON IN ANY JURISDICTION WHERE SUCH OFFER OR SOLICITATION WOULD BE
UNLAWFUL OR IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO.
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
AVAILABLE INFORMATION................. 3
INCORPORATION OF CERTAIN DOCUMENTS BY
REFERENCE........................... 3
RISK FACTORS.......................... 4
THE COMPANY........................... 6
RECENT DEVELOPMENTS................... 7
USE OF PROCEEDS....................... 8
PRICE RANGE OF COMMON STOCK AND
DIVIDEND POLICY..................... 8
CAPITALIZATION........................ 8
SELECTED FINANCIAL DATA............... 9
REDEMPTION OF DEPOSITARY SHARES AND
EXPIRATION OF CONVERSION
PRIVILEGES.......................... 10
DESCRIPTION OF CAPITAL STOCK.......... 14
DESCRIPTION OF COMMON STOCK........... 14
DESCRIPTION OF PREFERRED STOCK........ 17
CERTAIN FEDERAL INCOME TAX
CONSIDERATIONS AS A REAL PROPERTY
HOLDING CORPORATION................. 18
STANDBY ARRANGEMENT................... 19
SELLING STOCKHOLDERS.................. 19
VALIDITY OF COMMON STOCK.............. 20
EXPERTS............................... 20
</TABLE>
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7,899,436 SHARES
NEWMONT MINING
CORPORATION
COMMON STOCK
($1.60 par value)
-------------------
PROSPECTUS
-------------------
SALOMON BROTHERS INC
GOLDMAN, SACHS & CO.
S.G.Warburg & Co. Inc.
Prospectus Dated November 14, 1995
- ------------------------------------------------------
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<PAGE> 23
Part II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.*
<TABLE>
<S> <C>
SEC filing fee.................................................................. $111,681.68
Accounting fees and expenses.................................................... 30,000.00
Legal fees and expenses......................................................... 200,000.00
Blue Sky and Legal Investment fees and expenses................................. 20,000.00
Transfer Agent's fees........................................................... 5,000.00
Printing and engraving expenses................................................. 30,000.00
Miscellaneous................................................................... 3,318.32
------------
Total........................................................................... $400,000.00
============
</TABLE>
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* All estimates except for filing fee.
ITEM 15. 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.
II-1
<PAGE> 24
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION OF DOCUMENTS
-------------- --------------------------------------------------------------------------
<S> <C> <C>
1.1 -- Form of Standby Purchase Agreement between the registrant and Salomon
Brothers Inc, Goldman Sachs & Co. and SBC Warburg as the Purchasers
relating to the Common Stock.
4.1 -- Restated Certificate of Incorporation dated as of July 13, 1987.
Incorporated by reference to Exhibit 3 to registrant's Form 10-K for the
year ended December 31, 1987.
4.2 -- By-Laws as amended through June 24, 1992 and adopted June 24, 1992.
Incorporated by reference to Exhibit (3)b to registrant's Form 10-K for
the year ended December 31, 1992.
4.3 -- Certificate of Designations, Preferences and Rights of $5.50 Convertible
Preferred Stock, $5 Par Value, dated November 13, 1992. Incorporated by
reference to Exhibit (3)c to registrant's Form 10-K for the year ended
December 31, 1992.
4.4 -- Rights Agreement dated as of September 23, 1987 between the registrant and
Manufacturers Hanover Trust Company as Equal Value Agent relating to the
Equal Value Rights. Incorporated by reference to Exhibit 1 to registrant's
Registration Statement on Form 8-A dated September 25, 1987.
4.5 -- First Amendment dated as of October 1, 1987 amending the Rights Agreement
dated as of September 23, 1987 between registrant and Manufacturers
Hanover Trust Company, as Rights Agent. Incorporated by reference to
Exhibit (4)b to registrant's Form 10-K for the year ended December 31,
1990.
4.6 -- Second Amendment dated as of May 1, 1989 amending the Rights Agreement
dated as of September 23, 1987 between registrant and Manufacturers
Hanover Trust Company, as Rights Agent. Incorporated by reference to
Exhibit 1 to registrant's Form 8 dated June 7, 1989.
4.7 -- Rights Agreement dated August 30, 1990 between registrant and
Manufacturers Hanover Trust Company, as Rights Agent. Incorporated by
reference to Exhibit 1 to registrant's Registration Statement on Form 8-A
dated August 31, 1990.
4.8 and 4.9 -- First Amendment dated November 27, 1990 and Second Amendment dated
December 7, 1990 to the aforementioned Rights Agreement dated August 30,
1990. Incorporated by reference to Exhibits 2 and 3, respectively, to
registrant's Form 8 dated December 7, 1990.
4.10 -- Third Amendment dated February 26, 1992 to the aforementioned Rights
Agreement dated August 30, 1990. Incorporated by reference to Exhibit 4 to
registrant's Form 8 dated March 17, 1992.
4.11 -- Deposit Agreement dated as of November 15, 1992 among the registrant,
Chemical Bank, as Depositary and all holders from time to time of depositary
receipts issued thereunder. Incorporated by reference to Exhibit 4(j) to
registrant's Registration Statement on Form S-3 (File No. 33-65274).
5 -- Opinion of White & Case.
23.1 -- Consent of Arthur Andersen LLP.
23.2 -- Consent of White & Case (included in Exhibit 5).
24 -- Power of Attorney of certain officers and directors.
</TABLE>
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
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
II-2
<PAGE> 25
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 with or furnished to the
Commission by the Registrant 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
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof;
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering;
(4) that, for purposes of determining any liability under the Act,
each filing of the Registrant'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;
(5) to supplement the prospectus, after the Final Conversion Date, to
set forth the number of shares of Common Stock issued upon conversion of
the Depositary Shares, the transactions by the Purchasers prior to the
Final Conversion Date, the number of shares of Common Stock to be purchased
by the Purchasers directly from the Company, and the terms of any
subsequent reoffering thereof. If any public offering by the Purchasers is
to be made on terms differing from those set forth on the cover page of the
prospectus, a post-effective amendment will be filed to set forth the terms
of such offering; and
(6) 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 Act may be
permitted to directors, officers and controlling persons of the Company pursuant
to the foregoing provisions, or otherwise, the Company has been advised that in
the opinion of the Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Company of expenses incurred or paid by a director, officer or controlling
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 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-3
<PAGE> 26
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-3 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 14TH DAY OF
NOVEMBER, 1995.
