<PAGE>
As filed with the Securities and Exchange Commission on April 18, 1995
Registration No. 33-54249
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NEWMONT MINING CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 1700 Lincoln Street 13-1806811
(State or other jurisdic- DENVER, COLORADO (I.R.S. Employer
tion of incorporation 80203 Identification No.)
or organization) (303) 863-7414
(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:
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
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)
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.
<PAGE>
PROSPECTUS
NEWMONT MINING CORPORATION
COMMON STOCK
PREFERRED STOCK
DEPOSITARY SHARES
CONVERTIBLE DEBT SECURITIES
COMMON STOCK WARRANTS
Newmont Mining Corporation (the "Company") may from time to time
offer, together or separately, (i) shares of its common stock, par value $1.60
per share ("Common Stock"), (ii) shares of its preferred stock, par value
$5.00 per share ("Preferred Stock"), which may be represented by depositary
shares (the "Depositary Shares") which will represent a fraction of a share of
Preferred Stock, (iii) convertible debt securities (the "Convertible Debt
Securities") consisting of debentures, notes or other evidences of
indebtedness representing unsecured obligations of the Company, which may be
either senior debt securities (the "Convertible Senior Debt Securities") or
subordinated debt securities (the "Convertible Subordinated Debt Securities"),
and which will be convertible into Common Stock, and (iv) warrants to purchase
Common Stock ("Warrants" and, together with the Common Stock, the Preferred
Stock, the Depositary Shares and the Convertible Debt Securities, the
"Securities"). The Securities offered pursuant to this Prospectus may be
issued in one or more series or issuances, at prices and on terms to be deter-
mined at the time of sale and to be set forth in supplements to this Pros-
pectus. The Securities will be limited to $300,000,000 aggregate public
offering price (or its equivalent (based on the applicable exchange rate at
the time of sale) if Convertible Debt Securities are issued with principal
amounts denominated in one or more foreign currencies or currency units). The
Company may sell Securities to or through underwriters, and also may sell
Securities directly to other purchasers or through agents. See "Plan of
Distribution."
Certain specific terms of the particular Securities in respect of
which this Prospectus is being delivered (the "Offered Securities") are set
forth in the accompanying Prospectus Supplement, including, where applicable:
the specific designation or title; aggregate amount or principal amount; in
the case of Preferred Stock, any dividend, liquidation, voting, conversion and
other rights, terms for sinking or purchase fund payments and terms for
redemption; in the case of Convertible Debt Securities, denominations (which
may be in United States dollars, in any other currency or in a composite
currency), maturity, rate (which may be fixed or variable) and time of payment
of interest, if any, terms for redemption or early repayment at the option of
the Company or the holder, terms for sinking or purchase fund payments and
terms for conversion into Common Stock; in the case of the Warrants,
expiration date and terms of exercise; the initial public offering price; the
names of any underwriters or agents; amount or the principal amounts, if any,
to be purchased by underwriters or agents and the compensation, if any, of
such underwriters or agents; the net proceeds to the Company and the other
terms in connection with the Offered Securities.
The Convertible Senior Debt Securities will rank equally with all
other unsubordinated and unsecured indebtedness of the Company. The
Convertible Subordinated Debt Securities will be subordinated in right of
payment to all Senior Indebtedness of the Company (as defined herein). See
"Description of Convertible Debt Securities -- Subordination of Convertible
Subordinated Debt Securities."
<PAGE>
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.
The date of this Prospectus is April 18, 1995.
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 filed
by the Company with the Commission under the Securities Act of 1933, as
amended (the "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 Securities 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 other-
wise 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, which has been filed with the Commission. All documents filed by the
Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after
the date of this Prospectus and prior to the termination of the offering of
the Securities 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
<PAGE>
CORPORATION, 1700 LINCOLN STREET, DENVER, COLORADO 80203, TELEPHONE: (303)
863-7414. THE COMPANY
Newmont Mining Corporation (the "Company") is a U.S. company whose
sole asset is a controlling equity interest in Newmont Gold Company ("NGC").
NGC is a worldwide company engaged in gold production, exploration for gold
and acquisition of gold properties. The Company owns 89.2% of the common
stock, 100% of the preferred stock and options to purchase additional shares
of the common stock of NGC.
NGC is the Company's sole subsidiary or interest. NGC produces gold
from the Carlin Trend in Nevada. NGC also produces gold through a 38% owned
venture in Peru, which commenced operations in August 1993. NGC additionally
has a 50% owned joint venture in Uzbekistan, which is scheduled to commence
gold production in mid-1995, and an 80% owned joint venture in Indonesia,
which is scheduled to commence gold production in early 1996.
Since the Company's only asset is a controlling equity interest in
NGC, the rights of the Company to participate in any distribution of assets of
NGC upon its liquidation or reorganization or otherwise (and thus the ability
of holders of the Securities to benefit from such distribution) are subject to
the prior claims of creditors of NGC, except to the extent that the Company
may itself be a creditor with recognized claims against NGC. Claims on NGC 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.
The Company, incorporated in 1921, under the laws of Delaware,
maintains its principal executive offices at 1700 Lincoln Street, Denver,
Colorado 80203 (telephone: 303-863-7414).
RATIO OF EARNINGS TO FIXED CHARGES
AND RATIO OF EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The Company's ratio of earnings to fixed charges for each of the
periods indicated below were as follows:
<TABLE>
<CAPTION>
Year Ended December 31,
<C> <C> <C> <C> <C>
1994 1993 1992 1991 1990
1.7 6.3 6.5 10.3 6.6
</TABLE>
The Company's ratio of earnings to combined fixed charges and
preferred stock dividends for each of the periods indicated below were as
follows:
<TABLE>
<CAPTION>
Year Ended December 31,
<C> <C> <C> <C> <C>
1994 1993 1992 1991 1990
1.1 3.4 5.9 10.3 6.6
</TABLE>
<PAGE>
The ratios set forth above were calculated based on information from
the Company's books and records. In computing such ratios, "earnings"
consists of income from continuing operations before provision for income
taxes and extraordinary items with adjustments for interest expense (excluding
capitalized interest), the amortization of previously capitalized interest,
minority interests of subsidiaries with fixed charges and undistributed income
of less than fifty percent owned affiliates. "Fixed charges" consists of
interest expense (including amortization of debt issuance expense),
capitalized interest and one-third of rental expense (which the Company
believes is a reasonable approximation of the interest factor of such rental
expense). Preferred stock dividend requirements are computed by increasing
preferred stock dividends by an amount representing the pre-tax earnings which
would be required to cover such preferred stock dividend requirements. The
Company guarantees certain third party debt which had total interest
obligations of $1.0 million, $0.8 million, $3.3 million, $4.0 million, $4.5
million and $5.0 million for the years ended December 31, 1994, 1993, 1992,
1991 and 1990, respectively. The Company has not been required to pay any of
these amounts, nor does it expect to have to pay any amounts; therefore, such
amounts have not been included in the ratio of earnings to fixed charges and
the ratio of earnings to combined fixed charges and preferred stock dividends.
USE OF PROCEEDS
The net proceeds to the Company from the sale of the Offered
Securities will be used for general corporate purposes unless otherwise set
forth in the Prospectus Supplement.
DESCRIPTION OF CAPITAL STOCK
The authorized capital of the Company consists of 5,000,000 shares
of Preferred Stock, par value $5.00 per share, issuable in series, of which
2,875,000 shares of $5.50 Convertible Preferred Stock, par value $5.00 per
share (the "$5.50 Convertible Preferred Stock") were issued and outstanding as
of April 3, 1995 and 240,000 shares of Series A Junior Participating Preferred
Stock, par value $5.00 per share (the "Junior Preferred Shares") were reserved
for issuance as of April 3, 1995, and 120,000,000 shares of Common Stock, par
value $1.60 per share, of which 86,090,774 were issued and outstanding as of
April 3, 1995 and are fully paid and nonassessable. Holders of the Company's
capital stock have no preemptive rights.
DESCRIPTION OF COMMON STOCK
The statements set forth below are summaries of certain provisions
relating to the Common Stock of the Company. These summaries contain all
material provisions, but do not purport to be complete and are subject to, and
are qualified in their entirety by, the provisions of the Company's Restated
Certificate of Incorporation, a copy of which is filed as an exhibit to the
Registration Statement of which this Prospectus forms a part.
DIVIDEND RIGHTS
Subject to the prior rights as to dividends of any Preferred Stock
which may be outstanding from time to time, the Common Stock is entitled to
such dividends as may be declared by the Board of Directors out of funds
legally available therefor.
VOTING RIGHTS
Subject to the voting rights, if any, of any Preferred Stock which
may be outstanding from time to time, all voting rights are vested in the
holders of shares of the Common Stock, each share being entitled to one vote.
LIQUIDATION RIGHTS
<PAGE>
Subject to the prior rights of creditors and the holders of any
Preferred Stock which may be outstanding from time to time, the shares of
Common Stock are entitled, in the event of voluntary or involuntary
liquidation, dissolution or winding up, to share pro rata in the distribution
of all remaining assets.
APPROVAL OF CERTAIN MERGERS, CONSOLIDATIONS, SALES AND LEASES
Article NINTH of the Company's Restated Certificate of Incorporation
provides that, with certain exceptions noted below, the affirmative vote of
the holders of four-fifths of all classes of stock of the Company entitled to
vote in elections of directors (considered as one class) shall be required (a)
for the adoption of an agreement for the merger or consolidation of the
Company with any other corporation, or (b) to authorize any sale or lease of
all or any substantial part of the assets of the Company to, or any sale or
lease to the Company or any subsidiary thereof in exchange for securities of
the Company of any assets (except assets having an aggregate fair market value
of less than $10 million) of, any other corporation, person or entity if, in
either case, such other corporation, person or entity is the beneficial owner,
directly or indirectly, of more than 10% of all outstanding shares of stock of
the Company entitled to vote in elections of directors (a "10% Holder"). Such
affirmative vote or consent shall be in addition to the vote of the holders of
the stock of the Company otherwise required by law or any agreement between
the Company and any national securities exchange.
For the purposes of Article NINTH, any corporation, person or entity
shall be deemed to be the beneficial owner of any shares of stock of the
Company (i) which it has the right to acquire pursuant to any agreement, or
upon exercise of conversion rights, warrants or options, or otherwise, or (ii)
which are beneficially owned, directly or indirectly by any other corporation,
person or entity, with which it or its affiliates or associates (as defined in
the Restated Certificate of Incorporation) have any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or disposing of
stock of the Company, or which is its affiliate or associate.
Article NINTH does not apply to any transaction with any other
corporation, person or entity (i) if the Board of Directors of the Company has
approved a memorandum of understanding with such other corporation, person or
entity with respect to such transaction prior to the time that such other
corporation, person or entity shall have become a 10% Holder or (ii) in case
of a corporation, if the Company and its subsidiaries own a majority of the
outstanding shares of all classes of stock entitled to vote in elections of
directors. Article NINTH can be altered or repealed only upon the affirmative
vote of the record holders of four-fifths of all classes of stock of the
Company entitled to vote in elections of directors, considered as one class.
Article NINTH might be characterized as an anti-takeover provision
since it may render more difficult certain possible takeover proposals to
acquire control of the Company and make removal of management of the Company
more difficult.
