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Registration No. 333-
As filed with The Securities and Exchange Commission on July 15, 1998
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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NEWMONT MINING CORPORATION
(Exact name of Registrant as specified in its charter)
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<S> <C> <C>
DELAWARE 1700 LINCOLN STREET 13-1806811
(STATE OR OTHER JURISDICTION OF DENVER, COLORADO (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION) (303) 863-7414
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(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
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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)
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Copies to:
MAUREEN BRUNDAGE, ESQ
WHITE & CASE LLP
1155 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10036
(212) 819-8200
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Approximate date of commencement of proposed sale to the public: From
time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED (1) PER UNIT (2) PRICE (1)(2) REGISTRATION FEE
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<S> <C> <C> <C> <C>
COMMON STOCK, PAR VALUE $1.60 PER
SHARE (3) ................................
PREFERRED STOCK, PAR VALUE $5.00 PER
SHARE (4) ................................
DEPOSITARY SHARES (5).....................
WARRANTS TO PURCHASE COMMON STOCK (6).....
TOTAL................................. US$341,225,825 100% US$341,225,825 US$100,662
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(1) In United States dollars or the equivalent thereof in foreign currency or
currency units.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act of 1933, as amended. The
aggregate public offering price of the Common Stock, the Preferred Stock,
the Depositary Shares and the Warrants registered hereby will not exceed
$341,225,825.
(3) Such indeterminate number of shares of Common Stock as may from time to
time be issued at indeterminate prices, including Common Stock issuable
upon conversion of Preferred Stock that is convertible and upon exercise of
Warrants. Includes preferred stock purchase rights which, prior to the
occurrence of certain events, will not be exercisable or evidenced
separately from the Common Stock.
(4) Such indeterminate number of shares of Preferred Stock as may be issued
from time to time at indeterminate prices.
(5) Such indeterminate number of Depositary Shares evidenced by Depositary
Receipts as may be issued in the event the Registrant elects to offer
fractional interests in shares of Preferred Stock registered hereunder. No
separate consideration will be received for the Depositary Shares.
(6) Warrants for the purchase of Common Stock may be offered and sold
separately or together with other securities registered hereunder.
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
included in this Registration Statement also relates to $58,774,175 maximum
aggregate offering price of Common Stock, Preferred Stock, Depositary Shares and
Common Stock Warrants previously registered under the Registrant's Registration
Statement on Form S-3 (Registration No. 33-54249). This Registration Statement
constitutes Post-Effective Amendment No. 2 to the Registrant's Registration
Statement on Form S-3 (Registration No. 33-54249).
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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PROSPECTUS
NEWMONT MINING CORPORATION
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COMMON STOCK
PREFERRED STOCK
DEPOSITARY SHARES
COMMON STOCK WARRANTS
Newmont Mining Corporation (the "Corporation") 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, and (iii) warrants to purchase Common Stock ("Warrants" and,
together with the Common Stock, the Preferred Stock and the Depositary Shares,
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
determined at the time of sale and to be set forth in supplements to this
Prospectus. The Securities will be limited to $400,000,000 aggregate public
offering price. The Corporation 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 (the "Prospectus Supplement"),
including, where applicable: the specific designation or title; aggregate
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 the Warrants, expiration date and terms of
exercise; the initial public offering price; the names of any underwriters or
agents; the amount to be purchased by underwriters or agents, if any, and the
compensation, if any, of such underwriters or agents; the net proceeds to the
Corporation; and the other terms in connection with the Offered Securities.
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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.
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The date of this Prospectus is _________, 1998.
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AVAILABLE INFORMATION
The Corporation 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: 7 World Trade Center, Suite 1300, New York, New York
10048; and 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. The Corporation is an electronic filer with the Commission, which
maintains a web site containing reports, proxy statements and other information
at the following location: http://www.sec.gov. The shares of Common Stock are
listed on the New York Stock Exchange under the symbol "NEM" and on the Paris
Bourse, the Brussels Stock Exchange, the Swiss Stock Exchanges and the Lima
Stock Exchange. The periodic reports, proxy statements and other information
filed by the Corporation with the Commission may be inspected at the offices of
the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
This Prospectus constitutes part of a registration statement
(the "Registration Statement") filed by the Corporation 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
thereto for further information with respect to the Corporation and the
Securities offered hereby. Any statements contained herein concerning the
provisions of any document are qualified in all respects by reference to the
copy of such document filed as an exhibit to the Registration Statement or
otherwise filed with the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Corporation hereby incorporates by reference in this
Prospectus the following documents which have been filed with the Commission:
(a) the Corporation's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997 (including the portions of the Corporation's definitive Proxy
Statement dated March 30, 1998 relating to its 1998 Annual Meeting of
Stockholders incorporated therein by reference) and (b) the Corporation's
Quarterly Reports on Form 10-Q for the quarter ended March 31, 1998.
All documents filed by the Corporation 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 CORPORATION WILL PROVIDE WITHOUT CHARGE TO EACH PERSON,
INCLUDING BENEFICIAL OWNERS, TO WHOM A COPY OF THIS PROSPECTUS HAS BEEN
DELIVERED, ON THE REQUEST OF ANY SUCH PERSON, A COPY OF ANY OR ALL OF THE
DOCUMENTS REFERRED TO ABOVE WHICH HAVE BEEN OR MAY BE INCORPORATED IN THIS
PROSPECTUS BY REFERENCE, OTHER THAN EXHIBITS TO SUCH DOCUMENTS (UNLESS SUCH
EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE INTO SUCH DOCUMENTS).
REQUEST FOR SUCH COPIES SHOULD BE DIRECTED TO THE OFFICE OF THE SECRETARY,
NEWMONT MINING CORPORATION, 1700 LINCOLN STREET, DENVER, COLORADO 80203,
TELEPHONE: (303) 863-7414.
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THE CORPORATION
The Corporation was incorporated in 1921 under the laws of
Delaware. Its principal asset is approximately 94% of the outstanding shares of
common stock of Newmont Gold Company ("Newmont Gold"). Newmont Gold is engaged,
directly or through its subsidiaries and affiliates, in the production of gold,
the development of gold properties, the exploration for gold and the acquisition
of gold properties worldwide. Newmont Gold produces gold from operations in
Nevada and California, as well as in Peru, Indonesia and the Central Asian
Republic of Uzbekistan.