NEWMONT MINING CORPORATION
/s/ TIMOTHY J. SCHMITT
By:
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 (WHO
INCLUDE A MAJORITY OF THE BOARD OF DIRECTORS) IN THE CAPACITIES AND ON THE DATES
INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------- ------------------------------------ ------------------
<C> <S> <C>
* Director November 14, 1995
- -------------------------------------
Rudolph I.J. Agnew
* Director November 14, 1995
- -------------------------------------
J.P. Bolduc
* Chairman, President and Chief November 14, 1995
- ------------------------------------- Executive Officer and Director
Ronald C. Cambre (Principal Executive Officer)
* Director November 14, 1995
- -------------------------------------
Joseph P. Flannery
* Director November 14, 1995
- -------------------------------------
Thomas A. Holmes
* Director November 14, 1995
- -------------------------------------
Robin A. Plumbridge
* Director November 14, 1995
- -------------------------------------
Moeen A. Qureshi
* Director November 14, 1995
- -------------------------------------
Michael K. Reilly
* Director November 14, 1995
- -------------------------------------
William I.M. Turner, Jr.
</TABLE>
II-4
<PAGE> 27
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------- ------------------------------------ ------------------
<C> <S> <C>
* Senior Vice President and November 14, 1995
- ------------------------------------- Chief Financial Officer
Wayne W. Murdy (Principal Financial Officer)
* Vice President and Controller November 14, 1995
- ------------------------------------- (Principal Accounting Officer)
Gary E. Farmar
</TABLE>
/s/ TIMOTHY J. SCHMITT
*By:
Timothy J. Schmitt
as Attorney-in-fact
II-5
<PAGE> 28
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBER
--------------
<S> <C> <C>
1.1 -- Form of Standby Purchase Agreement between the registrant and Salomon
Brothers Inc, Goldman Sachs & Co. and SBC Warburg as the Purchasers
relating to the Common Stock.
4.1 -- Restated Certificate of Incorporation dated as of July 13, 1987.
Incorporated by reference to Exhibit 3 to registrant's Form 10-K for the
year ended December 31, 1987.
4.2 -- By-Laws as amended through June 24, 1992 and adopted June 24, 1992.
Incorporated by reference to Exhibit (3)b to registrant's Form 10-K for
the year ended December 31, 1992.
4.3 -- Certificate of Designations, Preferences and Rights of $5.50 Convertible
Preferred Stock, $5 Par Value, dated November 13, 1992. Incorporated by
reference to Exhibit (3)c to registrant's Form 10-K for the year ended
December 31, 1992.
4.4 -- Rights Agreement dated as of September 23, 1987 between the registrant and
Manufacturers Hanover Trust Company as Equal Value Agent relating to the
Equal Value Rights. Incorporated by reference to Exhibit 1 to registrant's
Registration Statement on Form 8-A dated September 25, 1987.
4.5 -- First Amendment dated as of October 1, 1987 amending the Rights Agreement
dated as of September 23, 1987 between registrant and Manufacturers
Hanover Trust Company, as Rights Agent. Incorporated by reference to
Exhibit (4)b to registrant's Form 10-K for the year ended December 31,
1990.
4.6 -- Second Amendment dated as of May 1, 1989 amending the Rights Agreement
dated as of September 23, 1987 between registrant and Manufacturers
Hanover Trust Company, as Rights Agent. Incorporated by reference to
Exhibit 1 to registrant's Form 8 dated June 7, 1989.
4.7 -- Rights Agreement dated August 30, 1990 between registrant and
Manufacturers Hanover Trust Company, as Rights Agent. Incorporated by
reference to Exhibit 1 to registrant's Registration Statement on Form 8-A
dated August 31, 1990.
4.8 and 4.9 -- First Amendment dated November 27, 1990 and Second Amendment dated
December 7, 1990 to the aforementioned Rights Agreement dated August
30, 1990. Incorporated by reference to Exhibits 2 and 3, respectively, to
registrant's Form 8 dated December 7, 1990.
4.10 -- Third Amendment dated February 26, 1992 to the aforementioned Rights
Agreement dated August 30, 1990. Incorporated by reference to Exhibit 4 to
registrant's Form 8 dated March 17, 1992.
4.11 -- Deposit Agreement dated as of November 15, 1992 among the registrant,
Chemical Bank, as Depositary and all holders from time to time of depositary
receipts issued thereunder. Incorporated by reference to Exhibit 4(j) to
registrant's Registration Statement on Form S-3 (File No. 33-65274).
5 -- Opinion of White & Case.
23.1 -- Consent of Arthur Andersen LLP.
23.2 -- Consent of White & Case (included in Exhibit 5).
24 -- Power of Attorney of certain officers and directors.
</TABLE>
II-6
<PAGE> 1
NEWMONT MINING CORPORATION
Standby Agreement
New York, New York
November 13, 1995
Salomon Brothers Inc
As Representative of the
several Purchasers
c/o Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Dear Sirs:
Newmont Mining Corporation, a Delaware corporation (the
"Company"), intends to call for redemption on December 14, 1995 (the
"Redemption Date"), all its outstanding Depositary Shares (the "Redeemable
Securities"), each representing ownership of one-half of a share of the
Company's $5.50 Convertible Preferred Stock, par value $5.00 (the "Convertible
Preferred Stock"), at $51.925 plus accrued and unpaid dividends to and
including the Redemption Date for a total redemption price of $52.605 per share
of Redeemable Securities. The Redeemable Securities representing one or more
whole shares of Convertible Preferred Stock are convertible into whole shares
of the Common Stock, $1.60 par value, of the Company ("Common Stock") at any
time prior to 5:00 P.M., New York City time, on December 4, 1995 (the
"Conversion Date").