EQUAL VALUE RIGHTS PLAN
Each outstanding share of Common Stock carries with it a dividend
distribution of one equal value right (an "Equal Value Right"). The terms of
the Equal Value Rights are set forth in a Rights Agreement, dated as of
September 23, 1987, as amended (the "Equal Value Rights Agreement"), between
the Company and Chemical Bank, as Rights Agent. The following is a summary of
the Equal Value Rights Agreement. This summary contains all material
provisions, but does not purport to be complete and is subject to, and is
qualified in its entirety by reference to, the provisions of the Equal Value
Rights Agreement. A copy of the Equal Value Rights Agreement and the
amendments thereto are filed as exhibits to the Registration Statement of
which this Prospectus forms a part.
<PAGE>
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 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 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").
<PAGE>
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 sub-
ject to adjustment in the event of stock dividends, subdivisions and com-
binations with respect to the Common Stock. In lieu of issuing certificates
for fractions of Junior Preferred Shares (other than fractions which are
integral multiples of one five-hundredth of a share), the Company may pay cash
in accordance with the Rights Agreement.
If a person becomes an Acquiring Person other than pursuant to
certain Board approved tender or exchange offers, each holder of a Right, at
any time following the Distribution Date, has the right to receive, upon
exercise, Common Stock (or, in certain circumstances, cash, property or other
securities of the Company) having a value equal to two times the Purchase
Price of the Right. In lieu of requiring payment of the Purchase Price upon
exercise of the Right following any such event, the Company may provide that
each Right be exchanged for one share of Common Stock (or cash, property or
other securities, as the case may be). Following the occurrence of the event
set forth in the first sentence of this paragraph, all Rights that are, or
(under certain circumstances specified in the Rights Agreement) were, bene-
ficially 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.
<PAGE>
The Rights have certain anti-takeover effects. The Rights may cause
substantial dilution to a person or group that attempts to acquire the Company
without conditioning the offer on the Rights being redeemed or a substantial
number of Rights being acquired. The Rights should not interfere with any
merger or other business combination approved by the Board of Directors of the
Company because the Rights are either redeemable or do not go into effect
under such circumstances.
DESCRIPTION OF PREFERRED STOCK
The statements set forth below are summaries of certain provisions
relating to the Preferred Stock of the Company. These summaries contain all
material provisions, but do not purport to be complete and are subject to, and
are qualified in their entirety by, the provisions of the Company's Restated
Certificate of Incorporation and the Certificate of Designations for both the
$5.50 Convertible Preferred Stock and the Junior Preferred Shares described
below, copies of which are filed as exhibits to the Registration Statement of
which this Prospectus forms a part. In addition, with respect to any
particular series of Preferred Stock offered hereby (or any series of
Preferred Stock underlying Depositary Shares that are offered hereby), the
summaries set forth below of certain provisions of the Preferred Stock are
subject to, and are qualified in their entirety by, the provisions of the
Certificate of Designations relating to such particular series of Preferred
Stock, which will be filed with the Commission at or prior to the time of the
sale of such series of Preferred Stock.
GENERAL
The Company's Restated Certificate of Incorporation (the
"Certificate of Incorporation") authorizes the issuance of 5,000,000 shares of
Preferred Stock in one or more series. The Board of Directors has the power
to fix various terms with respect to each series of Preferred Stock, including
designations, preferences, relative rights, qualifications, limitations and
restrictions. The $5.50 Convertible Preferred Stock and the Junior Preferred
Shares that may be issued in connection with the Company's Shareholder Rights
Plan (see "Description of Common Stock -- Shareholder Rights Plan" and
"Description of Preferred Stock -- Junior Preferred Shares") are the only
series of Preferred Stock that the Board of Directors of the Company has
authorized for issuance by the Company.
OFFERED SECURITIES
The Preferred Stock offered hereby shall have the dividend,
liquidation, redemption, conversion and voting rights set forth below unless
otherwise provided in the Prospectus Supplement relating to a particular
series of the Preferred Stock. Reference is made to the Prospectus Supplement
relating to the particular series of the Preferred Stock offered thereby for
specific terms, including: (i) the title and stated value per share of such
Preferred Stock and the number of shares offered; (ii) the price at which such
Preferred Stock will be issued; (iii) the dividend rate (or method of cal-
culation), the dates on which dividends shall be payable, whether such
dividends shall be cumulative or noncumulative and, if cumulative, the dates
from which dividends shall commence to cumulate; (iv) any redemption or
sinking fund provisions of such Preferred Stock; (v) whether or not such
Preferred Stock will be convertible into shares of Common Stock of the Company
and, if so, whether such conversion is mandatory or at the option of the
holder or of the Company, the conversion price and other terms relating
thereto; and (vi) any additional dividend, liquidation, redemption, sinking
fund and other rights, preferences, privileges, limitations and restrictions
of such Preferred Stock. The Preferred Stock will, when issued, be fully paid
and nonassessable.
Ranking. Unless otherwise provided in the Prospectus Supplement
relating to a particular series of Preferred Stock, each series of Preferred
Stock offered hereby will rank senior with respect to the payment of dividends
<PAGE>
and the distribution of assets upon liquidation to any Junior Preferred Shares
and any series of Preferred Stock which by its terms is expressly made junior
to the Preferred Stock and will rank on a parity with respect to the payment
of dividends and the distribution of assets upon liquidation with the $5.50
Convertible Preferred Stock and any other outstanding series of Preferred
Stock, other than the Junior Preferred Shares and any series of Preferred
Stock which by its terms is expressly made junior to the Preferred Stock
offered hereby.
Dividend Rights. Out of the funds of the Company legally available
for dividends, the holders of Preferred Stock of each series will be entitled
to receive, when and as declared by the Board of Directors, cash dividends at
such rate, and payable at such times and for such quarterly dividends periods
as set forth in the Prospectus Supplement relating to such series of Preferred
Stock. Dividends on any shares of Preferred Stock may be cumulative only if
and to the extent set forth in the Prospectus Supplement relating thereto.
No such dividend shall be paid or declared and set apart for payment
on any share of Preferred Stock for any quarterly dividend period unless a
dividend for the same quarterly dividend period and all past quarterly
dividend periods, if any, ending within such quarterly dividend period, rat-
ably in proportion to the respective annual dividend rates fixed therefor,
shall be or have been paid or declared and set apart for payment on all shares
of Preferred Stock of all series then outstanding and entitled to receive
dividends for such quarterly dividend period or for any past quarterly
dividend period, if any, ending within such quarterly dividend period. In no
event, so long as any Preferred Stock shall remain outstanding, shall any
dividend, other than a dividend payable in shares of Common Stock or any other
class of stock ranking junior to the Preferred Stock as to the distribution of
assets and the payment of dividends (the Common Stock, and any such other
class of stock being hereinafter sometimes referred to as "junior stock"), be
declared or paid upon, nor shall any distribution be made upon, any junior
stock, nor shall any shares of junior stock be purchased or redeemed by the
Company other than in exchange for junior stock, nor shall any monies be paid
or made available for a sinking fund for the purchase or redemption of any
junior stock, unless in each instance dividends on all outstanding shares of
Preferred Stock for all past dividend periods shall have been paid and the
dividend on all outstanding shares of the Preferred Stock for the then
applicable current quarterly dividend period shall have been paid, or declared
and a sum sufficient for the payment thereof set apart.
Voting Rights. Except as indicated below or in the Prospectus
Supplement relating to a particular series of Preferred Stock, or except as
expressly required by applicable law, the holders of Preferred Stock will not
be entitled to vote. Except as indicated in the Prospectus Supplement
relating to a particular series of Preferred Stock, when and if any such
series is entitled to vote, each share in such series will be entitled to one
vote.
At any time when six quarterly dividends on any one or more series
of Preferred Stock entitled to receive cumulative dividends shall be in
default, the number of directors constituting the Board of Directors shall be
increased by two, and the holders of shares of all such cumulative series of
Preferred Stock at such time shall be entitled, voting as a class, whether or
not the holders thereof shall otherwise be entitled to vote, to the exclusion
of the holders of Common Stock and the holders of any series of non-cumulative
Preferred Stock, to vote for and elect two members of the Board of Directors
of the Company to fill such newly-created directorships. At any time when six
quarterly dividends on any one or more series of non-cumulative Preferred
Stock shall be in default, the number of directors constituting the Board of
Directors shall be increased by two, and the holders of shares of all such
non-cumulative series of Preferred Stock at such time shall be entitled,
voting as a class, whether or not the holders thereof shall otherwise be
entitled to vote, to the exclusion of the holders of Common Stock and the
holders of any series of cumulative Preferred Stock, to vote for and elect two
members of the Board of Directors of the Company to fill such newly-created
<PAGE>
directorships. All rights of all series of Preferred Stock to participate in
the election of directors shall continue in effect, in the case of all series
of Preferred Stock entitled to receive cumulative dividends, until cumulative
dividends have been paid in full or set apart for payment on each cumulative
series which shall have been entitled to vote at the previous annual meeting
of stockholders, or special meeting held in place thereof, or, in the case of
all series of non-cumulative Preferred Stock, until non-cumulative dividends
have been paid in full or set apart for payment for four consecutive quarterly
dividend periods on each non-cumulative series which shall have been entitled
to vote at the previous annual meeting of stockholders, or special meeting
held in place thereof. Whenever the holders of the Preferred Stock shall be
divested of such voting right, the directors so elected by the holders of
Preferred Stock shall thereupon cease to be directors of the Company and
thereupon the number of directors shall be reduced by two or four, as the case
may be. Directors elected by the holders of any one or more series of stock
voting separately as a class, may be removed only by a majority vote of such
series, voting separately as a class, so long as the voting power of such
series shall continue.
Liquidation Rights. In the event of any liquidation, dissolution or
winding up of the affairs of the Company, the holders of Preferred Stock of a
particular series shall be entitled to receive, out of the assets of the
Company available for distribution to its stockholders, an amount in cash set
forth in the Prospectus Supplement relating to such series of Preferred Stock
plus, in each case, an amount equal to all dividends accrued and unpaid on
such share up to the date fixed for distribution. If upon any such
liquidation, dissolution or winding up of the Company its net assets shall be
insufficient to permit the payment in full of the respective amounts to which
the holders of all outstanding Preferred Stock of all series are entitled, the
entire remaining net assets of the Company shall be distributed among the
holders of Preferred Stock of all series in amounts proportionate to the full
amounts to which they are respectively so entitled.
Redemption. The Company, at its option, may redeem the shares of
any series of the Preferred Stock at such time or times, at such price or
prices and on such other terms and conditions as set forth in the Prospectus
Supplement relating to such series of Preferred Stock plus, in each case, an
amount equal to all dividends accrued and unpaid on such series of Preferred
Stock to and including the date fixed for redemption. If less than all
outstanding shares of any series of Preferred Stock are to be redeemed, the
shares to be redeemed shall be chosen by lot or pro rata in such equitable
manner as the Board of Directors may determine. Notice of every such
redemption shall be mailed not less than 30 nor more than 90 days in advance
of the redemption date to the holders of record of the shares of Preferred
Stock so to be redeemed at their respective addresses as the same shall appear
on the books of the Company. From and after the redemption date (unless the
Company shall default in paying or providing the funds necessary for the
payment of the redemption price of the shares so called for redemption) the
right to receive dividends on all shares of Preferred Stock so called for
redemption shall cease to accrue, and all rights of the holders of the shares
of Preferred Stock so called for redemption shall cease and terminate, except
for the right of such holders to receive the redemption price for such shares
but without interest, and such shares shall no longer be deemed outstanding.
$5.50 CONVERTIBLE PREFERRED STOCK
General. As of April 3, 1995, a total of 2,875,000 shares of the
$5.50 Convertible Preferred Stock were issued and outstanding. All of the
outstanding shares of $5.50 Convertible Preferred Stock are held on deposit
under the Deposit Agreement, dated as of November 15, 1992 (the "1992 Deposit
Agreement"), among the Company, Chemical Bank, as Depositary (the "1992
Depositary"), and all holders from time to time of depositary receipts issued
thereunder (the "1992 Depositary Receipts").