Since the Corporation's only principal asset is its interest
in Newmont Gold, the rights of the Corporation to participate in any
distribution of assets of Newmont Gold upon its liquidation or reorganization or
otherwise (and thus the ability of holders of the Securities to benefit from
such distribution) are subject to the prior claims of creditors of Newmont Gold,
except to the extent that the Corporation may itself be a creditor with
recognized claims against Newmont Gold. Claims on Newmont Gold by creditors may
include claims of holders of indebtedness and claims of creditors in the
ordinary course of business. Such claims may increase or decrease, and
additional claims may be incurred in the future.
The Corporation maintains its principal executive offices at
1700 Lincoln Street, Denver, Colorado 80203 (telephone: 303-863-7414).
RATIO OF EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The Corporation's ratio of earnings to combined fixed charges
and preferred stock dividends for each of the periods indicated below were as
follows:
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Three Months
Ended
March 31, 1998 Year Ended December 31,
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1997 1996 1995 1994 1993
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3.1 2.3 1.7 3.0 2.3 3.3
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In computing the ratios set forth above, "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 Corporation believes is a reasonable
approximation of the interest factor of such rental expense). Preferred stock
dividend requirements were 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 Corporation guarantees certain
third party debt which had total interest obligations of $0.3 million, $1.2
million, $1.2 million, $1.4 million, $1.0 million and $0.8 million for the three
months ended March 31, 1998 and the years ended December 31, 1997, 1996, 1995,
1994 and 1993, respectively. The Corporation 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.
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USE OF PROCEEDS
Unless otherwise set forth in the Prospectus Supplement, the
net proceeds to the Corporation from the sale of the Offered Securities will be
used to purchase securities from Newmont Gold having comparable terms and
provisions as the relevant Offered Securities. The net proceeds to Newmont Gold
from the sale to the Corporation of such comparable securities will be used by
Newmont Gold for general corporate purposes, unless otherwise set forth in the
Prospectus Supplement.
DESCRIPTION OF CAPITAL STOCK
The authorized capital of the Corporation consists of
5,000,000 shares of Preferred Stock, par value $5.00 per share, issuable in
series, of which 500,000 shares of Series A Junior Participating Preferred
Stock, par value $5.00 per share (the "Junior Preferred Shares"), were reserved
for issuance as of July 10, 1998, and 250,000,000 shares of Common Stock, par
value $1.60 per share, of which 156,512,263 were issued and outstanding as of
July 10, 1998. Holders of the Corporation's capital stock have no preemptive or
subscription rights to purchase any securities of the Corporation. All
outstanding shares of capital stock of the Corporation are fully paid and
nonassessable.
DESCRIPTION OF COMMON STOCK
The statements set forth below are summaries of certain
provisions relating to the Common Stock of the Corporation. These summaries
contain all material provisions, but are subject to, and are qualified in their
entirety by, the provisions of the Corporation's Restated Certificate of
Incorporation, as amended by an Amendment thereto, copies of which are filed as
exhibits to the Registration Statement. See "Available Information."
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 out of assets legally available therefor at such times and in
such amounts as may be declared from time to time by the Board of Directors.
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 Common Stock. Each outstanding share of Common Stock is
entitled to one vote on all matters submitted to a vote of the stockholders of
the Corporation. There is no cumulative voting. The Board of Directors of the
Corporation is expressly authorized to adopt, amend or repeal the By-Laws of the
Corporation in any manner not inconsistent with the laws of the State of
Delaware or the Corporation's Restated Certificate of Incorporation, subject to
the power of the stockholders of the Corporation to adopt, amend or repeal the
By-Laws of the Corporation or to limit or restrict the power of the Board of
Directors of the Corporation to adopt, amend or repeal the By-Laws of the
Corporation, and the Corporation may in its By-Laws confer powers and
authorities upon the Board of Directors of the Corporation in addition to those
conferred upon it by statute.
LIQUIDATION RIGHTS
Subject to the prior rights of creditors and the holders of
any Preferred Stock which may be outstanding from time to time, the shares of
Common Stock are entitled, in the event of voluntary or involuntary
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liquidation, dissolution or winding up, to share pro rata in the distribution of
all remaining assets, which are legally available for distribution, after
payment of all debts and other liabilities.
REDEMPTION
The shares of Common Stock are neither redeemable nor
convertible.
ANTI-TAKEOVER PROVISIONS
APPROVAL OF CERTAIN MERGERS, CONSOLIDATIONS, SALES AND LEASES
Article NINTH of the Corporation's Restated Certificate of
Incorporation (the "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 Corporation entitled to vote in elections of
directors (considered as one class) shall be required (a) for the adoption of
any agreement for the merger or consolidation of the Corporation with or into
any other corporation, or (b) to authorize any sale or lease of all or any
substantial part of the assets of the Corporation to, or any sale or lease to
the Corporation or any subsidiary thereof in exchange for securities of the
Corporation of any assets (except assets having an aggregate fair market value
of less than $10 million) of, any other corporation, person or other entity if,
in either case, as of the record date for determination of stockholders entitled
to notice thereof or to vote thereon or consent thereto 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 Corporation entitled to vote in
elections of directors (a "10% Holder") considered for the purposes of Article
NINTH as one class. Such affirmative vote or consent shall be in addition to the
vote or consent of the holders of the stock of the Corporation otherwise
required by law or any agreement between the Corporation 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
Corporation (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 (including shares deemed
owned through application of clause (i) above) by any other corporation, person
or entity, with which it or its affiliates or associates (as defined in the
Certificate of Incorporation) have any agreement, arrangement or understanding
for the purpose of acquiring, holding, voting or disposing of stock of the
Corporation, 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 Corporation
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 Corporation 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
Corporation 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 Corporation and may make removal of management of the
Corporation more difficult.
APPROVAL OF 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 Corporation and The Chase Manhattan Bank, as
successor
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Rights Agent. The following is a summary of the terms of the Rights Agreement.
This summary contains all material provisions, but 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. See "Available Information."