In order to ensure that the Company will have available
sufficient funds to redeem any Redeemable Securities not converted prior to
5:00 P.M., New York City time, on the Conversion Date, the Company desires to
make arrangements pursuant to which the purchasers named in Schedule I hereto
(each a "Purchaser" and collectively the "Purchasers"), for whom you (the
"Representative") are acting as Representative, will following the Conversion
Date purchase whole shares of Common Stock that would have been issuable upon
the conversion of the Redeemable Securities that have not been surrendered for
conversion prior to 5:00 P.M., New York City time, on the Conversion Date.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Purchaser as set forth below
in this Section 1.
<PAGE> 2
2
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"). A
registration statement including a prospectus, relating to the
Securities (as defined below) has been or will be filed with the
Securities and Exchange Commission (the "Commission") and has become
effective or will become effective within one business day of the date
hereof. Such registration statement, as amended at the Execution Time
(as defined below), is hereinafter referred to as the "Registration
Statement", and the prospectus included in such Registration
Statement, and as supplemented in the form used to confirm sales of
the Securities by certain selling stockholders, including all material
incorporated by the reference therein, is hereinafter referred to as
the "Prospectus".
(b) On the Effective Date (as defined below), the Registration
Statement did, and the Prospectus (and any supplements thereto) will,
as long as a Prospectus is required to be delivered in connection with
sales of the Securities, comply in all material respects with the
applicable requirements of the Act and the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the rules and regulations
thereunder; on the Effective Date, the Registration Statement did not
and (if applicable) will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not misleading;
and the Prospectus (together with any supplement thereto), as long as a
Prospectus is required to be delivered in connection with sales of the
Securities, will not include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or
omitted from the Registration Statement or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished to the Company by or on behalf of any Purchaser through the
Representative specifically for inclusion in the Registration Statement
or the Prospectus (or any supplement thereto). The term "Effective
Date" shall mean each date that the Registration Statement and any
post-effective amendment or amendments thereto became or
<PAGE> 3
3
become effective and each date after the date hereof on which a
document incorporated by reference in the Registration Statement is
filed with the Commission; provided that filing occurs during the time
when a Prospectus relating to the Securities is required to be
delivered under the Act.
(c) The Redeemable Securities representing one or more whole
shares of Convertible Preferred Stock are convertible into shares of
Common Stock at a conversion price of $36.395 per share of Common
Stock. At the Execution Time, there were outstanding 5,750,000 shares
of Redeemable Securities; the redemption of all the outstanding
Redeemable Securities had been duly authorized by the Company; by the
close of business on the business day following the Execution Time,
all the Redeemable Securities shall have been duly called for
redemption in accordance with the Certificate of Designations relating
to the Convertible Preferred Stock and the Deposit Agreement (the
"Deposit Agreement") dated as of November 15, 1992 between the
Company, Chemical Bank, as Depositary (the "Depositary"), and holders
of the Redeemable Securities; and the right to convert the Redeemable
Securities into shares of Common Stock will, as a result of such call,
expire at 5:00 P.M., New York City time, on the Conversion Date. A
copy of the form of notice of redemption and the related letter of
transmittal (collectively, the "Notice of Redemption") has been
heretofore delivered to you. The Redeemable Securities have been duly
and validly authorized and issued and are fully paid and
nonassessable. The term "Execution Time" shall mean the date and time
that this Agreement is executed and delivered by the parties hereto.
(d) The Company has neither taken nor will take, directly or
indirectly, any action designed to cause or result in, or that has
constituted or that might reasonably be expected to cause or result
in, stabilization or manipulation of the price of any security of the
Company to facilitate the conversion of the Redeemable Securities.
(e) Except as otherwise contemplated hereby, the Company has
neither paid nor given, nor will pay or give, directly or indirectly,
any commission or other remuneration for soliciting the conversion of
Redeemable Securities into Common Stock and cash.
<PAGE> 4
4
(f) The execution, delivery and performance of this Agreement,
the call of the Redeemable Securities for redemption, the conversion
and redemption thereof, the issuance and sale of the Securities and
compliance with the terms and provisions thereof, and the consummation
of the transactions contemplated by this Agreement will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, the Restated Certificate of Incorporation
or By-Laws of the Company or the terms of any material indenture or
other material agreement or instrument to which the Company or any of
its subsidiaries is a party or is bound or any statute, rule,
regulation, judgment, order or decree applicable to the Company or any
of its subsidiaries of any federal or New York State governmental
agency or body or court having jurisdiction over the Company or any of
its subsidiaries or material properties.
2. Purchase and Conversion of Redeemable Securities. Subject
to the terms and conditions and in reliance upon the representations and
warranties herein set forth:
(a) Each Purchaser agrees not to sell 0r otherwise dispose of
any Redeemable Securities owned by such Purchaser on the date hereof, except as
provided herein and except for any sale or other disposition to another
Purchaser. S.G.Warburg & Co. Inc. also agrees to cause Swiss Bank
Corporation, London branch to comply with this Subsection 2(a). Each Purchaser,
severally and not jointly, agrees to surrender for conversion into Common Stock
prior to 5:00 P.M., New York City time, on the Conversion Date all Redeemable
Securities owned by such Purchaser on the Conversion Date as set forth in
Section 4 hereof or otherwise held by such Purchaser on the Conversion Date.
The shares of Common Stock issued to the Purchasers upon the conversion of
Redeemable Securities are referred to as the "Conversion Securities".
(b) If any Redeemable Securities have not been surrendered for
conversion prior to 5:00 P.M., New York City time, on the Conversion Date, the
Company shall sell to each Purchaser, and each Purchaser, severally and not
jointly, shall purchase from the Company, at a purchase price of $38.29 per
share, such number of shares of Common Stock as shall equal the number of shares
of Common Stock that would have been issuable upon conversion of all Redeemable
Securities not surrendered for conversion multiplied by the percentage set forth
opposite such Purchaser's name in Schedule I hereto (rounded to the nearest
whole number of
<PAGE> 5
5
shares). The shares of Common Stock to be purchased pursuant to this Section
2(b) are referred to as the "Purchased Securities" and, together with the
Conversion Securities, the "Securities".