<PAGE>
Ranking. The $5.50 Convertible Preferred Stock ranks senior with
respect to the payment of dividends and the distribution of assets upon
liquidation to any Junior Preferred Shares and any series of Preferred Stock
which by its terms is expressly made junior to the $5.50 Convertible Preferred
Stock. The $5.50 Convertible Preferred Stock will rank on a parity with
respect to the payment of dividends and the distribution of assets upon
liquidation with any other series of Preferred Stock Junior Preferred Shares
and any series of Preferred Stock which by its terms is expressly made junior
to the Preferred Stock offered hereby.
Dividend Rights. The holders of shares of the $5.50 Convertible
Preferred Stock are entitled to receive, when, as and if declared by the Board
of Directors of the Company, out of funds of the Company legally available for
payment, cumulative dividends at an annual rate of $5.50 per share, payable
quarterly on each March 15, June 15, September 15 and December 15. Dividends
on the $5.50 Convertible Preferred Stock accrue and are cumulative from the
date of its original issue and are payable to the holder of record on such
respective record dates as may be fixed by the Board of Directors in advance
of the payment of each dividend. After full cumulative dividends on the $5.50
Convertible Preferred Stock for all past and current quarterly dividend
periods have been paid in full, the $5.50 Convertible Preferred Stock is not
entitled to participate with the Common Stock in any further distributions of
the Company.
Unless full cumulative dividends on the $5.50 Convertible Preferred
Stock have been paid, or declared and set aside for payment, no dividends
(other than in Common Stock or any other stock ranking junior to the $5.50
Convertible Preferred Stock as to the distribution of assets and the payment
of dividends) may be paid or declared or other distribution made upon the
Common Stock or on any other stock of the Company ranking junior to the $5.50
Convertible Preferred Stock as to the distribution of assets and the payment
of dividends nor may any Common Stock or any other stock of the Company
ranking junior to the $5.50 Convertible Preferred Stock as to the distribution
of assets and the payment of dividends be redeemed or purchased by the Company
(other than in exchange for Common Stock or any other stock ranking junior to
the $5.50 Convertible Preferred Stock as to the distribution of assets and the
payment of dividends) or any payment made to or available for a sinking fund
for the redemption of any share of such stock.
Voting Rights. Except for the voting rights described below and
except as otherwise provided by law, the holders of shares of $5.50
Convertible Preferred Stock are not entitled to vote on any matter or to
receive notice of, or to participate in, any meeting of stockholders of the
Company. If six quarterly dividends payable on the $5.50 Convertible
Preferred Stock, or on any other Preferred Stock entitled to receive
cumulative dividends, are in default, the number of directors of the Company
will be increased by two and the holders of all outstanding shares of such
cumulative Preferred Stock as to which such default shall exist, voting as a
single class, will be entitled to elect the additional two directors until all
such cumulative dividends have been paid in full or set apart for payment on
each cumulative series then entitled to vote.
Liquidation Rights. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the holders of $5.50
Convertible Preferred Stock will be entitled to receive out of the assets of
the Company available for distribution to stockholders $100.00 per share in
cash plus accrued and unpaid dividends before any distribution is made to the
holders of the Common Stock or any other stock of the Company ranking junior
to the $5.50 Convertible Preferred Stock as to the distribution of assets upon
liquidation, dissolution or winding up of the affairs of the Company.
Conversion Rights. Shares of $5.50 Convertible Preferred Stock will
be convertible at any time at the option of the holder thereof into such
number of whole shares of Common Stock as is equal to the aggregate
liquidation preference of the shares of $5.50 Convertible Preferred Stock
surrendered for conversion divided by the conversion price of $36.395 per
<PAGE>
share of Common Stock, subject to adjustment in certain events as provided in
the Certificate of Designation for the $5.50 Convertible Preferred Stock.
Optional Redemption. The $5.50 Convertible Preferred Stock will not
be redeemable prior to November 15, 1995. Thereafter the $5.50 Convertible
Preferred Stock may be redeemed, in whole or in part, at the option of the
Company, at a redemption price declining from $103.85 per share for
redemptions occurring on or after November 15, 1995 to $100.00 per share for
redemptions occurring on or after November 15, 2001, plus, in each case,
accrued and unpaid dividends to and including the date fixed for redemption.
Effect of Mergers, Consolidations, Sales and Leases. Except as
otherwise provided in the Certificate of Designations for the $5.50
Convertible Preferred Stock in the event of any recapitalization of shares of
Common Stock, any consolidation or merger of the Company with or into another
person or any merger of another person into the Company, any sale or transfer
of all or substantially all of the assets of the Company and its consolidated
subsidiaries, or any compulsory share exchange, pursuant to any of which
holders of Common Stock shall be entitled to receive other securities, cash or
other property, then appropriate provision shall be made so that the holder of
each share of $5.50 Convertible Preferred Stock then outstanding shall have
the right thereafter to convert such share at the conversion price, subject to
adjustment as provided in the Certificate of Designation, into (except, in
certain events, as otherwise provided in the Certificate of Designation) the
kind and amount of securities, cash and other property that would have been
receivable upon such transaction by a holder of the number of shares of Common
Stock issuable upon conversion of such share of $5.50 Convertible Preferred
Stock immediately prior to such transaction.
1992 Depositary Shares. The following is a summary of the 1992
Depositary Agreement. The summary contains all material provisions, but does
not purport to be complete and is subject to, and is qualified in its entirety
by, the provisions of the 1992 Deposit Agreement, a copy of which is filed as
an exhibit to the Registration Statement of which this Prospectus forms a
part.
Pursuant to the 1992 Deposit Agreement, depositary shares (the "1992
Depositary Shares"), each evidencing one-half share of $5.50 Convertible
Preferred Stock, were issued. As of March 24, 1994, a total of 5,750,000 1992
Depositary Shares were outstanding. Subject to the terms of the 1992 Deposit
Agreement, each owner of a 1992 Depositary Share is entitled, in proportion to
the applicable fraction of a share of $5.50 Convertible Preferred Stock
represented by such 1992 Depositary Share, to all the rights, preferences and
privileges of the $5.50 Convertible Preferred Stock represented thereby
(including dividend, voting, conversion, redemption and liquidation rights),
and subject to all of the limitations of the $5.50 Convertible Preferred Stock
represented thereby, contained in the Company's Restated Certificate of
Incorporation and the Certificate of Designation for the $5.50 Convertible
Preferred Stock and summarized above.
The 1992 Depositary acts as transfer agent and registrar and paying
agent for the payment of dividends with respect to the 1992 Depositary Shares.
Whenever the Company redeems shares of $5.50 Convertible Preferred
Stock held by the 1992 Depositary, the 1992 Depositary will redeem as of the
same redemption date the number of 1992 Depositary Shares representing shares
of the $5.50 Convertible Preferred Stock so redeemed, provided the Company
shall have delivered to the 1992 Depositary cash sufficient to effect a
redemption of the $5.50 Convertible Preferred Stock to be redeemed. Each 1992
Depositary Share will be redeemable for one-half of the amount payable with
respect to each share of $5.50 Convertible Preferred Stock.
The 1992 Depositary will distribute all cash dividends or other cash
distributions received in respect of the $5.50 Convertible Preferred Stock to
the record holders of 1992 Depositary Receipts in proportion to the number of
such 1992 Depositary Shares owned by such holders on the relevant record date.
<PAGE>
In the event of an offering to holders of $5.50 Convertible Preferred Stock of
rights, preferences or privileges to subscribe for any securities or any other
rights, preferences or privileges, the 1992 Depositary will make such rights,
preferences or privileges available to the record holders of 1992 Depositary
Receipts entitled thereto, unless the Company determines that it is not lawful
or feasible to make such rights, preferences or privileges available to some
or all holders of 1992 Depositary Receipts. The amount distributed in any of
the foregoing cases will be reduced by any amount required to be withheld by
the Company or the 1992 Depositary with respect to tax liability.
Each record holder of 1992 Depositary Shares has the right, at his
option, to surrender 1992 Depositary Receipts representing one or more whole
shares of $5.50 Convertible Preferred Stock with written instructions to the
1992 Depositary to convert a number of underlying whole shares of $5.50
Convertible Preferred Stock which such 1992 Depositary Shares represent into
shares of the Company's Common Stock at any time. No fractional shares of
Common Stock will be issued upon conversion, and in lieu thereof an amount
will be paid in cash by the Company equal to the market value of the
fractional interest.
Upon receipt of notice of any meeting at which holders of $5.50
Convertible Preferred Stock are entitled to vote, the 1992 Depositary will
mail the information contained in such notice of meeting to the record holders
of 1992 Depositary Receipts. Each record holder of 1992 Depositary Receipts
on the record date (which will be the same date as the record date for the
$5.50 Convertible Preferred Stock) will be entitled to instruct the 1992
Depositary as to the exercise of the voting right pertaining to the number of
shares of $5.50 Convertible Preferred Stock (or fraction thereof) represented
by such holder's 1992 Depositary Shares. The 1992 Depositary will endeavor,
insofar as practicable, to vote the number of shares of $5.50 Convertible
Preferred Stock (or fraction thereof) represented by such 1992 Depositary
Shares in accordance with such instructions, and the Company has agreed to
take all reasonable action which may be deemed necessary by the 1992
Depositary in order to enable the 1992 Depositary to do so. The 1992
Depositary will not vote the shares of $5.50 Convertible Preferred Stock to
the extent it does not receive specific written instructions from the holders
of 1992 Depositary Receipts representing such shares of $5.50 Convertible
Preferred Stock.
The form of 1992 Depositary Receipts and any provision of the 1992
Deposit Agreement may at any time be amended by agreement between the Company
and the 1992 Depositary. However, any amendment which materially and
adversely alters the rights of holders of 1992 Depositary Receipts will not
take effect unless such amendment has been approved by the holders of at least
a majority of the 1992 Depositary Shares then outstanding.
The 1992 Deposit Agreement may be terminated by the Company or the
1992 Depositary only after (i) all outstanding 1992 Depositary Shares have
been redeemed and all shares of Common Stock, cash and other property shall
have been distributed to holders of 1992 Depositary Shares; (ii) there has
been a final distribution in respect of the $5.50 Convertible Preferred Stock
in connection with any voluntary or involuntary liquidation, dissolution or
winding-up of the Company and such distribution has been distributed to the
holders of the 1992 Depositary Shares; or (iii) each share of $5.50
Convertible Preferred Stock has been converted into shares of Common Stock and
all shares of Common Stock, cash and other property have been distributed to
holders of 1992 Depositary Shares.
JUNIOR PREFERRED SHARES
General. A total of 240,000 shares of Junior Preferred Shares have
been reserved for issuance upon exercise of the Rights. See "Description of
Common Stock -- Stockholder Rights Plan."
Dividend Rights. Each Junior Preferred Share has a preferential
quarterly dividend payable on the first day of January, April, July and
<PAGE>
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.