Following the Distribution Date referred to below and except
as described below, each Right entitles the registered holder to purchase from
the Corporation one five-hundredth of a share (a "Preferred Share Fraction") of
the Junior Preferred Shares, at a purchase price of $150 per Preferred Share
Fraction, subject to adjustment (the "Purchase Price"). Unless earlier redeemed
by the Corporation or expired as a result of the occurrence of a transaction
described in Section 13(d) of the Rights Agreement, 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 under the Rights Agreement (the
"Distribution Date") will occur upon the earlier of (i) the close of business on
the tenth day after the date of a public announcement that a person (other than
any Exempt Person (as defined in the Rights Agreement)) or group of affiliated
or associated persons (an "Acquiring Person") has acquired, or obtained the
right to acquire, beneficial ownership of 15% or more of the outstanding Common
Stock (the "Stock Acquisition Date"), or (ii) the close of business on the tenth
business day after the date of the commencement of a tender offer or exchange
offer that would result in a person or entity beneficially owning 15% or more of
the outstanding Common Stock. Until a Distribution Date, (i) the Rights will be
evidenced by the Common Stock certificates and will be transferred with and only
with such Common Stock certificates and (ii) the transfer of any outstanding
Common Stock certificates will also constitute a transfer of the Rights
associated therewith.
Except in the circumstances described below, after the
Distribution Date each Right will be exercisable into a Preferred Share
Fraction. Each Preferred Share Fraction carries voting and dividend rights that
are intended to produce the equivalent of one share of Common Stock, which
rights are subject to adjustment in the event of stock dividends, subdivisions
and combinations with respect to the Common Stock. In lieu of issuing
certificates for fractions of Junior Preferred Shares (other than fractions
which are integral multiples of one five-hundredth of a share), the Corporation
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 Corporation) 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 Corporation may provide that each Right be
exchanged for one share of Common Stock (or cash, property or other securities,
as the case may be). Following the occurrence of the event set forth in the
first sentence of this paragraph, all Rights that are, or (under certain
circumstances specified in the Rights Agreement) were, beneficially owned by any
Acquiring Person will be null and void.
In the event that, at any time following the Stock Acquisition
Date, (i) the Corporation is acquired in a merger or other business combination
transaction in which the Corporation is not the surviving corporation (other
than pursuant to certain Board approved tender or exchange offers), or (ii) the
Corporation is the surviving corporation of a consolidation or merger in
connection with which all or part of the outstanding Common Stock is changed
into or exchanged for stock or other securities of another corporation or cash
or any other property, or (iii) 50% or more of the Corporation'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.
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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 Corporation. 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 Corporation has the option to redeem the
Rights in whole, but not in part, at a price of $0.01 per Right, subject to
adjustment.
Prior to the Distribution Date, the Corporation may supplement
or amend the Rights Agreement without the approval of any holders of Common
Stock. From and after the Distribution Date, the Corporation may supplement or
amend the Rights Agreement without the approval of any holders of Rights under
limited circumstances. No supplement or amendment may be made that changes the
Redemption Price (as defined in the Rights Agreement), the Final Expiration
Date, the Purchase Price or the number of Preferred Share Fractions for which a
Right is exercisable.
The Rights have certain anti-takeover effects. The Rights may
cause substantial dilution to a person or group that attempts to acquire the
Corporation 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 Corporation because the Rights are either redeemable or are not
exercisable 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 Corporation. These summaries
contain all material provisions, but are subject to, and are qualified in their
entirety by, the provisions of the Certificate of Incorporation (which is filed
as an exhibit to the Registration Statement) and the Certificate of Designations
for Junior Preferred Shares described below. A form of the Certificate of
Designations for the Junior Preferred Shares is an exhibit to the Rights
Agreement. The Rights Agreement and the amendments thereto are filed as exhibits
to the Registration Statement. See "Available Information."
GENERAL
The Certificate of Incorporation authorizes the issuance of
5,000,000 shares of Preferred Stock, par value $5.00 per share, issuable in
series. The Board of Directors has the power to fix various terms with respect
to each series of Preferred Stock, including voting powers, designations,
preferences, the relative participating and optional or other rights,
qualifications, limitations and restrictions as set forth in resolutions
providing for the issue thereof adopted by the Board of Directors of the
Corporation or a duly authorized committee thereof. The Junior Preferred Shares
that may be issued in connection with the Corporation's Stockholder Rights Plan
(see "Description of Common Stock--Anti-Takeover Provisions--Stockholder Rights
Plan" and "Description of Preferred Stock--Junior Preferred Shares") is the only
series of Preferred Stock that the Board of Directors of the Corporation
currently has authorized for issuance by the Corporation.
JUNIOR PREFERRED SHARES
General. A total of 500,000 shares of Junior Preferred
Shares have been reserved for issuance upon exercise of the Rights. See
"Description of Common Stock--Anti-Takeover Provisions--Stockholder Rights
Plan."
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Dividend Rights. Each Junior Preferred Share has a
preferential quarterly dividend payable on the first day of January, April, July
and October of each year (or such other quarterly payment date as shall be
specified by the Board of Directors of the Corporation) 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 Corporation and, except as provided in the Certificate of
Designations for the Junior Preferred Shares, the 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 Corporation, 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 Corporation'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 Corporation 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 Corporation and a bank or trust company
selected by the Corporation (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. See
"Available Information." This summary contains all material provisions, but 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 Corporation's Restated Certificate of Incorporation and the Certificate
of Designation for such Preferred Stock.
-8-
<PAGE> 10
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.
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.
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.
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 Corporation 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.
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 or her 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 Corporation'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 Corporation equal to the market value of the fractional interest.
-9-
<PAGE> 11
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 Corporation 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.
CHARGES OF DEPOSITARY
The Corporation 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.
MISCELLANEOUS
The Corporation, or at the option of the Corporation, the
Depositary, will forward to the holders of Depositary Shares all reports and
communications from the Corporation which the Corporation may be required to
furnish to the holders of the underlying Preferred Stock.
Neither the Depositary nor the Corporation 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. The obligations of the
Corporation 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.
RESIGNATION AND REMOVAL OF DEPOSITARY; TERMINATION OF THE DEPOSIT AGREEMENT
The Depositary may resign at any time by delivering to the
Corporation notice of its election to do so, and the Corporation 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 Corporation within 60 days
after delivery of the notice of resignation or removal. The Deposit Agreement
may be terminated at the direction of the Corporation 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 Corporation 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 Corporation, 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 Corporation.