(c) It is understood that the Purchasers intend to resell the
Securities from time to time at prices prevailing in the open market. On or
prior to the tenth day after the Redemption Date, or if such day is not a
business day, the next succeeding business day, each Purchaser shall remit to
the Company 50% of the excess, if any, of the aggregate proceeds received by
such Purchaser from the sale of the Purchased Securities (net of selling
concessions, transfer taxes and other expenses of sale) over an amount equal to
$38.29 multiplied by the number of Securities sold by such Purchaser. Upon
completion of the sale of the Securities, each Purchaser shall furnish to the
Company a statement setting forth the aggregate proceeds received on the sale
thereof and the applicable selling concessions, transfer taxes and other
expenses of sale. For purposes of the foregoing determination, any Securities
not sold by or for the account of the Purchaser prior to the close of business
on the tenth day after the Redemption Date, or if such date is not a business
day, the next succeeding business day shall be deemed to have been sold on such
tenth day for an amount equal to the average of the high and low sale prices of
the Common Stock on such day as reported on the New York Stock Exchange.
Nothing contained herein shall limit the right of the Purchasers, in their
discretion, to determine the price or prices at which, or the time or times
when, any Securities shall be sold, whether or not prior to the Redemption Date
and whether or not for long or short account.
(d) Delivery of and payment for the Purchased Securities shall
be made at 10:00 A.M., New York City time, on December 8, 1995, or such later
date (not later than December 14, 1995) as the Representative and the Company
may agree, which date and time may be postponed by agreement between the
Representative and the Company or as provided in Section 9 hereof (such date and
time of delivery and payment for the Purchased Securities being herein called
the "Closing Date"). Delivery of the Purchased Securities shall be made to the
Representative for the respective accounts of the several Purchasers against
payment by the several Purchasers through the Representative of the purchase
price thereof to or upon the order of the Company by certified or official bank
check or checks drawn on or by a New York Clearing House bank and payable in
next day funds. Delivery
<PAGE> 6
6
of the Purchased Securities shall be made at such location as the Representative
shall reasonably designate at least one business day in advance of the Closing
Date and payment for the Purchased Securities shall be made at the office of
Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York. Certificates
for the Purchased Securities shall be registered in such names and in such
denominations as the Representative may request not less than three full
business days in advance of the Closing Date.
The Company agrees to have the Purchased Securities available
for inspection, checking and packaging by the Representative in New York, New
York, not later than 1:00 P.M. on the business day prior to the Closing Date.
3. Compensation. As compensation for the commitment of the
Purchasers hereunder, the Company will pay to the Representative for the
respective accounts of (A) each of the Representative and Goldman, Sachs & Co.,
an amount equal to the sum of (i) $1,421,606 plus (ii) if the aggregate number
of the Purchased Securities exceeds 1,974,859 shares, an additional $1.3402
per Purchased Security for the aggregate number of all such Purchased Securities
purchased by the Representative and Goldman, Sachs & Co., and if the aggregate
number of Purchased Securities exceeds 394,972 shares but is less than or equals
1,974,859 shares, an additional $0.9573 per Purchased Security for the aggregate
number of all such Purchased Securities purchased by the Representative and
Goldman, Sachs & Co., and (B) S.G. Warburg & Co. Inc. an amount equal to the sum
of (i) $1,310,699 plus (ii) if the aggregate number of the Purchased Securities
exceeds 1,974,859 shares, an additional $1.34 per Purchased Security for the
aggregate number of all such Purchased Securities purchased by S.G. Warburg &
Co. Inc. and if the aggregate number of Purchased Securities exceeds 394,972
shares but is less than or equals 1,974,859 shares, an additional $0.96 per
Purchased Security for the aggregate number of all such Purchased Securities
purchased by S.G. Warburg & Co. Inc.
Such compensation shall be paid to the Representative for the
respective accounts of the several Purchasers by certified or official bank
check or checks drawn on or by a New York Clearing House bank and payable in
next day funds on (A) if the Purchasers are required to purchase any Purchased
Securities, the Closing Date, or (B) otherwise, as soon as practicable after the
Redemption Date (but in no event later than two business days thereafter).
<PAGE> 7
7
4. Additional Purchases. The Purchasers may purchase
Redeemable Securities in such amounts and at such prices as the Purchaser may
deem advisable. All Redeemable Securities owned by the Purchasers on the
Conversion Date will be converted by the Purchasers into Common Stock in
accordance with Section 2(a) hereof. The Common Stock acquired by the
Purchasers upon conversion of any Redeemable Securities acquired pursuant to
this Section 4 may be sold at any time or from time to time by the Purchasers.
It is understood that, for the purpose of stabilizing the price of the Common
Stock or otherwise, the Purchasers may make purchases and sales of Common Stock,
in the open market or otherwise, for long or short account, on such terms as
they may deem advisable and they may overallot in arranging sales.
5. Certain Agreements of the Company. The Company agrees
with the several Purchasers that it will furnish to the Purchasers and counsel
for the Purchasers, without charge, one signed copy of the registration
statement relating to the Securities, including all exhibits, in the form it
became effective and of all amendments thereto and that:
(a) During the time when a prospectus relating to the
Securities is required to be delivered under the Act, (i) the Company
will advise the Purchasers promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus and will,
except in the case of a supplement relating only to sales of the
Securities by certain selling stockholders, afford the Purchasers a
reasonable opportunity to comment on any such proposed amendment or
supplement, (ii) the Company will advise the Purchasers promptly of the
filing of any such amendment or supplement and will provide evidence
satisfactory to the Purchasers of such filing, (iii) the Company will
advise the Purchasers promptly of the institution by the Commission of
any stop order proceedings in respect of the Registration Statement or
of any part thereof and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued and (iv) the Company will advise the Purchasers
promptly of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose.