DESCRIPTION OF DEPOSITARY SHARES
GENERAL
The Company may, at its option, elect to offer fractional interests
in shares of the Preferred Stock by means of the issuance of Depositary
Shares. The shares of any series of Preferred Stock underlying the Depositary
Shares will be deposited under a separate Deposit Agreement (the "Deposit
Agreement") between the Company and a bank or trust company selected by the
Company (the "Depositary"). The Prospectus Supplement relating to a series of
Depositary Shares will set forth the name and address of the Depositary. The
following statements are a summary of the provisions of the Deposit Agreement
and the depositary receipts (the "Depositary Receipts") which evidence the
Depositary Shares. The form of Deposit Agreement and form of Depositary
Receipts are filed as exhibits to the Registration Statement of which this
Prospectus forms a part. This summary contains all material provisions, but
does not purport to be complete and is subject to, and is qualified in its
entirety by, the provisions of the Deposit Agreement and the Depositary
Receipts.
Subject to the terms of the Deposit Agreement, each owner of a
Depositary Share will be entitled proportionately to all the rights,
preferences and privileges of the Preferred Stock underlying such Depositary
Share (including dividend, voting, conversion, redemption and liquidation
rights), and subject to all of the limitations of the underlying Preferred
Stock, contained in the Company's Restated Certificate of Incorporation and
the Certificate of Designation for such Preferred Stock.
<PAGE>
The Depositary Shares will be evidenced by Depositary Receipts
issued pursuant to the Deposit Agreement, each of which will represent the
fractional interest in a share of a particular series of the Preferred Stock
described in the Prospectus Supplement. (Section 2.01)
DIVIDENDS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record holders
of Depositary Receipts relating to such Preferred Stock in proportion to the
numbers of such Depositary Shares owned by such holders on the relevant record
date. The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction
of one cent, and any balance not so distributed shall be added to and treated
as part of the next sum received by the Depositary for distribution to holders
of Depositary Shares. (Section 4.01)
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Stock underlying the Depositary Shares
is subject to redemption, the Depositary Shares will be redeemed from the
proceeds received by the Depositary resulting from the redemption, in whole or
in part, of such series of the Preferred Stock held by the Depositary. The
redemption price per Depositary Share will be equal to the applicable fraction
of the redemption price per share payable with respect to such series of the
Preferred Stock. If less than all the Depositary Shares are to be redeemed,
the Depositary Shares to be redeemed will be selected by lot by the Board of
Directors. (Section 2.04)
VOTING
Upon receipt of notice of any meeting at which the holders of the
Preferred Stock are entitled to vote, the Depositary will mail the information
contained in such notice of meeting to the record holders of the Depositary
Receipts evidencing Depositary Shares relating to such Preferred Stock. Each
record holder of such Depositary Receipts on the record date (which will be
the same date as the record date for the Preferred Stock) will be entitled to
instruct the Depositary as to the exercise of the voting rights pertaining to
the number of shares of Preferred Stock (or fraction thereof) represented by
the Depositary Shares evidenced by such Depositary Receipts. The Depositary
will endeavor, insofar as practicable, to vote the number of shares of
Preferred Stock (or fraction thereof) represented by such Depositary Shares in
accordance with such instructions, and the Company will agree to take all
action which may be deemed necessary by the Depositary in order to enable the
Depositary to do so. The Depositary will not vote the Preferred Stock to the
extent that it does not receive specific instructions from the holders of the
Depositary Receipts evidencing Depositary Shares representing such Preferred
Stock. (Section 4.05)
WITHDRAWAL OF PREFERRED STOCK; CONVERSION RIGHTS
Unless otherwise provided in the Prospectus Supplement relating to a
series of Depositary Shares, the owner of the Depositary Shares evidenced
thereby will not be entitled to delivery of any Preferred Stock represented by
such Depositary Shares.
If the shares of Preferred Stock underlying a series of Depositary
Shares are convertible into Common Stock as provided in the Prospectus
Supplement relating to such Depositary Shares, each record holder of
Depositary Shares has the right, at his option, to surrender Depositary
Receipts representing one or more whole shares of such Preferred Stock with
written instructions to the Depositary to convert a number of underlying whole
shares of Preferred Stock which such Depositary Shares represent into shares
of the Company's Common Stock at any time. No fractional shares of Common
Stock will be issued upon conversion, and in lieu thereof an amount will be
<PAGE>
paid in cash by the Company equal to the market value of the fractional
interest. (Section 2.05)
AMENDMENT OF FORM OF DEPOSITARY RECEIPTS AND OF DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and
any provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Depositary; provided, however, that any amendment
which materially and adversely alters the rights of the existing holders of
Depositary Shares will not be effective unless such amendment has been
approved by holders of at least a majority of the Depositary Shares then
outstanding. (Section 6.01)
CHARGES OF DEPOSITARY
The Company will pay all fees, charges and expenses of the
Depositary, except for taxes (including transfer taxes, if any), governmental
charges and such other charges as are expressly provided in the Deposit
Agreement. Holders of Depositary Shares will pay all other transfer and other
taxes and governmental charges, and, in addition, such other charges as are
expressly provided in the Deposit Agreement to be for their accounts.
(Section 5.07)
MISCELLANEOUS
The Company, or at the option of the Company, the Depositary, will
forward to the holders of Depositary Shares all reports and communications
from the Company which the Company may be required to furnish to the holders
of the underlying Preferred Stock. (Section 5.05)
Neither the Depositary nor the Company will be liable if it is
prevented or delayed by law or any circumstance beyond its control in
performing its obligations under the Deposit Agreement. (Section 5.02) The
obligations of the Company and the Depositary under the Deposit Agreement will
be limited to performance in good faith of their duties thereunder and they
will not be obligated to prosecute or defend any legal proceeding in respect
of any Depositary Shares or Preferred Stock unless satisfactory indemnity is
furnished. They may rely upon written advice of counsel or accountants, or
information provided by persons presenting Preferred Stock for deposit,
holders of Depositary Shares or other persons believed to be competent and on
documents believed to be genuine. (Section 5.03)
RESIGNATION AND REMOVAL OF DEPOSITARY; TERMINATION OF THE DEPOSIT AGREEMENT
The Depositary may resign at any time by delivering to the Company
notice of its election to do so, and the Company may at any time remove the
Depositary, any such resignation or removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment.
Such successor Depositary will be appointed by the Company within 60 days
after delivery of the notice of resignation or removal. The Deposit Agreement
may be terminated at the direction of the Company or by the Depositary only
after (i) all outstanding Depositary Shares have been redeemed or (ii) there
shall have been made a final distribution with respect to the Preferred Stock
underlying such Depositary Shares in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distributed to the record holders of the Depositary Receipts, or otherwise
provided for. Upon termination of the Deposit Agreement, the Depositary will
discontinue the transfer of Depositary Receipts, will suspend the distribution
of dividends to the holders thereof, and will not give any further notices
(other than notice of such termination) or perform any further acts under the
Deposit Agreement. Upon request of the Company, the Depositary shall deliver
all books, records, certificates evidencing Preferred Stock, Depositary
Receipts and other documents respecting the subject matter of the Deposit
Agreement to the Company. (Sections 5.04 and 6.02)
<PAGE>
DESCRIPTION OF CONVERTIBLE DEBT SECURITIES
GENERAL
The Convertible Senior Debt Securities offered hereby will be
issuable in one or more series under an Indenture, (the "Senior Debt
Indenture"), between the Company and The Bank of New York, as Trustee. The
Convertible Subordinated Debt Securities offered hereby will be issuable in
one or more series under an Indenture (the "Subordinated Debt Indenture"),
between the Company and The Bank of New York, as Trustee. References to the
"Trustee" shall mean The Bank of New York as trustee under the Senior Debt
Indenture and/or the Subordinated Debt Indenture, as applicable. The Senior
Debt Indenture and the Subordinated Debt Indenture are each sometimes referred
to herein individually as the "Indenture" and are referred to herein
collectively as the "Indentures." The following statements are a summary of
certain provisions of the Trust Indenture Act of 1939, as amended (the "TIA"),
and the Indentures, the forms of which are filed as exhibits to the
Registration Statement of which this Prospectus forms a part. This summary
contains all material provisions, but does not purport to be complete and is
subject to, and is qualified in its entirety by, the provisions of the TIA and
the Indentures. Wherever references are made to particular provisions of the
Indentures or terms defined in the Indentures are referred to, such provisions
or definitions are incorporated by reference as part of the statements made,
and such statements are qualified in their entirety by such references.
The aggregate principal amount of Convertible Debt Securities which
can be issued under the Indentures is unlimited. Except as otherwise provided
in the Prospectus Supplement relating to a particular series of Convertible
Debt Securities, neither of the Indentures limit the amount of other debt,
secured or unsecured, which may be issued by the Company. The Convertible
Debt Securities may be issued in one or more series, as may be authorized from
time to time by the Company. (Section 2.4)
Reference is made to the Prospectus Supplement relating to the
particular series of Convertible Debt Securities offered hereby (the "Offered
Convertible Debt Securities") for the following terms, where applicable, of
the Offered Convertible Debt Securities: (1) the designation (including
whether the Offered Convertible Debt Securities are Convertible Senior Debt
Securities or Convertible Subordinated Debt Securities), the aggregate
principal amount and the authorized denominations of the Offered Convertible
Debt Securities; (2) the percentage of principal amount at which the Offered
Convertible Debt Securities will be issued; (3) the currency or currencies in
which the principal of and interest, if any, on the Offered Convertible Debt
Securities will be payable; (4) the date or dates on which the Offered
Convertible Debt Securities will mature; (5) the rate or rates at which the
Offered Convertible Debt Securities will bear interest, if any, or the method
by which such rate or rates will be determined; (6) the dates on which and
places at which such interest, if any, will be payable; (7) the terms of any
mandatory or optional repayment or redemption (including any sinking fund);
(8) the terms and conditions upon which conversion will be effected, including
the conversion price and the conversion period; (9) any index used to deter-
mine the amount of payments of principal of and/or interest, if any, on such
Offered Convertible Debt Securities; (10) the payment of any additional
amounts with respect to the Offered Convertible Debt Securities; (11) whether
any Offered Convertible Debt Securities will be issued as discounted Debt
Securities; and (12) any other terms of the Offered Convertible Debt
Securities. Each of the Indentures provides that Convertible Debt Securities
of a single series may be issued at various times, with different maturity
dates and redemption and repayment provisions, if any, and may bear interest
at different rates. (Section 2.4) Interest, if any, on the Offered
Convertible Debt Securities is to be payable to the persons, and in the
manner, specified in the Prospectus Supplement relating to such Offered
Convertible Debt Securities. Unless otherwise specified in the applicable
Prospectus Supplement, the Convertible Debt Securities will not be listed on
any securities exchange.
<PAGE>
The Convertible Senior Debt Securities will be unsecured, unsub-
ordinated indebtedness of the Company and will rank on a parity with all other
unsecured and unsubordinated indebtedness of the Company. The Convertible
Subordinated Debt Securities will be unsecured indebtedness of the Company
and, as set forth below under "Subordination of Convertible Subordinated Debt
Securities," will be subordinated in right of payment to all Senior
Indebtedness. As of March 31, 1994, Senior Indebtedness of the Company on a
consolidated basis aggregated approximately $278 million.
Some of the Convertible Debt Securities may be issued as discounted
Convertible Debt Securities (bearing no interest or interest at a rate which
at the time of issuance is below market rates) to be sold at a substantial
discount below their stated principal amount. Federal income tax consequences
and other special considerations applicable to any such discounted Convertible
Debt Securities will be described in the Prospectus Supplement relating
thereto.
The Prospectus Supplement for a particular series may indicate terms
for redemption at the option of a holder. Unless otherwise indicated in the
Prospectus Supplement, the covenants contained in each of the Indentures and
the Convertible Debt Securities would not provide for redemption at the option
of a holder nor necessarily afford holders protection in the event of a highly
leveraged or other transaction that may adversely affect holders.