-10-
<PAGE> 12
DESCRIPTION OF WARRANTS
The Corporation 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 Corporation 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
Corporation 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 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. See "Available
Information."
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 currencies 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 Corporation, (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.
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 Corporation may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith. 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.
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.
-11-
<PAGE> 13
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
Corporation may, at its option, reduce the exercise price at any time. No
fractional shares will be issued upon exercise of Warrants, but the Corporation
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 Corporation 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.
MODIFICATION OF WARRANT AGREEMENT
The Warrant Agreement contains a provision permitting the
Corporation 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 Corporation and the Warrant
Agent may deem necessary or desirable and which do not adversely affect the
interests of the Warrant Holders.
FEDERAL TAX CONSIDERATIONS AS A REAL PROPERTY HOLDING CORPORATION
The Corporation believes that the Corporation 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 Corporation 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.
-12-
<PAGE> 14
PLAN OF DISTRIBUTION
General. The Corporation 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 Corporation 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
Corporation 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 Corporation 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 Corporation 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 Corporation,
underwriters, dealers and agents who participate in the distribution of Offered
Securities may be entitled to indemnification by the Corporation against certain
liabilities, including liabilities under the Act.
VALIDITY OF SECURITIES
The validity of the Offered Securities will be passed upon for
the Corporation by White & Case LLP, 1155 Avenue of the Americas, New York, New
York 10036.
EXPERTS
The consolidated financial statements and schedules
incorporated in this Prospectus by reference have been so incorporated in
reliance on the reports of Arthur Andersen LLP and PricewaterhouseCoopers LLP,
independent accountants, given on the authority of such firms as experts in
auditing and accounting.
-13-
<PAGE> 15
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.*
<TABLE>
<S> <C>
SEC filing fee................................... $100,662
Accounting fees and expenses..................... 7,000
Legal fees and expenses ......................... 200,000
Blue Sky expenses................................ 20,000
Warrant Agent's fees............................. 2,000
Depositary's fees................................ 2,000
Transfer Agent's fees............................ 2,000
Printing and engraving expenses.................. 25,000
Miscellaneous ................................... 5,000
--------
Total ........................................... $363,662
========
</TABLE>
- --------------------
*All estimates except for filing fee.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes
and empowers the Corporation to indemnify the directors, officers, employees and
agents of the Corporation against liabilities incurred in connection with, and
related expenses resulting from, any claim, action or suit brought against any
such person as a result of his or her relationship with the Corporation,
provided that such persons acted in good faith and in a manner such person
reasonably believed to be in, and not opposed to, the best interests of the
Corporation in connection with the acts or events on which such claim, action or
suit is based. The finding of either civil or criminal liability on the part of
such person in connection with such acts or events is not necessarily
determinative of the question of whether such person has met the required
standard of conduct and is, accordingly, entitled to be indemnified. The
foregoing statements are subject to the detailed provisions of Section 145 of
the General Corporation Law of the State of Delaware.
The By-Laws of the Corporation provide that each person who at
any time is or shall have been a director or officer of the Corporation, or is
or shall have been serving another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity at the request
of the Corporation, and his or her heirs, executors and administrators, shall be
indemnified by the Corporation in accordance with and to the full extent
permitted by the General Corporation Law of the State of Delaware. Section 6 of
the By-Laws of the Corporation facilitates enforcement of the right of directors
and owners to be indemnified by establishing such right as a contract right
pursuant to which the person entitled thereto may bring suit as if the
indemnification provisions of the By-Laws were set forth in a separate written
contract between the Corporation and the director or officer.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENTS
- ------- ------------------------
<S> <C> <C>
1 - Proposed form of Underwriting Agreement relating to the Common Stock, the Preferred Stock, the
Depositary Shares and the Warrants.
</TABLE>
II-1
<PAGE> 16
<TABLE>
<S> <C> <C>
4.1 - Restated Certificate of Incorporation dated as of July 13, 1987. Incorporated by reference to
Exhibit 3 to the Registrant's Form 10-K for the year ended December 31, 1987.
4.2 - Amendment to the Restated Certificate of Incorporation dated May 5, 1997.
4.3 - By-Laws as amended through November 1, 1993 and adopted November 1, 1993. Incorporated by
reference to Exhibit 3(b) to the Registrant's Annual Report on Form 10-K for the year ended
December 31, 1993.
4.4 - Rights Agreement dated August 30, 1990 (the "Rights Agreement") between the Registrant and
Manufacturers Hanover Trust Corporation, as Rights Agent. Incorporated by reference to Exhibit
1 to the Registrant's Registration Statement on Form 8-A dated August 31, 1990.
4.5 - First Amendment dated November 27, 1990 to the Rights Agreement. Incorporated by reference to
Exhibit 2 to the Registrant's Form 8 dated December 7, 1990.
4.6 - Second Amendment dated December 7, 1990 to the Rights Agreement. Incorporated by reference to
Exhibit 3 to the Registrant's Form 8 dated December 7, 1990.
4.7 - Third Amendment dated February 26, 1992 to the Rights Agreement. Incorporated by reference to
Exhibit 4 to the Registrant's Form 8 dated March 17, 1992.
4.8 - Form of Deposit Agreement (including form of Depositary Receipt). Incorporated by reference to
Exhibit 4.14 to the Registrant's Registration Statement on Form S-3 (No. 33-54249).
4.9 - Form of Warrant Agreement (including form of Warrant). Incorporated by reference to Exhibit
4.15 to the Registrant's Registration Statement on Form S-3 (No. 33-54249).
5 - Opinion of White & Case LLP.
12 - Computation of Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends.
23.1 - Consent of Arthur Andersen LLP.
23.2 - Consent of PricewaterhouseCoopers LLP.
23.3 - Consent of White & Case LLP (included in Exhibit 5).
24 - Power of Attorney of certain officers and directors.