<PAGE> 8
8
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein in the light
of the circumstances under which they were made not misleading, or if
it is necessary at any time to amend or supplement the Prospectus to
comply with the Act, the Company promptly will prepare and file with
the Commission an amendment or supplement which will correct such
statement or omission or effect such compliance. Neither the
Purchasers' consent to nor the Purchasers' delivery of any such
amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(c) The Company will make generally available to its security
holders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration Statement
(as defined in Rule 158(c) under the Act), an earning statement of the
Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the Rules and Regulations (including, at
the option of the Company, Rule 158 under the Act).
(d) The Company will furnish to the Purchasers, without
charge, copies of the Registration Statement, including all exhibits,
any related prospectus relating to the Securities, any related
prospectus supplement and, during the time when a prospectus relating
to the Securities is required to be delivered under the Act, all
amendments and supplements to such documents, in each case as soon as
available and in such quantities as are reasonably requested.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Purchasers reasonably designate and will continue such qualifications
in effect so long as required for the distribution of the Securities;
provided, however, that in no event shall the Company be required to
qualify as a foreign corporation or as a dealer in securities or to
take any action that would subject it to general or unlimited service
of process in any such jurisdiction.
<PAGE> 9
9
(f) The Company will pay or cause to be paid the following:
(i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Securities under
the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, the Prospectus and
amendments and supplements thereto and the mailing and delivering of
copies thereof to the Purchasers and dealers in such quantities as are
agreed herein; (ii) the cost of printing any Agreement among
Purchasers, this Agreement, any Blue Sky Memorandum and any other
documents in connection with the offering, purchase, sale and delivery
of the Securities; (iii) all expenses in connection with the
qualification of the Securities for offering and sale under state
securities laws as provided in Section 5(f), including the reasonable
fees and disbursements of counsel for the Purchasers in connection with
such qualification and in connection with the Blue Sky survey; (iv) the
cost of preparing the Securities; (v) the fees and expenses in
connection with the listing, if any, of the Securities or any Common
Stock issuable upon conversion of Redeemable Securities; (vi) the fees
and expenses of any transfer agent relating to any Common Stock or any
Convertible Preferred Stock; (vii) the fees and expenses of the
Depositary relating to any Redeemable Securities; (viii) the cost of
preparing, printing and distributing the Notice of Redemption and
related documents; (ix) the cost of any advertising pursuant to Section
5(g) and (x) all other costs and expenses incident to the performance
of its obligations hereunder which are not otherwise specifically
provided for in this Section; provided, however, that, except as
provided in this Section, Section 7 and Section 10 hereof, the
Purchasers will pay all of their own costs and expenses, including the
fees of their counsel, and transfer taxes on resale of any of the
Securities by them.
(g) The Company will mail or cause to be mailed not later than
the business day following the date of execution hereof the Notice of
Redemption by first class mail to the registered holders of the
Redeemable Securities as of the close of business on the record date
selected by the Depositary, which mailing will conform to the
requirements of the Certificate of Designations of the Company creating
the Convertible
<PAGE> 10
10
Preferred Stock. The Company will not withdraw or revoke the Notice of
Redemption or attempt to do so.
(h) The Company will advise the Representative daily of the
amount of Redeemable Securities surrendered on the previous day for
conversion.
(i) The Company will not take any action the effect of which
would be to require an adjustment in the conversion price of the
Redeemable Securities.
(j) Until the Redemption Date, the Company will (i) notify you
promptly of any material change affecting any of its representations,
warranties, agreements or indemnities herein and will take such steps
as you may reasonably request to remedy and/or publicize the same to
the extent required by law and (ii) furnish you such other information
concerning the Company as you may reasonably request.
(k) The Company will not, prior to the Redemption Date and for
a period of 60 days following the Redemption Date, without the prior
written consent of the Representative, offer, sell or contract to sell,
or otherwise dispose of, directly or indirectly, or announce the
offering of, any other shares of Common Stock or any securities
convertible into, or exchangeable for, shares of Common Stock;
provided, however , that (x) the Company may issue and sell Common
Stock pursuant to any employee stock option plan, stock ownership plan
or dividend reinvestment plan of the Company in effect on the
Conversion Date and in connection with any bonuses paid in securities
of the Company; (y) the Company may issue Common Stock issuable upon
the conversion of securities or the exercise of warrants outstanding on
the Conversion Date; and (z) the Company may issue Common Stock in
connection with corporate acquisitions; and provided further that the
Company will no longer be bound by this provision if the Purchasers do
not purchase in excess of 394,972 Purchased Securities pursuant to this
Agreement.
(l) The Company has complied and, until the distribution of
the Securities is completed, will comply with all of the provisions of
Florida H.B. 1771, codified as Section 517.075 of the Florida statutes,
and all regulations promulgated thereunder relating to issuers doing
business with Cuba.
<PAGE> 11
11
6. Conditions to the Obligations of the Purchasers. The
obligations of the Purchasers hereunder to convert Redeemable Securities and to
purchase any Purchased Securities will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the written statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) The Representative shall have received letters, dated the
date that is one day after the date of this Agreement and the Closing
Date, of Arthur Andersen & Co., in form and substance satisfactory to
the Representative, confirming that they are independent public
accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder and with respect to the financial and
other statistical and numerical information contained in the
Registration Statement and incorporated therein.
(b) The Registration Statement shall have become effective not
later than 12 noon on the date following the execution of this
Agreement. No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Company or any Purchaser, shall be contemplated by
the Commission.
(c) Subsequent to the Execution Time, there shall not have
occurred (i) any downgrading in the rating of any senior debt
securities of the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Company
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such
rating); (ii) any suspension or limitation in trading in securities
generally on the New York Stock Exchange or any setting of minimum
prices for trading on such Exchange; (iii) any suspension in trading in
the Common Stock of the Company on the New York Stock Exchange imposed
by the New York Stock Exchange or the Commission; (iv) any general
banking moratorium declared by Federal or New York authorities; and (v)
<PAGE> 12
12
any outbreak or material escalation of major hostilities in which the
United States is involved, any declaration of war by Congress or any
other substantial national or international calamity or emergency
which, in the reasonable judgment of the Representative, is so material
and adverse as to make it impractical or inadvisable to proceed with
the completion of the sale of and payment for the Securities.