CONVERSION RIGHTS
Convertible Debt Securities of any series will be convertible into
Common Stock. The terms of such conversion will be set forth in the
Prospectus Supplement relating thereto. Such terms shall include the initial
conversion rate (subject to adjustment in certain events as provided in each
of the Indentures), whether conversion is mandatory, at the option of the
holder or at the option of the Company.
GLOBAL NOTES, DELIVERY AND FORM
If so provided in the Prospectus Supplement accompanying this
Prospectus, the Convertible Debt Securities may be issued in the form of one
or more fully registered Global Notes that will be deposited with, or on
behalf of, The Depository Trust Company, New York, New York (the "Depository")
(or such other depository as may be specified in such Prospectus Supplement)
and registered in the name of the Depository's nominee. The Depository
currently limits the maximum denomination of any single Global Note to
$150,000,000. Unless otherwise provided in the Prospectus Supplement, "Global
Note" refers to the Global Note or Global Notes representing an entire issue
of Convertible Debt Securities. The information in this section concerning
the Depository and its book-entry system has been obtained from the
Depository. The Company takes no responsibility for the accuracy thereof.
Except as set forth below, a Global Note may be transferred in whole
and not in part, only to another nominee of the Depository or to a successor
of the Depository or its nominee.
The Depository has advised that: it is a limited-purpose trust
company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the Federal
Reserve System, a "clearing corporation" within the meaning of the New York
Uniform Commercial Code and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act. The Depository holds
securities for its participating organizations (collectively, the
"Participants") and facilitates the clearance and settlement of transactions
in such securities between Participants through electronic book-entry changes
in accounts of its Participants, thereby eliminating the need for physical
movement of securities certificates. Participants include securities brokers
and dealers, banks and trust companies, clearing corporations and certain
other organizations. Access to the Depository's system is also available to
other such banks, brokers, dealers and trust companies that clear through or
<PAGE>
maintain a custodial relationship with a Participant, either directly or
indirectly (collectively, "indirect participants"). Persons who are not
Participants may beneficially own securities held by or on behalf of the
Depository only through Participants or indirect participants. The Rules
applicable to the Depository and its Participants are on file with the
Commission.
The Depository also has advised that pursuant to procedures
established by it (i) upon delivery to the Depositary of a Global Note, the
Depository will credit the accounts of Participants designated by the
Underwriter or Underwriters, if any, with the principal amount of the
Convertible Debt Securities purchased by such Underwriter or Underwriters, and
(ii) ownership of beneficial interests in a Global Note will be shown on, and
the transfer of the ownership thereof will be effected only through, records
maintained by the Depository (with respect to Participants), the Participants
(with respect to indirect participants and certain beneficial owners) and the
indirect participants (with respect to all other beneficial owners). The laws
of some states require that certain persons take physical delivery in
definitive form of securities which they own. Consequently, the ability to
transfer beneficial interests in a Global Note is limited to such extent.
So long as a nominee of the Depository is the registered owner of a
Global Note, such nominee for all purposes will be considered the sole owner
or holder of such Convertible Debt Securities under the respective Indenture.
Except as provided below, owners of beneficial interests in a Global Note will
not be entitled to have Convertible Debt Securities registered in their names,
will not receive or be entitled to receive physical delivery of Convertible
Debt Securities in definitive form, and will not be considered the owners or
holders thereof under such Indenture for any purpose, including with respect
to the giving of any directions, instructions or approval to the Trustee
thereunder. However, the Depository has advised that pursuant to its
customary practice with respect to the giving of consents and votes, it will
deliver an omnibus proxy to the Trustee assigning the related holder's voting
rights to the Participant to whose account the Convertible Debt Securities are
credited on the record date, attached to which proxy will be a list of
Participants' positions in the relevant security as of the record date for a
consent or vote.
Neither the Company, the Trustee, any paying agent nor any registrar
of the Convertible Debt Securities will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests in a Global Note, or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Principal and interest payments on the Convertible Debt Securities
registered in the name of the Depository's nominee will be made in immediately
available funds to the Depository's nominee as the registered owner of the
Global Note. Under the terms of each of the Indentures, the Company and the
Trustee will treat the persons in whose names the Convertible Debt Securities
are registered as the owners of such Convertible Debt Securities for the
purpose of receiving payment of principal and interest on such Convertible
Debt Securities and for all other purposes whatsoever. Therefore, neither the
Company, the Trustee nor any payment agent has or will have any responsibility
or liability for the payment of principal or interest on the Convertible Debt
Securities to owners of beneficial interests in a Global Note or for any other
matter with respect to such owners.
The Depository has advised the Company and the Trustee that its
current practice is, upon receipt of any payment of principal or interest, to
immediately credit the accounts of the Participants with such payment in
amounts proportionate to their respective holdings in principal amount of
beneficial interests in a Global Note as shown in the records of the
Depository unless the Depository has reason to believe that it will not
receive payment on payable date. The Depository's current practice is to
credit such accounts, as to interest, in next-day funds and, as to principal,
<PAGE>
in same-day funds. Payments by Participants and indirect participants to
owners of beneficial interests in a Global Note will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in "street name,"
and will be the responsibility of the Participants or indirect participants
and not of the Depository, the Company or the Underwriter or Underwriters, if
any, subject to any statutory or regulatory requirement as may be in effect
from time to time.
Although the Depository has agreed to the foregoing procedures in
order to facilitate transfers of beneficial interest in a Global Note between
participants, it is under no obligation to perform or continue to perform such
procedures and such procedures may be discontinued at any time. If one or
more Global Notes are outstanding and if the Depository is at any time
unwilling or unable to continue as depository and a successor depository is
not appointed by the Company within 90 days, the Company will issue
Convertible Debt Securities in definitive form in exchange for a Global Note.
In addition, the Company may at any time determine not to have the Convertible
Debt Securities represented by a Global Note and, in such event, will issue
Convertible Debt Securities in definitive form in exchange for a Global Note.
In either instance, an owner of a beneficial interest in a Global Note will be
entitled to have Convertible Debt Securities equal in principal amount to such
beneficial interest registered in its name and will be entitled to physical
delivery of such Convertible Debt Securities in definitive form. Convertible
Debt Securities so issued in definitive form will be issued in denominations
of $1,000 and integral multiples thereof, in registered form only, without
coupons, and the Company will maintain in the Borough of Manhattan, the City
of New York, one or more offices or agencies where such Notes may be presented
for payment and may be transferred or exchanged. No service charge will be
made for any transfer or exchange of such Global Notes, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge or payment in connection therewith.
SAME-DAY SETTLEMENT IN RESPECT OF GLOBAL NOTES
Secondary trading in definitive long-term notes and debentures of
corporate issuers is generally settled in clearing-house or next-day funds.
In contrast, Global Notes held by the Depository will trade in the
Depository's Same-Day Funds Settlement System until maturity, and secondary
market trading activity in such Notes will therefore be required by the
Depository to settle in immediately available funds. No assurance can be
given as to the effect, if any, of settlement in immediately available funds
on trading activity in such Notes.
CERTAIN COVENANTS
Certain Definitions Applicable to Covenants. "Attributable Debt"
shall mean, as to any particular lease under which the Company is at the time
liable, at any date as of which the amount thereof is to be determined, the
total net amount of rent required to be paid by the Company under such lease
during the remaining term thereof, discounted from the respective due dates
thereof to such date at the rate of interest per annum implicit in the terms
of such lease (as determined by any two of the following: the chairman, the
vice chairman, the president, any vice president, the treasurer, the
controller or the secretary of the Company) compounded semiannually. The net
amount of rent required to be paid under any such lease for any such period
shall be the amount of the rent payable by the lessee with respect to such
period, after excluding amounts required to be paid on account of maintenance
and repairs, insurance, taxes, assessments, water rates and similar charges.
In the case of any lease which is terminable by the lessee upon the payment of
a penalty, such net amount shall also include the amount of such penalty, but
no rent shall be considered as required to be paid under such lease subsequent
to the first date upon which it may be so terminated.
"Consolidated Net Tangible Assets" shall mean the aggregate amount
of assets (less applicable reserves and other properly deductible items) after
<PAGE>
deducting therefrom (i) all current liabilities (excluding any thereof which
are by their terms extendible or renewable at the option of the obligor
thereon to a time more than 12 months after the time as of which the amount
thereof is being computed and excluding current maturities of long-term
indebtedness and capital lease obligations) and (ii) all goodwill, all as
shown in the most recent consolidated balance sheet of the Company and its
Subsidiaries computed in accordance with generally accepted accounting
principles.
"Funded Debt" shall mean all indebtedness for money borrowed having
a maturity of more than 12 months from the date as of which the amount thereof
is to be determined or having a maturity of less than 12 months but by its
terms being renewable or extendible beyond 12 months from such date at the
option of the borrower.
"Principal Property" shall mean any mine, together with any fixtures
comprising a part thereof, and any plant or other facility, together with any
land upon which such plant or other facility is erected and fixtures
comprising a part thereof, used primarily for mining or processing, in each
case located in the United States of America and the net book value of which
on the date as of which the determination is being made exceeds 5% of
Consolidated Net Tangible Assets; provided, however, that Principal Property
shall not include (i) any mine, plant or facility which, in the opinion of the
Board of Directors of the Company, is not of material importance to the total
business conducted by the Company and its Subsidiaries as an entirety or (ii)
any portion of a particular mine, plant or facility which, in the opinion of
the Company, is not of material importance to the use or operation of such
mine, plant or facility.
"Restricted Subsidiary" shall mean any Subsidiary (i) substantially
all of the property of which is located, or substantially all of the business
of which is carried on, within the United States of America and (ii) which
owns a Principal Property; provided, however, that Restricted Subsidiary shall
not include any Subsidiary the primary business of which consists of financing
operations in connection with leasing and conditional sales transactions on
behalf of the Company and its Subsidiaries, and/or purchasing accounts
receivable and/or making loans secured by accounts receivable or inventory, or
which is otherwise primarily engaged in the business of a finance company.
"Subsidiary" shall mean any corporation of which at least a majority
of the outstanding stock having by the terms thereof ordinary voting power for
the election of directors of such corporation (irrespective of whether or not
at the time stock of any other class or classes of such corporation shall have
or might have voting power by reason of the happening of any contingency) is
at the time directly or indirectly owned by the Company, or by one or more
other Subsidiaries, or by the Company and one or more other Subsidiaries.