</TABLE>
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales
are being made, a post-effective amendment to this registration
statement:
(i) to include any prospectus required by Section
10(a)(3) of the Act;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in
II-2
<PAGE> 17
the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the
low or high end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) to include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the 1934 Act that are incorporated by reference in the
registration statement;
(2) that, for the purpose of determining any liability under
the Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof;
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering;
(4) that, for purposes of determining any liability under the
Act, each filing of the Registrant's annual report pursuant to Section
13(a) or 15(d) of the 1934 Act that is incorporated by reference in
this registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(5) that, for purposes of determining any liability under the
Act, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained
in a form of prospectus, filed by the Registrant pursuant to Rule
424(b)(1) or (4) under the Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
Insofar as indemnification for liabilities arising under the
Act may be permitted to directors, officers and controlling persons of the
Corporation pursuant to the foregoing provisions, or otherwise, the Corporation
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Corporation of expenses incurred or paid by a director,
officer or controlling person of the Corporation in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Corporation will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
II-3
<PAGE> 18
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED, THE REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT
IT MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF DENVER, STATE OF COLORADO, ON THE 15TH DAY OF
JULY, 1998.
NEWMONT MINING CORPORATION
By /s/ Timothy J. Schmitt
------------------------------
Timothy J. Schmitt
Vice President, Secretary and
Assistant General Counsel
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
*
- ----------------------------
Ronald C. Cambre Chairman, President and Chief July 15, 1998
Executive Officer and Director
(Principal Executive Officer)
*
- ----------------------------
James T. Curry, Jr. Director July 15, 1998
*
- ----------------------------
Joseph P. Flannery Director July 15, 1998
*
- ----------------------------
Leo I. Higdon, Jr. Director July 15, 1998
*
- ----------------------------
Thomas A. Holmes Director July 15, 1998
*
- ----------------------------
George B. Munroe Director July 15, 1998
*
- ----------------------------
Robin A. Plumbridge Director July 15, 1998
*
- ----------------------------
Moeen A. Qureshi Director July 15, 1998
*
- ----------------------------
Michael K. Reilly Director July 15, 1998
</TABLE>
II-4
<PAGE> 19
<TABLE>
<S> <C> <C>
*
- ----------------------------
Jean Head Sisco Director July 15, 1998
*
- ----------------------------
William I.M. Turner, Jr. Director July 15, 1998
*
- ----------------------------
Wayne W. Murdy Executive Vice President and Chief July 15, 1998
Financial Officer (Principal
Financial Officer)
*
- ----------------------------
Linda K. Wheeler Controller July 15, 1998
(Principal Accounting Officer)
</TABLE>
*By /s/ Timothy J. Schmitt
-----------------------
Timothy J. Schmitt as
Attorney-in-fact
II-5
<PAGE> 20
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- -------
<S> <C> <C>
1 - Proposed form of Underwriting Agreement relating to the Common Stock, the Preferred Stock, the
Depositary Shares and the Warrants.
4.1 - Restated Certificate of Incorporation dated as of July 13, 1987. Incorporated by reference to
Exhibit 3 to the Registrant's Form 10-K for the year ended December 31, 1987.
4.2 - Amendment to the Restated Certificate of Incorporation dated May 5, 1997.
4.3 - By-Laws as amended through November 1, 1993 and adopted November 1, 1993. Incorporated by
reference to Exhibit 3(b) to the Registrant's Annual Report on Form 10-K for the year ended
December 31, 1993.
4.4 - Rights Agreement dated August 30, 1990 (the "Rights Agreement") between the Registrant and
Manufacturers Hanover Trust Company, as Rights Agent. Incorporated by reference to Exhibit 1 to
the Registrant's Registration Statement on Form 8-A dated August 31, 1990.
4.5 - First Amendment dated November 27, 1990 to the Rights Agreement. Incorporated by reference to
Exhibit 2 to the Registrant's Form 8 dated December 7, 1990.
4.6 - Second Amendment dated December 7, 1990 to the Rights Agreement. Incorporated by reference to
Exhibit 3 to the Registrant's Form 8 dated December 7, 1990.
4.7 - Third Amendment dated February 26, 1992 to the Rights Agreement. Incorporated by reference to
Exhibit 4 to the Registrant's Form 8 dated March 17, 1992.
4.8 - Form of Deposit Agreement (including form of Depositary Receipt). Incorporated by reference to
Exhibit 4.14 to the Registrant's Registration Statement on Form S-3 (No. 33-54249).
4.9 - Form of Warrant Agreement (including form of Warrant). Incorporated by reference to Exhibit
4.15 to the Registrant's Registration Statement on Form S-3 (No. 33-54249).
5 - Opinion of White & Case.
12 - Computation of Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends.
23.1 - Consent of Arthur Andersen LLP.
23.2 - Consent of PricewaterhouseCoopers LLP.
23.3 - Consent of White & Case LLP (included in Exhibit 5).
24 - Power of Attorney of certain officers and directors.
</TABLE>
<PAGE> 1
EXHIBIT 1
NEWMONT MINING CORPORATION
Equity Securities
Underwriting Agreement
_____________, ____
Dear Sirs:
1. Introductory. Newmont Mining Corporation, a Delaware
corporation (the "Company"), proposes to issue and sell from time to time (i)
shares of common stock of the Company (the "Common Shares"), (ii) shares of a
series of preferred stock of the Company (the "Preferred Shares") which may be
convertible into Common Shares, (iii) depositary shares (the "Depositary
Shares") which will represent a fraction of a Preferred Share or (iv) warrants
to purchase Common Shares (the "Warrants") which may be sold separately or
together with Common Shares. The Common Shares, the Preferred Shares, the
Depositary Shares and the Warrants are hereinafter referred to as the
"Securities". The Securities are registered under the registration statement
referred to in Section 2(a).
Particular issuances or series of the Securities will be sold
pursuant to a Terms Agreement referred to in Section 3 in the form of Annex I
attached hereto, for resale in accordance with the terms of offering determined
at the time of sale. Under such Terms Agreement, subject to the terms and
conditions hereof, the Company will agree to issue and sell, and the firm or
firms specified therein (the "Underwriters") will agree to purchase, the amount
of Securities specified therein (the "Firm Securities"). In such Terms
Agreement, the Company also may grant to such Underwriters, subject to the
terms and conditions set forth therein, an option to purchase additional
Securities in an amount not to exceed the amount specified in such Terms
Agreement (such additional Securities are hereinafter referred to as the
"Option Securities"). The Firm Securities and the Option Securities are
hereinafter collectively referred to as the "Offered Securities".
The representative or representatives of the Underwriters, if
any, specified in a Terms Agreement referred to in Section 3 are hereinafter
referred to as the "Representatives"; provided, however, that if the Terms
Agreement does not specify any representative of the Underwriters, the term
"Representatives", as used in this Agreement (other than in Section 5(c) and
the second sentence of Section 3) shall mean the Underwriters.