(d) The Representative shall have received an opinion, dated
the date that is one day after the date of this Agreement and the
Closing Date, of White & Case, counsel for the Company, to the effect
that:
(i) The Company has been duly incorporated and is
an existing corporation in good standing under the laws of the
State of Delaware, with corporate power and authority to own
its properties and conduct its business as described in the
Prospectus;
(ii) The shares of capital stock of the Company
outstanding on the date of this Agreement and the Closing Date,
as the case may be, have been duly authorized, are validly
issued, fully paid and non-assessable, and conform in all
material respects to the description thereof contained in the
Prospectus;
(iii) The outstanding Redeemable Securities have
been duly and validly issued and are fully paid and
nonassessable; assuming the mailing of the Notice of Redemption
in accordance with Section 5(g) hereof, all the Redeemable
Securities will have been duly called for redemption by the
close of business on the business day following the Execution
Time and the right to convert the Redeemable Securities into
shares of Common Stock will expire at 5:00 P.M., New York City
time, on December 4, 1995; the Securities have been duly and
validly authorized and, when issued and delivered upon
conversion of any Redeemable Securities or when issued
delivered and paid for by the Purchasers, as the case may be,
will be fully paid and nonassessable; and the holders of
outstanding shares of capital stock of the Company are not
entitled to preemptive or other rights to subscribe for the
Securities;
<PAGE> 13
13
(iv) The Securities conform in all material
respects to the description thereof contained in the
Prospectus;
(v) No consent, approval, authorization or order
of, or filing with, any New York State or Federal governmental
agency or body or any New York State or Federal court having
jurisdiction over the Company or any of its material
properties is required to be obtained or made by the Company
for the consummation of the transactions contemplated by this
Agreement, except such as have been obtained and made under
the Act and such as may be required under state securities or
Blue Sky laws (as to which such counsel need express no
opinion);
(vi) The execution, delivery and performance of
this Agreement, the call of the Redeemable Securities for
redemption, the conversion and redemption thereof, the
issuance and sale of the Securities will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, the Restated Certificate of
Incorporation or By-Laws of the Company or any statute, rule,
regulation or order applicable to the Company or any of its
subsidiaries of which such counsel is aware of any federal or
New York State governmental agency or body or court having
jurisdiction over the Company or any of its material
properties (other than those that may be required under the
Act and under applicable state securities or Blue Sky laws as
to which such counsel need express no opinion) and the Company
has full corporate power and authority to authorize, issue and
sell the Securities as contemplated by this Agreement;
(vii) The Registration Statement, as of its
effective date, and the Prospectus, as of its date, and any
amendment or supplement thereto, as of its date, appeared on
their face to comply as to form in all material respects with
the requirements of the Act and the Rules and Regulations
thereunder; nothing has come to such counsel's attention which
causes it to believe that the Registration Statement, as of its
effective date, or the Prospectus, as of its date, or any such
amendment or supplement, as of its
<PAGE> 14
14
date, contained or contains any untrue statement of a material
fact or omitted or omits to state any material fact required to
be stated therein or necessary to make the statements therein
(in the case of the Prospectus in the light of the
circumstances under which they were made) not misleading; it
being understood that such counsel need express no opinion as
to the financial statements and schedules or other financial or
statistical data contained in or omitted from or incorporated
by reference in any of the above-mentioned documents; and
(viii) This Agreement has been duly authorized,
executed and delivered by the Company.
(e) The Representative shall have received an opinion, dated
the date that is one day after the date of this Agreement and the
Closing Date, from Graham M. Clark, Jr., Esq., Senior Vice President
and General Counsel of the Company, to the effect that:
(i) The Company and Newmont Gold Company have
been duly incorporated and are existing corporations in good
standing in their state of incorporation and have been duly
qualified to do business and are in good standing as foreign
corporations in all jurisdictions in which their respective
ownership of property or the conduct of their respective
businesses requires such qualification (except where the
failure to so qualify would not have a material adverse effect
upon the Company and its subsidiaries taken as a whole), and
have all power and authority necessary to own their respective
properties and conduct the businesses in which they are
engaged as described in the Prospectus;
(ii) The execution, delivery and performance of
this Agreement, the call of the Redeemable Securities for
redemption, the conversion and redemption thereof and the
issuance and sale of the Securities and compliance with the
terms and provisions thereof, and the consummation of the
transactions contemplated by this Agreement will not result in
a breach or violation of any of the terms and provisions of, or
constitute a default under any order, rule or regulation
applicable to the Company or any of its subsidiaries of which
<PAGE> 15
15
such counsel is aware of any court or governmental agency or
body having jurisdiction over the Company or any of its
material properties or any material agreement or instrument to
which the Company or any material subsidiary is a party or by
which the Company or any such subsidiary is bound or to which
any of the properties of the Company or any such subsidiary is
subject, or the Restated Certificate of Incorporation or
By-Laws of the Company or any such subsidiary;
(iii) Such counsel is not aware of any consent,
approval, authorization or order of, or filing with, any
governmental agency or body or any court having jurisdiction
over the Company or any of its material properties that is
required to be obtained or made by the Company for the
consummation of the transactions contemplated by this
Agreement, except such as may be required under the Act and
under state securities or Blue Sky laws (as to which such
counsel need express no opinion);
(iv) The documents incorporated by reference in the
Prospectus (other than the financial statements and related
schedules and other financial and statistical data contained
therein or omitted therefrom, as to which such counsel need
express no opinion), when they were filed with the Commission,
complied as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations
of the Commission thereunder; and nothing has come to such
counsel's attention which causes such counsel to believe that
any of such documents, when such documents were so filed,
contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading;
(v) Nothing has come to such counsel's attention
which causes such counsel to believe that the Registration
Statement, as of its effective date, or the Prospectus, as of
its date, or any such amendment or supplement, as of its date,
contained or contains any untrue statement of a material fact
or omitted or omits to state
<PAGE> 16
16
any material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus in
the light of the circumstances under which they were made) not
misleading; it being understood that such counsel need express
no opinion as to the financial statements and schedules or
other financial or statistical data contained in or omitted
from or incorporated by reference in any of the above-mentioned
documents; and
(vi) The statements contained in the Company's
Annual Reports on Form 10-K for the year ended December 31,
1994 under the heading "Item 3. Legal Proceedings", and the
statements contained in the Company's Quarterly Reports on Form
10-Q for the quarters ended March 31, 1995, June 30 and
September 30, 1995 under the heading "Item 1. Legal
Proceedings", in each case, which are incorporated by reference
in the Prospectus, insofar as such statements constitute a
summary of the legal documents, matters or proceedings referred
to therein, fairly present the information called for with
respect to such legal documents, matters and proceedings.