(Section 1.1)
Limitation on Liens. For the benefit of each series of Convertible
Debt Securities issued under each of the Indentures, other than any series of
Convertible Subordinated Debt Securities issued under the Subordinated Debt
Indenture with respect to which series it is explicitly provided otherwise in
the Prospectus Supplement relating to such series ("Excluded Series"), the
Company will not, nor will it permit any Restricted Subsidiary to, incur,
issue, assume or guarantee any indebtedness for money borrowed or any other
indebtedness evidenced by notes, bonds, debentures or other similar evidences
of indebtedness for money borrowed (hereinafter called "Debt") if such Debt is
secured by pledge of, or mortgage, deed of trust or other lien on any
Principal Property owned by the Company or any Restricted Subsidiary, or any
shares of stock or Debt of any Restricted Subsidiary (such pledges, mortgages,
deeds of trust and other liens being hereinafter called "Mortgage" or
"Mortgages"), without effectively providing that the Convertible Debt
Securities of all series (together with, if the Company shall so determine,
any other Debt of the Company or such Restricted Subsidiary then existing or
thereafter created which is not subordinate to the Convertible Debt Secur-
ities) shall be secured equally and ratably with (or prior to) such secured
<PAGE>
Debt, so long as such secured Debt shall be so secured, unless, after giving
effect thereto, the aggregate principal amount of all such secured Debt which
would otherwise be prohibited, plus all Attributable Debt of the Company and
its Restricted Subsidiaries in respect of sale and leaseback transactions (as
defined below) which would otherwise be prohibited by the covenant limiting
sale and leaseback transactions described below would not exceed the sum of
10% of Consolidated Net Tangible Assets; provided, however, that these
restrictions shall not apply to, and there shall be excluded from secured Debt
in any computation under these restrictions, Debt secured by: (i) Mortgages
on property of, or on any shares of stock or Debt of, any corporation existing
at the time such corporation becomes a Restricted Subsidiary; (ii) Mortgages
to secure indebtedness of any Restricted Subsidiary to the Company or to
another Restricted Subsidiary; (iii) Mortgages for taxes, assessments or
governmental charges or levies in each case (a) not then due and delinquent or
(b) the validity of which is being contested in good faith by appropriate
proceedings, and materialmen's, mechanics', carriers', workmen's, repairman's,
landlord's or other like Mortgages, or deposits to obtain the release of such
Mortgages; (iv) Mortgages arising under an order of attachment or distraint or
similar legal process so long as the execution or enforcement thereof is
effectively stayed and the claims secured thereby are being contested in good
faith; (v) Mortgages to secure public or statutory obligations or to secure
payment of workmen's compensation or to secure performance in connection with
tenders, leases of real property, bids or contracts or to secure (or in lieu
of) surety or appeal bonds and Mortgages made in the ordinary course of
business for similar purposes; (vi) Mortgages in favor of the United States of
America or any State thereof, or any department, agency or instrumentality or
political subdivision of the United States of America or any State thereof, or
in favor of any other country, or any political subdivision thereof, to secure
partial, progress, advance or other payments pursuant to any contract or
statute (including Debt of the Pollution Control or Industrial Revenue Bond
type) or to secure any indebtedness incurred for the purpose of financing all
or any part of the purchase price or the cost of construction of the property
subject to such Mortgages; (vii) Mortgages on property (including any lease
which should be capitalized on the lessee's balance sheet in accordance with
generally accepted accounting principles), shares of stock or Debt existing at
the time of acquisition of such property by the Company or the Restricted
Subsidiary (including acquisition through merger or consolidation or through
purchase, transfer of the properties of a corporation as an entirety or
substantially as an entirety) or to secure the payment of all or any part of
the purchase price or construction cost or improvement cost thereof or to
secure any Debt incurred prior to, at the time of, or within one year after,
the acquisition of such property or shares or Debt or the completion of any
such construction (including any improvements on an existing property) or the
commencement of commercial operation of such property, whichever is later, for
the purpose of financing all or any part of the purchase price or construction
cost thereof; (viii) Mortgages existing at the date of such Indenture; and
(ix) any extension, renewal or replacement (or successive extensions, renewals
or replacements), as a whole or in part, of any Mortgage referred to in the
foregoing clauses (i) to (viii), inclusive; provided, however, that (a) such
extension, renewal or replacement Mortgage shall be limited to all or a part
of the same property, shares of stock or Debt that secured the Mortgage
extended, renewed or replaced (plus improvements on such property) and (b) the
Debt secured by such Mortgage at such time is not increased; and provided
further, that these restrictions shall not apply to (i) any gold-based loan or
forward sale arrangement and (ii) Mortgages on property owned or leased by the
Company or any Restricted Subsidiary or in which the Company or any Restricted
Subsidiary owns an interest to secure the Company's or a Restricted
Subsidiary's proportionate share of any payments required to be made to any
Person incurring the expense of developing, exploring, or conducting
operations for the recovery, processing or sale of the mineral resources of
such owned or leased property, and any such loan, arrangement or payment
referred to in clauses (i) and (ii) of this proviso shall not be deemed to
constitute secured Debt and, shall not be included in any computation under
these restrictions. (Section 3.4)
<PAGE>
Limitation on Sales and Leasebacks. For the benefit of each series
of Convertible Debt Securities issued under each of the Indentures other than
any Excluded Series issued under the Subordinated Debt Indenture, the Company
will not, nor will it permit any Restricted Subsidiary to, enter into any
arrangement with any bank, insurance company or other lender or investor (not
including the Company or any Restricted Subsidiary), or to which any such
lender or investor is party, providing for the leasing by the Company or any
such Restricted Subsidiary for a period, including renewals, in excess of
three years, of any Principal Property owned by the Company or such Restricted
Subsidiary which has been or is to be sold or transferred more than 270 days
after the acquisition thereof or after the completion of construction and
commencement of full operation thereof, by the Company or any such Restricted
Subsidiary to such lender or investor or to any person to whom funds have been
or are to be advanced by such lender or investor on the security of such
Principal Property (herein referred to as a "sale and leaseback transaction")
unless either: (i) the Company or such Restricted Subsidiary could create
Debt secured by a Mortgage on the Principal Property to be leased back in an
amount equal to the Attributable Debt with respect to such sale and leaseback
transaction without equally and ratably securing the Convertible Debt
Securities of all series pursuant to the provisions of the covenant on limita-
tion on liens described above (which provisions include the exceptions set
forth in clauses (i) through (ix) of such covenant) or (ii) the Company,
within 180 days after the sale or transfer shall have been made by the Company
or by any such Restricted Subsidiary, applies an amount equal to the greater
of (a) the net proceeds of the sale of the Principal Property sold and leased
back pursuant to such arrangement or (b) the fair market value of the
Principal Property so sold and leased back at the time of entering into such
arrangement (as determined by any two of the following: the chairman, the
vice chairman, the president, any vice president, the treasurer, the
controller or the secretary of the Company) to (x) the purchase of property,
facilities or equipment (other than the property, facilities or equipment
involved in such sale) having a value at least equal to the net proceeds of
such sale or (y) the retirement of Funded Debt of the Company or any
Restricted Subsidiary; provided, however, that the amount required to be
applied to the retirement of Funded Debt of the Company shall be reduced by
(a) the principal amount of any Convertible Debt Securities of any series (or,
if the Convertible Debt Securities of any series are original issue discount
Convertible Debt Securities, such portion of the principal amount as may be
due and payable with respect to such series pursuant to a declaration in
accordance with Section 4.1 of such Indenture or if the Convertible Debt
Securities of any series provide that an amount other than the face thereof
will or may be payable upon the maturity thereof or a declaration of accel-
eration of the maturity thereof, such amount as may be due and payable with
respect to such securities pursuant to a declaration in accordance with
Section 4.1 of the Indenture) delivered within 180 days after such sale or
transfer to the Trustee for retirement and cancellation and (b) the principal
amount of Funded Debt, other than the Convertible Debt Securities of any
series, voluntarily retired by the Company within 180 days after such sale or
transfer. Notwithstanding the foregoing, no retirement referred to in this
clause (ii) may be effected by payment at maturity or pursuant to any
mandatory sinking fund payment or any mandatory prepayment provision.
(Section 3.5)
Consolidation, Merger, Sale, Conveyance and Lease. Each of the
Indentures permits the Company to consolidate or merge with or into any other
entity or entities, or to sell, convey or lease all or substantially all of
its property to any other entity; provided, however, (i) that the person (if
other than the Company) formed by such consolidation, or into which the
Company is merged or which acquires or leases substantially all of the
property of the Company, expressly assumes the Company's obligations on the
Convertible Debt Securities and under such Indenture and (ii) that the Company
or such successor entity shall not immediately after such consolidation or
merger, or such sale, conveyance or lease, be in default in the performance of
any covenant or condition of such Indenture. (Article Eight)
EVENTS OF DEFAULT, WAIVER AND NOTICE
<PAGE>
As to any series of Convertible Debt Securities, an Event of Default
is defined in each of the Indentures as (a) default in the payment of any
installment of interest, if any, on the Convertible Debt Securities of such
series and the continuance of such default for a period of 30 days;
(b) default in the payment of the principal of (and premium, if any, on) any
of the Convertible Debt Securities of such series when due, whether at
maturity, upon redemption, by declaration or otherwise; (c) default in the
payment of a sinking fund installment, if any, on the Convertible Debt
Securities of such series; (d) default by the Company in the performance of
any other covenant or agreement contained in such Indenture for the benefit of
such series and the continuance of such default for a period of 90 days after
written notice as provided in such Indenture; (e) certain events of
bankruptcy, insolvency and reorganization of the Company; and (f) any other
Event of Default established with respect to Convertible Debt Securities of
that series. (Sections 2.4 and 4.1)
The Trustee shall, within 90 days after the occurrence of a default
with respect to Convertible Debt Securities of any series, give all holders of
Convertible Debt Securities of such series then outstanding notice of all
uncured defaults known to it (the term default to mean the event specified
above without grace periods); provided that, except in the case of a default
in the payment of principal (and premium, if any) or interest, if any, on any
Convertible Debt Security of any series, or in the payment of any sinking fund
installment with respect to Convertible Debt Securities of any series, the
Trustee shall be protected in withholding such notice if it in good faith
determines that the withholding of such notice is in the interest of all
holders of Convertible Debt Securities of such series then outstanding. (TIA)
Each of the Indentures provides that if an Event of Default with
respect to Convertible Debt Securities of any series at the time outstanding
shall occur and be continuing, either the Trustee or the holders of at least
25% in aggregate principal amount (calculated as provided in such Indenture)
of the Convertible Debt Securities of such series then outstanding may declare
the principal (or, in the case of original issue discount Convertible Debt
Securities, the portion thereof as may be specified in the Prospectus
Supplement relating to such series) of the Convertible Debt Securities of such
series and the interest accrued thereon, if any, to be due and payable
immediately. (Section 4.1)
Upon certain conditions such declarations may be annulled and past
defaults (except for defaults in the payment of principal (or premium, if any)
or interest, if any, on such Convertible Debt Securities not theretofore
cured) may be waived by the holders of not less than a majority in aggregate
principal amount (calculated as provided in each of the Indentures) of the
Convertible Debt Securities of such series then outstanding. (Section 4.9)
Under each of the Indentures, the Company is required to file with
the Trustee annually a statement by certain officers of the Company to the
effect that to the best of their knowledge the Company is not in default in
the fulfillment of any of its obligations under such Indenture or, if there
has been a default in the fulfillment of any such obligation, specifying each
such default. (Section 3.9). Each of the Indentures further requires that the
Company file with the Trustee written notice of the occurrence of any default
or Event of Default thereunder within five business days of its becoming aware
of any such default or Event of Default. (Section 3.6)
Each of the Indentures provides that, if a default or an Event of
Default shall have occurred and be continuing, the holders of not less than a
majority in aggregate principal amount (calculated as provided in such
Indenture) of the Convertible Debt Securities of such affected series then
outstanding (with each such series voting separately as a class) shall have
the right to direct the time, method and place of conducting any proceeding or
remedy available to the Trustee, or exercising any trust of power conferred on
the Trustee by such Indenture with respect to Convertible Debt Securities of
such series. (Section 4.8)
<PAGE>
Each of the Indentures provides that the Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by such
Indenture at the direction of the holders of Convertible Debt Securities
unless such holders shall have offered to the Trustee reasonable security or
indemnity against expenses and liabilities. (Section 5.1(d))
SUBORDINATION OF CONVERTIBLE SUBORDINATED DEBT SECURITIES
The obligation of the Company to make payment on account of the
principal of, and premium, if any, and interest, if any, on the Convertible
Subordinated Debt Securities will be subordinated and junior in right of
payment, as set forth in the Convertible Subordinated Debt Indenture, to the
prior payment in full of all Senior Indebtedness.