Each Common Share issued pursuant to a Terms Agreement
referred to in Section 3, upon conversion of Preferred Shares or Depositary
Shares or upon exercise of a Warrant will include one preferred share purchase
right (the "Junior Preferred Rights") entitling the holder thereof to purchase,
under certain circumstances, one five-hundredth of a share of Series A Junior
Participating Preferred Stock, par value $5.00 per share, of the Company,
subject to adjustment. The Junior Preferred Rights are to be issued pursuant to
a Rights Agreement dated as of August 30, 1990, as amended, between the Company
and Chemical Bank, as rights agent.
<PAGE> 2
Preferred Shares issued pursuant to the Terms Agreement
referred to in Section 3 will be issued in accordance with a Certificate of
Designations as specified in such Terms Agreement (the "Certificate of
Designations"). Depositary Shares issued pursuant to the Terms Agreement
referred to in Section 3 will be issued under a Deposit Agreement (the "Deposit
Agreement") between the Company and a bank or trust company selected by the
Company as specified in such Terms Agreement (the "Depositary"). Warrants
issued pursuant to the Terms Agreement referred to in Section 3 will be issued
under a Warrant Agreement (the "Warrant Agreement") between a bank or trust
company selected by the Company as specified in such Terms Agreement (the
"Warrant Agent").
2. Representations and Warranties of the Company. The
Company represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333-____), including a
prospectus relating to the Securities, has been filed with the
Securities and Exchange Commission (the "Commission") and has become
effective. Such registration statement, as amended at the time of any
Terms Agreement referred to in Section 3, is hereinafter referred to
as the "Registration Statement", and the prospectus included in such
Registration Statement, as supplemented as contemplated by Section 3
to reflect the terms of the Offered Securities and the terms of
offering thereof, as first filed with the Commission pursuant to and
in accordance with Rule 424(b) ("Rule 424(b)") of the Rules and
Regulations of the Commission (the "Rules and Regulations") under the
Securities Act of 1933, as amended (the "Act"), including all material
incorporated by reference therein, is hereinafter referred to as the
"Prospectus".
(b) On the effective date of the registration statement
relating to the Securities, such registration statement conformed in
all material respects to the requirements of the Act and the Rules and
Regulations and did not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and on the
date of the Terms Agreement referred to in Section 3, the Registration
Statement and the Prospectus will conform in all material respects to
the requirements of the Act and the Rules and Regulations, and neither
of such documents will include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made)
not misleading, except that the foregoing representations do not apply
to statements in or omissions from any of such documents based upon
written information furnished to the Company by any Underwriter
specifically for use therein.
(c) Each document filed by the Company pursuant to the
Exchange Act which is incorporated by reference in the Prospectus
complied when so filed in all material respects with the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations thereunder, and each document, if any, hereafter filed
and so incorporated by reference in the Prospectus (other than
documents incorporated by reference therein relating solely to
securities other than the Offered Securities) will comply
-2-
<PAGE> 3
when so filed in all material respects with the Exchange Act and the
rules and regulations thereunder.
3. Purchase and Offering of Firm Securities. The
obligation of the Company to issue and sell any Firm Securities, the obligation
of the Underwriters to purchase the Firm Securities, and, if applicable, the
Company's granting to the Underwriters of an option to purchase any Option
Securities, will be set forth in a Terms Agreement (the "Terms Agreement")
which shall be in the form of an executed writing (which may be handwritten),
and may be evidenced by an exchange of telegraphic or any other rapid
transmission device designed to produce a written record of communications
transmitted at the time the Company determines to sell the Firm Securities.
The Terms Agreement will incorporate by reference the provisions of this
Agreement, except as otherwise provided therein, and will specify the
following: the firm or firms which will be Underwriters; the names of any
Representatives; the aggregate amount of the Firm Securities, and, if
applicable, the Option Securities; the terms of any option granted by the
Company to the Underwriters to purchase Option Securities; the amount of Firm
Securities to be purchased by each Underwriter; the initial public offering
price of the Offered Securities; the purchase price to be paid by the
Underwriters; and, if the Offered Securities are Preferred Shares, Depositary
Shares or Warrants, the terms thereof including, but not limited to, in the
case of Preferred Shares (including those represented by Depositary Shares),
the designation thereof, the dividend rate (or method of calculation), the
dates on which dividends will be payable, whether such dividends will be
cumulative or noncumulative and, if cumulative, the dates from which dividends
will commence to cumulate, any redemption or sinking fund provisions, and the
terms of conversion, if any, and, in the case of Depositary Shares, the
fraction of the relevant Preferred Share represented thereby and, in the case
of Warrants, the expiration date, the exercise price and the other terms for
the exercise thereof. The Terms Agreement will also specify the place of
delivery and payment for the Offered Securities and any details of the terms of
offering that should be reflected in the prospectus supplement relating to the
offering of the Offered Securities.
The time and date of delivery and payment of the Firm
Securities will be the time and date specified in the Terms Agreement, or such
other time not later than seven full business days thereafter as the
Representatives and the Company agree as the time for payment and delivery of
the Firm Securities (such time and date, being herein and in the Terms
Agreement referred to as the "Firm Closing Date"). The time and date of
delivery and payment of the Option Securities, if any, will be the time and
date specified by the Underwriters as provided in the Terms Agreement, which
may be the Firm Closing Date, but shall not be more than seven business days
after the exercise of the option nor in any event prior to the Firm Closing
Date (such time and date being herein and in the Terms Agreement referred to as
the "Option Closing Date"). As used herein and in the Terms Agreement, the
term "Closing Date" means, with respect to the Firm Securities, the Firm
Closing Date and, with respect to the Option Securities, the Option Closing
Date.
The obligations of the Underwriters to purchase the Offered
Securities will be several and not joint. It is understood that the
Underwriters propose to offer the Offered Securities for sale as set forth in
the Prospectus. The Offered Securities delivered to the Underwriters on the
Closing Date will be in such denominations and registered in such names as the
Underwriters may request.