(f) The Representative shall have received from Davis Polk &
Wardwell, counsel for the Purchasers, such opinion or opinions, dated
the date that is one day after the date of this Agreement and the
Closing Date, with respect to the incorporation of the Company, the
validity of the Securities, the Registration Statement, the Prospectus
and other related matters as they may require, and the Company shall
have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(g) The Representative shall have received a certificate,
dated the date that is one day after the date of this Agreement and the
Closing Date, of the Chairman of the Board of Directors, President and
Chief Executive Officer, any Senior Vice President or the Treasurer and
a principal financial or accounting officer of the Company in which
such officers, to their knowledge, shall state that the representations
and warranties of the Company in this Agreement are true and correct at
and as of the date of this Agreement or the Closing Date, as the case
may be, that the Company has complied with all agreements and satisfied
all
<PAGE> 17
17
conditions on its part to be performed or satisfied hereunder at or
prior to the date of this Agreement or the Closing Date, as the case
may be, that no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted by the Commission and
that, subsequent to the date of the most recent financial statements in
the Prospectus, there has been no material adverse change in the
condition (financial or other), earnings, business or properties of the
Company and its subsidiaries, whether or not arising from transactions
in the ordinary course of business, except as set forth in or
contemplated by the Prospectus or as described in such certificate.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representative and counsel for the
Purchasers, this Agreement and all obligations of the Purchasers hereunder may
be canceled at, or at any time prior to, the Closing Date by the Representative.
Notice of such cancellation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing.
The Company will furnish the Purchasers, without charge, with
such conformed copies of such opinions, certificates, letters and documents as
they reasonably request.
7. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Purchaser against any losses, claims, damages
or liabilities, joint or several, to which such Purchaser may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each such Purchaser
for any legal or other expenses reasonably incurred by such Purchaser, in
connection with investigating or defending any such loss, claim, damage,
liability or
<PAGE> 18
18
action as such expenses are incurred; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement in or omission or alleged omission from any of such documents
in reliance upon and in conformity with information furnished to the Company by
any Purchaser specifically for inclusion therein; and provided further, that the
Company shall not be liable to any Purchaser under the indemnity agreement in
this subsection (a) to the extent that any such loss, claim, damage or liability
of such Purchaser results from the fact that such Purchaser sold Securities to a
person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus as then amended or
supplemented in any case where such delivery is required by the Act if the
Company has previously furnished copies thereof to such Purchaser and the loss,
claim, damage or liability results from an untrue statement or omission of a
material fact contained in the earlier prospectus which was corrected in the
Prospectus as then amended, supplemented or modified.
(b) Each Purchaser will severally indemnify and hold harmless
the Company against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with information furnished to the Company by such Purchaser
specifically for the use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company in connection with the investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred. The Company acknowledges that the statements set forth in the last
paragraph of the second cover page, in the first paragraph of the second page
and under the heading "Standby Arrangement" in the Prospectus constitute the
only information furnished by or on behalf of the several Purchasers for
inclusion in the Prospectus, and you, as the Representative, confirm that such
statements are correct.
<PAGE> 19
19
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsections (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable cost of investigation. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, which consent shall not be unreasonably withheld, but if
settled with such consent, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement.
(d) If the indemnity provided for in this Section is
unavailable (other than as a result of the provisos contained in subsection (a)
or (b)) or insufficient to hold harmless an indemnified party under subsection
(a) or (b) above, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as result of the losses, claims,
damages or liabilities or actions in respect thereof referred to in subsection
(a) or (b) above in such proportion as is appropriate to reflect the relative
fault of the Company on the one hand and the Purchasers on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations including, relative benefit. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company
<PAGE> 20
20
or the Purchasers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Company and the Purchasers agree that it would not be just and
equitable if contributions pursuant to this subsection (d) were determined by
pro rata allocation (even if the Purchasers were treated as one entity for such
purpose) or any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d). Notwithstanding
the provisions of this subsection (d), no Purchaser shall be required to
contribute any amount in excess of the aggregate of (i) such Purchaser's total
compensation pursuant to Section 3 hereof and (ii) the net proceeds to such
Purchaser from the resale of Purchased Securities in accordance with Section
2(c) hereof. No person guilty of such fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The Purchasers'
obligations in the subsection (d) to contribute are several in proportion to
their respective purchase obligations and not joint.
8. Soliciting Conversions. The Purchasers may assist the
Company in soliciting conversion of the Redeemable Securities by the holders
thereof but shall not be entitled to compensation by the Company for any such
assistance.
9. Default by a Purchaser. If any one or more Purchasers
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Purchaser or Purchasers hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Purchasers shall be obligated severally to take up and
pay for (in the respective proportions which the percentage set forth opposite
their names in Schedule I hereto bears to the aggregate percentage set forth
opposite the names of all remaining Purchasers) the Securities which the
defaulting Purchaser or Purchasers agreed but failed to purchase; provided;
however, that in the event that the aggregate
<PAGE> 21
21
percentage which the defaulting Purchaser or Purchasers agreed but failed to
purchase shall exceed 10%, the remaining Purchasers shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Purchaser does not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Purchaser or the Company. In the event of a default by any Purchaser as set
forth in this Section 9, the Closing Date shall be postponed for such period,
not exceeding seven days, as the Representative shall determine in order that
the required changes in Registration Statement and the Prospectus or in any
other documents or arrangements may be effected. As used in this Agreement, the
term "Purchaser" includes any person substituted for a Purchaser under this
Section. Nothing contained in this Agreement shall relieve any defaulting
Purchaser of its liability, if any, to the Company and any nondefaulting
Purchaser for damages occasioned by its default hereunder.
10. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Purchasers set
forth in or made in writing pursuant to this Agreement will remain in full force
and effect, regardless of any investigation, or statement as to the results
thereof, made by or on behalf of any Purchaser, the Company or any of their
respective representatives, officers or directors or any controlling person and
will survive the conversion of any Redeemable Securities and the delivery of and
payment for the Securities. If for any reason the purchase of the Securities by
the Purchasers under this Agreement is not consummated, the Company shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
5(g) and the respective obligations of the Company and the Purchasers pursuant
to Section 7 shall remain in effect. If the purchase of the Securities by the
Purchasers is not consummated for any reason, other than solely because of the
termination of this Agreement pursuant to Section 9 or the occurrence of any
event specified in clause (ii), (iv) or (v) of Section 6(c), the Company will
reimburse the Purchasers for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) incurred by them in connection with the
offering of the Securities, but the Company shall be under no further liability
to any Purchaser except as provided in Section 7.
<PAGE> 22
22
11. Notices. All statements, requests, notices and agreements
hereunder shall be in writing and if to the Purchasers shall be sufficient in
all respects, if delivered or sent by first class mail, telex, or facsimile
transmission (confirmed in writing by overnight courier sent on the day of such
facsimile transmission) to the address of the Representative as set forth in
this Agreement; and if to the Company shall be sufficient in all respects if
delivered or sent by first class mail, telex, or facsimile transmission
(confirmed in writing by overnight courier sent on the day of such facsimile
transmission) to the address of the Company set forth in the Registration
Statement, Attention: Secretary.
12. Successors. This Agreement will inure to the benefit of
and be binding upon the Company and such Purchasers as are identified in this
Agreement and their respective successors and the officers and directors and
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder.
13. Time of Essence. Time shall be of the essence of this
Agreement. As used herein the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
15. Counterparts. This Agreement may be executed by any ne or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
<PAGE> 23
23
If the foregoing is in accordance with your understanding,
please sign and return three counterparts hereof.
Very truly yours,
NEWMONT MINING CORPORATION
By
-------------------------------------
Name:
Title:
Accepted as of the date hereof:
SALOMON BROTHERS INC
GOLDMAN, SACHS & CO.
S.G. WARBURG & Co. INC.
By: SALOMON BROTHERS INC
By:
--------------------------
Name:
Title: Vice President
On behalf of each of the Purchasers
<PAGE> 1
EXHIBIT 5
November 14, 1995
Newmont Mining Corporation
1700 Lincoln Street
Denver, Colorado 80203
Dear Sirs:
We have examined the Registration Statement on Form S-3 (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 (the "Company"), with the Securities
and Exchange Commission (the "Commission"), relating to the issuance from time
to time of a maximum of 7,899,436 shares (the "Shares") of Common Stock, par
value $1.60 per share of the Company that have been or may be acquired by (i)
Salomon Brothers Inc, Goldman Sachs & Co. and SBC Warburg, a division of Swiss
Bank Corporation (collectively the "Purchasers") upon conversion of the
Depositary Shares (the "Depositary Shares") of the Company, (ii) the Purchasers
pursuant to the standby arrangement described in the Prospectus forming part of
the Registration Statement (the "Standby Arrangement") and (iii) certain other
stockholders to be identified in Prospectus Supplements to the Prospectus
forming part of the Registration Statement who elect to have sales made by them
prior to December 7, 1995 of shares of Common Stock that were issued upon
conversion of the Depositary Shares covered by the Registration Statement.
Based upon our examination of such documents, certificates, records,
authorizations and proceedings as we have deemed relevant, it is our opinion
that the Shares have been duly authorized by all necessary corporate action by
the Company and, when issued, delivered and, in the case of Shares purchased by
the Purchasers pursuant to the Standby Arrangement, paid for as contemplated by
the Prospectus forming part of the Registration Statement, will be validly
issued, fully paid and nonassessable.
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 Section 7 of
the Securities Act or the Rules and Regulations of the Commission.
Very truly yours,
White & Case
<PAGE> 1
[ARTHUR ANDERSEN LLP LETTERHEAD]
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated March 14, 1995
included in Newmont Mining Corporation's Form 10-K for the year ended December
31, 1994 and to all references to our Firm included in this registration
statement.
/s/ ARTHUR ANDERSEN LLP
-----------------------------
Denver, Colorado
November 13, 1995
<PAGE> 1
EXHIBIT 24
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, the number of shares of
Common Stock of the Company that is the maximum number of shares issuable upon
conversion of all outstanding shares of the Company's $5.50 Convertible
Preferred Stock, $5.00 par value per share, 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-3 or such
other form as may be appropriate, and to any and all amendments, including
post-effective amendments, to such 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 13th day of November, 1995.
Signature Title
- --------- -----
/s/ Rudolph I.J. Agnew Director
- ---------------------------------
Rudolph I.J. Agnew
/s/ J.P. Bolduc Director
- ---------------------------------
J.P. Bolduc
<PAGE> 2
/s/ Ronald C. Cambre Chairman, President and
- --------------------------------- Chief Executive Officer
Ronald C. Cambre and Director
(Principal Executive Officer)
/s/ Joseph P. Flannery Director
- ---------------------------------
Joseph P. Flannery
/s/ Thomas A. Holmes Director
- ---------------------------------
Thomas A. Holmes
/s/ Robin A. Plumbridge Director
- ---------------------------------
Robin A. Plumbridge
/s/ Moeen A. Qureshi Director
- ---------------------------------
Moeen A. Qureshi
/s/ Michael K. Reilly Director
- ---------------------------------
Michael K. Reilly
/s/ William I.M. Turner, Jr. Director
- ---------------------------------
William I.M. Turner, Jr.
/s/ Wayne W. Murdy Senior Vice President
- --------------------------------- and Chief Financial Officer
Wayne W. Murdy (Principal Financial Officer)
/s/ Gary E. Farmar Vice President and Controller
- --------------------------------- (Principal Accounting
Gary E. Farmar Officer)
-2-