"Senior Indebtedness" means all the principal, premium, if any,
accrued and unpaid interest (including interest accruing on or after the
filing of any petition in bankruptcy or for reorganization relating to the
Company whether or not a claim for post-filing interest is allowed in such
proceeding), of Indebtedness of the Company, whether any such Indebtedness
exists as of the date of the Subordinated Debt Indenture or shall thereafter
be created, incurred, assumed or guaranteed by the Company, other than the
following: (1) any Indebtedness as to which, in the instrument evidencing
such Indebtedness or pursuant to which such Indebtedness was issued, it is
expressly provided that such Indebtedness is subordinate in right of payment
to all Indebtedness of the Company not expressly subordinated to such
Indebtedness; (2) any Indebtedness which by its terms refers explicitly to the
Convertible Subordinated Debt Securities and states that such Indebtedness
shall not be senior, shall be pari passu or shall be subordinated in right of
payment to the Convertible Subordinated Debt Securities; and (3) with respect
to any series of Convertible Subordinated Debt Securities, any Indebtedness of
the Company evidenced by Convertible Subordinated Debt Securities of the same
or of another series. Notwithstanding anything to the contrary in the
foregoing, Senior Indebtedness shall not include Indebtedness of the Company
to a subsidiary of the Company. (Section 1.1 of the Convertible Subordinated
Debt Indenture). "Indebtedness," when used with respect to the Company,
means, (i) indebtedness of the Company for money borrowed, (ii) guarantees by
the Company of indebtedness for money borrowed by any other person, (iii)
indebtedness of the Company evidenced by notes, debentures, bonds or other
similar instruments of indebtedness for payment of which the Company is
responsible or liable, by guarantees or otherwise (including purchase money
obligations), but shall not include any amounts owed to trade creditors in the
ordinary course of business and (iv) any deferral, amendment, renewal,
extension, supplement or refunding of any liability of the kind described in
any such indebtedness and guarantees. (Section 1.1 of the Subordinated Debt
Indenture)
No payment or distribution shall be made by the Company on account
of principal of (or premium, if any) or interest, if any, on the Convertible
Subordinated Debt Securities, whether upon stated maturity, upon redemption or
acceleration, or otherwise, or on account of the purchase or other acquisition
of the Convertible Subordinated Debt Securities, whether upon stated maturity,
upon redemption or acceleration, or otherwise, if there exists a default in
the payment of all or any portion of principal of, premium, if any, or
interest on any Senior Indebtedness when due and the Trustee has received
written notice thereof from the indenture trustee or other trustee, agent or
representative for the respective issue of Senior Indebtedness (the
"Representative"), and such default shall not have been cured or waived or the
benefits of this sentence waived by or on behalf of the holders of such Senior
Indebtedness. In addition, if there shall have occurred and be continuing a
default (other than a default described in the preceding sentence) with
respect to any Senior Indebtedness pursuant to which the maturity thereof may
be accelerated (without further notice and after the expiration of any
applicable grace periods) and upon receipt by the Trustee of written notice of
such default from the Representative of such Senior Indebtedness (the "Payment
Notice"), the Company shall not make any payments on the Convertible
Subordinated Debt Securities until the earlier of (x) 179 days after the date
<PAGE>
on which a Payment Notice has been given and (y) the date, if any, on which
the Trustee receives written notice from the Representative who delivered the
Payment Notice, that such default is cured or waived or has ceased to exist or
the related Senior Indebtedness is discharged ("Payment Blockage Period"). No
more than one Payment Notice is permitted for any one default on Senior
Indebtedness (which shall not bar subsequent Payment Notices for other such
defaults). All defaults on Senior Indebtedness occurring within a 30-day
period shall be treated as one default on such Senior Indebtedness for
purposes of the preceding sentence. Notwithstanding the foregoing, no more
than one Payment Blockage Period may be commenced with respect to the
Convertible Subordinated Debt Securities during any 360-day period. A failure
to make any payment with respect to the Convertible Subordinated Debt
Securities as a result of the foregoing provisions will not limit the right
of the holders of the Convertible Subordinated Debt Securities to accelerate
the maturity thereof as a result of such payment default. (Section 12.3 of
the Subordinated Debt Indenture).
Upon any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding up or liquidation or reorganization
of the Company, whether voluntary or involuntary, or in bankruptcy, insol-
vency, receivership or other proceedings, all amounts due or to become due
upon all Senior Indebtedness shall first be paid in full, or payment thereof
provided for to the satisfaction of the holders thereof, before any payment or
distribution will be made on account of the redemption price or principal of
(and premium, if any) or interest, if any, on the Convertible Subordinated
Debt Securities.
By reason of such subordination, in the event of liquidation or
insolvency of the Company, creditors of the Company who are holders of Senior
Indebtedness may recover more, ratably, than the holders of the Convertible
Subordinated Debt Securities.
DEFEASANCE
Defeasance and Discharge. Each of the Indentures provides that the
Company will be discharged from any and all obligations in respect of the
Convertible Debt Securities of any series (except for certain obligations to
register the transfer or exchange of Convertible Debt Securities of such
series, to replace stolen, lost or mutilated Convertible Debt Securities of
such series, to maintain paying agencies and to hold monies for payment in
trust) upon the deposit with the Trustee, in trust, of money and/or U.S.
Government Obligations (as defined in such Indenture) which through the
payment of interest and principal in respect thereof in accordance with their
terms will provide money in an amount sufficient to pay the principal of and
each installment of interest on the Convertible Debt Securities of such series
on the stated maturity of such payments in accordance with the terms of the
Indenture under which the Convertible Debt Securities of such series were
issued and the terms of the Convertible Debt Securities of such series.
(Sections 9.6 and 9.8) Such a trust may only be established if, among other
things, the Company delivers to the Trustee an opinion of counsel (who may be
counsel to the Company) stating that either (i) the Company has received from,
or there has been published by, the Internal Revenue Service a ruling or (ii)
since the date of the relevant Indenture there has been a change in the
applicable Federal income tax law, to the effect that holders of the
Convertible Debt Securities of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of such defeasance and will
be subject to Federal income tax on the same amount and in the same manner and
at the same times, as would have been the case if such defeasance had not
occurred. (Section 9.8)
Defeasance of Certain Covenants and Certain Events of Default. Each
of the Indentures provides that the Company may omit to comply with the
covenants regarding limitations on sale and leaseback transactions and
limitations on liens described above and Section 4.1(d) of such Indenture
(described in clause (d) under the caption "Events of Default" above), which
<PAGE>
noncompliance shall not be deemed to be an Event of Default under such
Indenture and the Convertible Debt Securities of a series issued thereunder,
upon the deposit with the Trustee, in trust, of money and/or U.S. Government
Obligations which through the payment of interest and principal in respect
thereof in accordance with their terms will provide money in an amount
sufficient to pay the principal of and each installment of interest on the
Convertible Debt Securities of such series on the stated maturity of such
payments in accordance with the terms of such Indenture and the Convertible
Debt Securities of such series. The obligations of the Company under such
Indenture and the Convertible Debt Securities of such series, other than with
respect to the covenants referred to above, and the Events of Default, other
than the Event of Default referred to above, shall remain in full force and
effect. (Sections 9.7 and 9.8) Such a trust may only be established if,
among other things, the Company has delivered to the Trustee an opinion of
counsel (who may be counsel to the Company) to the effect that the holders of
the Convertible Debt Securities of such series will not recognize income,
gain, or loss for Federal income tax purposes as a result of such defeasance
of certain covenants and Events of Default and will be subject to Federal
income tax on the same amounts and in the same manner and at the same times,
as would have been the case if such deposit and defeasance had not occurred.
(Section 9.8)
In the event the Company exercises its option, with respect to the
Convertible Debt Securities of a series, to omit compliance with certain
covenants of the Indenture under which the Convertible Debt Securities of such
series were issued, as described in the preceding paragraph, the Convertible
Debt Securities of such series are declared due and payable because of the
occurrence of any Event of Default other than an Event of Default described in
clause (d) under the caption "Events of Default" above, the amount of money
and U.S. Government Obligations on deposit with the Trustee will be sufficient
to pay amounts due on the Convertible Debt Securities of such series at the
time of their stated maturity but may not be sufficient to pay amounts due on
the Convertible Debt Securities of such series at the time of the
acceleration resulting from such Event of Default.
MODIFICATION OF THE INDENTURES
Each of the Indentures contains provisions permitting the Company
and the Trustee, with the consent of the holders of not less than a majority
in aggregate principal amount (calculated as provided in such Indenture) of
the outstanding Convertible Debt Securities of all series affected by such
modification (all such series voting as a single class), to modify such
Indenture or any supplemental indenture or the rights of the holders of the
Convertible Debt Securities; provided that no such modification shall
(i) extend the fixed maturity of any Convertible Debt Security, or reduce the
principal or premium amount thereof, or reduce the rate or extend the time of
payment of interest, if any, thereon, or make the principal amount thereof or
interest or premium, if any, thereon payable in any coin or currency other
than that provided in the Convertible Debt Security, or reduce the portion of
the principal amount of an original issue discount Convertible Debt Security
(or a Convertible Debt Security that provides that an amount other than the
face amount thereof will or may be payable upon a declaration of acceleration
of the maturity thereof) due and payable upon acceleration of the maturity
thereof or the portion of the principal amount thereof provable in bankruptcy,
or reduce any amount payable upon redemption of any Convertible Debt Security,
or reduce the overdue rate thereof, or impair, if the Convertible Debt
Securities provide therefor, any right of repayment at the option of the
holder of a Convertible Debt Security, without the consent of the holder of
each Convertible Debt Security so affected, or (ii) reduce the aforesaid
percentage of Convertible Debt Securities the consent of the holders of which
is required for any such modification, without the consent of the holder of
each Convertible Debt Security so affected. (Section 7.2)
Each of the Indentures also permits the Company and the Trustee to
amend such Indenture in certain circumstances without the consent of the
holders of any Convertible Debt Securities to evidence the merger of the
<PAGE>
Company or the replacement of the Trustee and for certain other purposes.
(Section 7.1)
CONCERNING THE TRUSTEE
Except during the continuance of an Event of Default, the Trustee
shall perform only such duties as are specifically set forth in each of the
Indentures. During the continuance of any Event of Default, the Trustee shall
exercise such of the rights and powers vested in it under such Indenture and
use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs. (TIA)
The Trustee may acquire and hold Securities and, subject to certain
conditions, otherwise deal with the Company as if it were not Trustee under
such Indenture. (Section 5.3)
NGC currently conducts banking transactions with the Trustee in the
ordinary course of the NGC's business.
DESCRIPTION OF WARRANTS
The Company may issue Warrants, evidenced by warrant certificates
(the "Warrant Certificates") for the purchase of Common Stock. Warrants may
be issued together with or separately from, any Securities offered by any
Prospectus Supplement and, if issued together with Securities, may be attached
to or separate from such Securities. The Warrants are to be issued under one
or more separate Warrant Agreements (each a "Warrant Agreement") to be entered
into between the Company and a bank or trust company, as Warrant Agent, all as
set forth in the Prospectus Supplement relating to the particular issue of
Warrants. The Warrant Agent will act solely as an agent of the Company in
connection with the Warrants and will not assume any obligation or
relationship of agency or trust for or with any holders of Warrants or
beneficial owners of Warrants. The statements set forth below are summaries
of certain provisions of the Warrants and the Warrant Agreements and are
subject to the detailed provisions of the Warrant Agreement. These summaries
contain all material provisions, but do not purport to be complete and are
subject to, and are qualified in their entirety by, all the provisions of the
Warrants and the Warrant Agreement, copies of which are filed as exhibits to
the Registration Statement.