-3-
<PAGE> 4
4. Certain Agreements of the Company. The Company
agrees with the several Underwriters that it will furnish to counsel for the
Underwriters, one signed copy of the registration statement relating to the
Securities, including all exhibits, in the form it became effective and of all
amendments thereto and that, in connection with each offering of Offered
Securities:
(a) The Company will file the Prospectus with the
Commission pursuant to and in accordance with Rule 424(b).
(b) During the time when a prospectus relating to the
Offered Securities is required to be delivered under the Act, (i) the
Company will advise the Representatives promptly of any proposal to
amend or supplement the Registration Statement or the Prospectus and
will afford the Representatives a reasonable opportunity to comment on
any such proposed amendment or supplement, and (ii) the Company will
also advise the Representatives promptly of the filing of any such
amendment or supplement and of the institution by the Commission of
any stop order proceedings in respect of the Registration Statement or
of any part thereof and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued and (iii) the Company will advise the
Representatives promptly of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the initiation or
threat of any proceeding for such purpose.
(c) If, at any time when a prospectus relating to the
Offered Securities is required to be delivered under the Act, any
event occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the Company promptly will prepare
and file with the Commission an amendment or supplement which will
correct such statement or omission or an amendment which will effect
such compliance. Neither the Representatives' consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5.
(d) The Company will make generally available to its
security holders as soon as practicable, but in any event not later
than eighteen months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act), an earning
statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the Rules and
Regulations (including, at the option of the Company, Rule 158 under
the Act).
(e) The Company will furnish to the Representatives
copies of the Registration Statement, including all exhibits, any
related prospectus, any related preliminary prospectus supplement and
the Prospectus and during the time when a prospectus relating to the
Offered Securities is required to be delivered under the Act, all
amendments and supplements to such documents (other than those solely
relating to securities other than
-4-
<PAGE> 5
the Offered Securities), in each case as soon as available and in such
quantities as are reasonably requested.
(f) The Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's
counsel and accountants in connection with the registration of the
Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any
preliminary prospectus supplement and the Prospectus and amendments
and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing any
Agreement among Underwriters, this Agreement, any Terms Agreement, any
Certificate of Designations, any Deposit Agreement, any Warrant
Agreement, any Blue Sky Memorandum and any other documents in
connection with the offering, purchase, sale and delivery of the
Offered Securities; (iii) all expenses in connection with the
qualification of the Offered Securities for offering and sale under
state securities laws as provided in Section 4(f), including the
reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky
survey(1); (iv) any fees charged by securities rating services for
rating the Offered Securities; (v) any filing fees incident to any
required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Offered Securities; (vi) the cost
of preparing the Offered Securities and any Common Shares issuable
upon conversion or exercise thereof; (vii) the fees and expenses in
connection with the listing, if any, of the Offered Securities or any
Common Shares issuable upon conversion or exercise thereof; (viii) the
fees and expenses of any transfer agent relating to any Common Shares
or any Preferred Shares; (ix) the fees and expenses of any Depositary
relating to any Depositary Shares; (x) the fees and expenses of any
Warrant Agent relating to any Warrants; and (xi) all other costs and
expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section;
provided, however, that, except as provided in this Section, Section 6
and Section 8 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Offered Securities by them, and any advertising
expenses connected with any offers they may make.
(g) If and to the extent so provided in the Terms
Agreement referred to in Section 3, the Company, for the period
therein provided, will not, directly or indirectly, sell, contract to
sell or otherwise dispose of certain of its securities as specified in
such Terms Agreement.
(h) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as
the Representatives reasonably designate and
- ------------------------------
(1) Include language in italics if warrants are being sold; delete if shares
of Common Stock or Preferred Stock are being sold.
-5-
<PAGE> 6
will continue such qualifications in effect so long as required for
the distribution; provided, however, that in no event shall the
Company be required to qualify as a foreign corporation or as a dealer
in securities or to take any action that would subject it to general
or unlimited service of process in any such jurisdiction.2)
5. Conditions of the Obligations of the Underwriters.
The obligations of the several Underwriters to purchase and pay for the Firm
Securities on the Firm Closing Date and the Option Securities on the Option
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the written
statements of Company officers made pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The Representatives shall have received a letter,
dated the Closing Date, of Arthur Andersen & Co., confirming that they
are independent public accountants within the meaning of the Act and
the applicable published Rules and Regulations thereunder and stating
in effect that:
(i) in their opinion, the financial statements
and schedules audited by them and included in the Prospectus
comply in form in all material respects with the applicable
accounting requirements of the Act and the related published
Rules and Regulations;
(ii) they have read the unaudited financial
statements included in the Prospectus;
(iii) available interim financial statements of the
Company, inquiries of officials of the Company who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that
caused them to believe that:
(A) the unaudited financial statements,
if any, included or incorporated by reference in the
Prospectus do not comply in form in all material
respects with the applicable accounting requirements
of the Act and the related published Rules and
Regulations and the Exchange Act and the related
published rules and regulations thereunder, as
applicable, or are not in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited
financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K
for the most recent fiscal year; or
- ------------------------------
(2) Include paragraph (h) if warrants; delete if Common Stock or Preferred
Stock.
-6-
<PAGE> 7
(B) the unaudited capsule information,
if any, included in the Prospectus does not agree
with the amounts set forth in the unaudited
consolidated financial statements from which it was
derived or was not determined on a basis
substantially consistent with that of the audited
financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K
for the most recent fiscal year; or
(C) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than five days
prior to the Closing Date, there was any material
change in the consolidated capital stock (other than
issuances of capital stock upon exercise of options
and director stock grants) or any material increase
in consolidated long- term debt of the Company and
its subsidiaries or, at the date of the latest
available balance sheet read by such accountants,
there was any material decrease in consolidated net
current assets or net assets, as compared with
amounts shown on the latest balance sheet included or
incorporated by reference in the Prospectus; or
(D) for the period from the date of the
latest income statement included or incorporated by
reference in the Prospectus to the closing date of
the latest available income statement read by such
accountants there were any decreases, as compared
with the corresponding period of the previous year
and with the period of corresponding length ended the
date of the latest income statement included in the
Prospectus, in consolidated sales, net income or in
the ratio of earnings to fixed charges;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(iv) they have carried out specified procedures,
as requested by the Underwriters, for the purpose of comparing
specified dollar amounts (or percentages derived from such
dollar amounts) and other financial information included in
the Prospectus (in each case to the extent that such dollar
amounts, percentages and other financial information are
derived from the general accounting records of the Company and
its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such
records by analysis or computation) with the results obtained
from inquiries, a reading of such general accounting records
and other procedures specified in such letter and have found
such dollar amounts, percentages and other financial
information to be in agreement with such results, except as
otherwise specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included
in the Prospectus for purposes of this subsection.