GENERAL
If Warrants are offered, reference is made to the Prospectus
Supplement which accompanies this Prospectus for a description of the specific
terms of the Warrants being offered thereby, including (i) the specific
designation and aggregate number of such Warrants, (ii) the offering price and
the currency or composite currencies for which Warrants may be purchased,
(iii) the aggregate amount of Common Stock purchasable upon exercise of the
Warrants, (iv) if applicable, the designation and terms of the Securities with
which the Warrants are issued, (v) if applicable, the date on and after which
the Warrants and the related Securities will be separately transferable, (vi)
the amount of Common Stock purchasable upon exercise of one Warrant and the
price or the manner of determining the price and currency or composite curren-
cies or other consideration (which may include Securities) for which such
amount of Common Stock may be purchased upon such exercise, (vii) the date on
which the right to exercise the Warrants shall commence and the date on which
such right shall expire (the "Expiration Date"), (viii) the terms of any
mandatory or optional redemption by the Company, (ix) certain Federal income
tax consequences, (x) whether the Warrant Certificates will be issued in
registered or unregistered form, and (xi) any other special terms pertaining
to such Warrants. Unless otherwise specified in the applicable Prospectus
Supplement, the Warrants will not be listed on any securities exchange.
<PAGE>
Warrant Certificates may be exchanged for new Warrant Certificates
of different denominations, may (if in registered form) be presented for
registration of transfer and change and may be exercised at an office or
agency of the Warrant Agent maintained for that purpose. No service charge
will be made for any transfer or exchange of Warrant certificates, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. (Section 1.05 of the
Warrant Agreement) Prior to the exercise of their Warrants, holders of
Warrants will not have any of the rights of holders of the Common Stock
purchasable upon such exercise, including the right to receive payments, if
any, on the Common Stock purchasable upon such exercise. (Section 3.01 of the
Warrant Agreement)
EXERCISE OF WARRANTS
Warrants may be exercised by delivery to the Warrant Agent of
payment as provided in the Prospectus Supplement of the applicable amount
required to purchase the Common Stock purchasable upon such exercise together
with certain information set forth on the reverse side of the Warrant
Certificate. Unless otherwise provided in the Prospectus Supplement, upon
receipt of such payment and the Warrant Certificate, a new Warrant Certificate
will be issued for the amount of unexercised Warrants. (Section 2.01 of
Warrant Agreement)
The exercise price payable and the number of shares of Common Stock
purchasable upon the exercise of each Warrant will be subject to adjustment in
certain events, including the issuance of a stock dividend to holders of
Common Stock or a combination, subdivision or reclassification of Common
Stock. No adjustment in the exercise price payable and the number of shares
purchasable upon exercise of the Warrants will be required until cumulative
adjustments require an adjustment of at least 1% thereof. The Company may, at
its option, reduce the exercise price at any time. No fractional shares will
be issued upon exercise of Warrants, but the Company will pay the cash value
of any fractional shares otherwise issuable. Notwithstanding the foregoing,
in case of any consolidation, merger, or sale or conveyance of the property of
the Company as an entirety, the holder of each outstanding Warrant shall have
the right to the kind and amount of shares of stock and other securities and
property (including cash) receivable by a holder of the number of shares of
Common Stock into which such Warrants were exercisable immediately prior
thereto. (Sections 5.01 and 5.02 of the Warrant Agreement)
MODIFICATION OF WARRANT AGREEMENT
The Warrant Agreement contains a provision permitting the Company
and the Warrant Agent, without the consent of any Warrant Holder, to
supplement or amend the Warrant Agreement in order to cure any ambiguity, and
to correct or supplement any provision contained therein which may be
defective or inconsistent with any other provision or to make other provisions
in regard to matters or questions arising thereunder which the Company and the
Warrant Agent may deem necessary or desirable and which do not adversely
affect the interests of the Warrant Holders. (Section 7.01 of the Warrant)
FEDERAL 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
Securities, notwithstanding such non-United States person's lack of other
connections with the United States. However, because the Common Stock of the
<PAGE>
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 Securities 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 Securities with the lowest fair market value.
However, if such non-regularly traded class of Securities is convertible into
a regularly traded class of Securities, the special tax and the withholding
tax would apply to the disposition of an interest in such non-regularly traded
class of Securities 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 Securities 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 Securities 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 Securities at any time during the five-year
period immediately preceding the disposition of the interest.
Certain United States federal tax consequences of an investment in a
class of Securities will, to the extent appropriate under the circumstances,
be described in the Prospectus Supplement relating thereto. Each prospective
holder of Securities is urged to consult its own tax advisors regarding the
United States federal tax consequences of an investment in such Securities, as
well as the tax consequences under the laws of any state, local or other
United States or non-United States taxing jurisdiction.
PLAN OF DISTRIBUTION
General. The Company may sell Offered Securities to or through
underwriters or dealers, and also may sell Offered Securities directly to
other purchasers or through agents.
The distribution of the Offered Securities may be effected from time
to time in one or more transactions at a fixed price or prices, which may be
changed, at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices.
In connection with the sale of Offered Securities, underwriters may
receive compensation from the Company or from purchasers of Offered Securities
for whom they may act as agents in the form of discounts, concessions or
commissions. Underwriters may sell Offered Securities to or through dealers
and such dealers may receive compensation in the form of discounts,
concessions and commissions from the Underwriters and commissions from the
purchasers for whom they may act as agents. Underwriters, dealers and agents
that participate in the distribution of Offered Securities may be deemed to be
underwriters, and any discounts or commissions received by them from the
Company and any profit on the resale of Offered Securities by them may be
deemed to be underwriting discounts and commissions under the Act. Any such
underwriter or agent will be identified, and any such compensation received
from the Company will be described, in the Prospectus Supplement.
Except for the Common Stock, the Offered Securities will be a new
issue of securities with no established trading market. Underwriters and
agents to whom such Offered Securities are sold by the Company for public
offering and sale may make a market in such Offered Securities, but such
underwriters and agents will not be obligated to do so and may discontinue any
market making at any time without notice. No assurance can be given as to the
liquidity of the trading market for such Offered Securities.
Under agreements which may be entered into by the Company,
underwriters, dealers and agents who participate in the distribution of
<PAGE>
Offered Securities may be entitled to indemnification by the Company against
certain liabilities, including liabilities under the Act.
Delayed Delivery Arrangements. If so indicated in the Prospectus
Supplement, the Company will authorize underwriters or other persons acting as
the Company's agents to solicit offers by certain institutions to purchase
Convertible Debt Securities from the Company pursuant to contracts providing
for payment and delivery on a future date. Institutions with which such
contracts may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others, but in all cases such institutions must be approved
by the Company. The obligations of any purchaser under any such contract will
be subject to the condition that the purchase of the Convertible Debt
Securities shall not at the time of delivery be prohibited under the laws of
the jurisdiction to which such purchaser is subject. The underwriters and
such other persons will not have any responsibility in respect of the validity
or performance of such contracts.
VALIDITY OF SECURITIES
The validity of the Offered Securities will be passed upon for the
Company by White & Case, 1155 Avenue of the Americas, New York, New York, and
for the underwriters or agents, if any, 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. PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENTS
<S> <C>
1.1* - Proposed form of Underwriting Agreement relating to the Common Stock, the Preferred Stock, the Depositary Shares
and the Warrants.
1.2* - Proposed form of Underwriting Agreement relating to the Convertible Debt Securities.
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 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.
<PAGE>
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 - First Amendment dated November 27, 1990 and Second
and Amendment dated December 7, 1990 to the aforementioned
4.9 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 to 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).
4.12* - Senior Debt Indenture between registrant and The Bank of New York (including form of Convertible Senior Debt
Securities).
4.13* - Subordinated Debt Indenture between registrant and The Bank of New York (including form of Convertible Subordinated
Debt Securities).
4.14* - Form of Deposit Agreement (including form of Depositary Receipt).
4.15* - Form of Warrant Agreement (including form of Warrant).
5* - Opinion of White & Case.
12.1 - Computation of Ratio of Earnings to Fixed Charges. Incorporated by reference to Exhibit 12 to the Company's Annual
Report on Form 10-K for the year ended December 31, 1994.
12.2 - Computation of Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends. Incorporated by
reference to Exhibit 12 to the Company's Annual Report on Form 10-K for the year ended December 31, 1994.
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.
25.1* - Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York,
Senior Debt Indenture Trustee.
25.2* - Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York,
Subordinated Debt Indenture Trustee.
* Previously filed.
</TABLE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED, THE REGISTRANT CERTIFIES THAT IT HAS DULY CAUSED THIS POST-EFFECTIVE
AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY
THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF DENVER, STATE OF
COLORADO, ON THE 17TH DAY OF APRIL, 1995.
<PAGE>
NEWMONT MINING CORPORATION
By /s/ Timothy J. Schmitt
Timothy J. Schmitt
Vice President, Secretary and
Assistant General Counsel
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS (WHO
INCLUDE A MAJORITY OF THE BOARD OF DIRECTORS) IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
* April 17, 1995
Rudolph I.J. Agnew Director
* April 17, 1995
J.P. Bolduc Director
* April 17, 1995
Ronald C. Cambre Chairman, President and Chief
Executive Officer and Director
(Principal Executive Officer)
* April 17, 1995
Joseph P. Flannery Director
* April 17, 1995
Thomas A. Holmes Director
* April 17, 1995
Robin A. Plumbridge Director
* April 17, 1995
William I.M. Turner, Jr. Director
* April 17, 1995
Wayne W. Murdy Senior Vice President and Chief
Financial Officer (Principal
Financial Officer)
* April 17, 1995
Gary E. Farmar Vice President and Controller
(Principal Accounting
Officer)
*By /s/ Timothy J. Schmitt
Timothy J. Schmitt as
Attorney-in-fact
</TABLE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
<PAGE>
<C> <S>
1.1* - Proposed form of Underwriting Agreement relating to the Common Stock, the Preferred Stock, the Depositary Shares
and the Warrants.
1.2* - Proposed form of Underwriting Agreement relating to the Convertible Debt Securities.
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 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 - First Amendment dated November 27, 1990 and Second Amendment dated
and December 7, 1990 to the aforementioned Rights Agreement dated August 30,
4.9 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 to 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).
4.12* - Senior Debt Indenture between registrant and The Bank of New York (including form of Convertible Senior Debt
Securities).
4.13* - Subordinated Debt Indenture between registrant and The Bank of New York (including form of Convertible Subordinated
Debt Securities).
4.14* - Form of Deposit Agreement (including form of Depositary Receipt).
4.15* - Form of Warrant Agreement (including form of Warrant).
5* - Opinion of White & Case.
12.1 - Computation of Ratio of Earnings to Fixed Charges. Incorporated by reference to Exhibit 12 to the Company's Annual
Report on Form 10-K for the year ended December 31, 1994.
12.2 - Computation of Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends. Incorporated by
reference to Exhibit 12 to the Company's Annual Report on Form 10-K for the year ended December 31, 1994.
23.1 - Consent of Arthur Andersen LLP.
23.2* - Consent of White & Case (included in Exhibit 5).
<PAGE>
24* - Power of Attorney of certain officers and directors.
25.1* - Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York,
Senior Debt Indenture Trustee.
25.2* - Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York,
Subordinated Debt Indenture Trustee.
* Previously filed.
</TABLE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-3 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.
ARTHUR ANDERSEN LLP
Denver, Colorado,
April 13, 1995.