-7-
<PAGE> 8
(b) The Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and Section
4(a) of this Agreement. No stop order suspending the effectiveness of
the Registration Statement or of any part thereof shall have been
issued and no proceedings for that purpose shall have been instituted
or, to the knowledge of the Company or any Underwriter, shall be
threatened by the Commission.
(c) Subsequent to the execution of the Terms Agreement,
there shall not have occurred (i) any downgrading in the rating of any
senior debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (ii) any suspension or limitation in
trading in securities generally on the New York Stock Exchange or any
setting of minimum prices for trading on such Exchange; (iii) if the
Offered Securities are Common Shares, Preferred Shares which are
convertible into Common Shares (or Depositary Shares evidencing such
Preferred Shares) or Warrants, any suspension in trading in the Common
Shares on the New York Stock Exchange imposed by the New York Stock
Exchange or the Commission; (iv) any general banking moratorium
declared by Federal or New York authorities; or (v) any outbreak or
material escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial
national or international calamity or emergency if, in the reasonable
judgment of a majority in interest of the Underwriters, including any
Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency is so material and adverse so as to
make it impractical or inadvisable to proceed with completion of the
sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion,
dated the Closing Date, of White & Case, counsel for the Company, to
the effect (to the extent applicable to the Offered Securities) that:
(i) The Company has been duly incorporated and is
an existing corporation in good standing under the laws of the
State of Delaware, with corporate power and authority to own
its properties and conduct its business as described in the
Prospectus;
(ii) The shares of capital stock of the Company
outstanding on the Closing Date have been duly authorized, are
validly issued, fully paid and non-assessable, and conform in
all material respects as to legal matters to the description
thereof contained in the Prospectus;
(iii) If the Offered Securities are Common Shares,
the Common Shares have been duly authorized and validly issued
and, when countersigned by the transfer agent therefor, and
sold to the Underwriters against payment therefor pursuant to
this Agreement and the Terms Agreement, will be validly
issued, fully
-8-
<PAGE> 9
paid and non-assessable; and the issuance of such Common
Shares is not subject to the preemptive rights of any
stockholder of the Company;
(iv) If the Offered Securities are Preferred
Shares or Depositary Shares, the Preferred Shares have been
duly authorized and validly issued and, when countersigned by
the transfer agent therefor and, if applicable, when deposited
pursuant to the Deposit Agreement against issuance of
Depositary Shares and when the Preferred Shares or the
Depositary Shares, as the case may be, are sold to the
Underwriters against payment therefor pursuant to this
Agreement and the Terms Agreement, will be validly issued,
fully paid and non-assessable; and the issuance and, if
applicable, deposit of such Preferred Shares is not subject to
the preemptive rights of any stockholder of the Company;
(v) If the Offered Securities are Depositary
Shares, the depositary receipts (the "Depositary Receipts"),
when issued and delivered pursuant to the Deposit Agreement
and this Agreement and the Terms Agreement, will entitle the
holders thereof to the rights specified in such Depositary
Receipts and in the Deposit Agreement;
(vi) If the Offered Securities are Preferred
Shares or Depositary Shares, the Certificate of Designations
of the Company creating the Preferred Shares has been duly
filed with the Secretary of State of Delaware and with all
other offices where such filing is required;
(vii) If the Offered Securities are Depositary
Shares, the Deposit Agreement has been duly authorized,
executed and delivered by the Company, and the Deposit
Agreement constitutes a valid and legally binding obligation
of the Company enforceable in accordance with its terms,
except as the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, or other
similar laws affecting the enforcement of creditors' rights
generally, or by general equitable principles (regardless of
whether the issue of enforceability is considered in a
proceeding in equity or at law);
(viii) If the Offered Securities are Preferred
Shares that are convertible into Common Shares, or Depositary
Shares evidencing fractions of such Preferred Shares, the
Common Shares have been duly authorized and reserved for
issuance by the Company upon conversion of the Preferred
Shares, and when so issued and countersigned by the transfer
agent therefor, will be validly issued, fully paid and
non-assessable; and the issuance of such Common Shares will
not be subject to the preemptive rights of any stockholder of
the Company;
(ix) If the Offered Securities are Warrants, the
Warrants have been duly authorized, executed and delivered by
the Company and, when countersigned by the Warrant Agent and
sold to the Underwriters against payment therefor pursuant to
this Agreement and the Terms Agreement, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms,
-9-
<PAGE> 10
except as the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, or other
similar laws affecting the enforcement of creditor's rights
generally, or by general equitable principles (regardless of
whether the issue of enforceability is considered in a
proceeding in equity or at law);
(x) If the Offered Securities are Warrants, the
Warrant Agreement has been duly authorized, executed and
delivered by the Company, and the Warrant Agreement
constitutes a valid and legally binding obligation of the
Company enforceable in accordance with its terms, except as
the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights generally, or
by general equitable principles (regardless of whether the
issue of enforceability is considered in a proceeding in
equity or at law);
(xi) If the Offered Securities are Warrants, the
Common Shares have been duly authorized and reserved for
issuance by the Company upon exercise of the Offered
Securities, and when so issued and countersigned by the
transfer agent therefor, will be validly issued, fully paid
and non- assessable; and the issuance of such Common Shares
will not be subject to the pre-emptive rights of any
stockholder of the Company;
(xii) The Offered Securities conform in all
material respects to the description thereof contained in the
Prospectus;
(xiii) No consent, approval, authorization or order
of, or filing with, any New York State or Federal governmental
agency or body or any New York State or Federal court having
jurisdiction over the Company or any of its material
properties is required to be obtained or made by the Company
for the consummation of the transactions contemplated by the
Terms Agreement (including the provisions of this Agreement),
any Warrant Agreement and any Deposit Agreement, except such
as have been obtained and made under the Act and such as may
be required under state securities or Blue Sky laws (as to
which such counsel need express no opinion);
(xiv) The execution, delivery and performance of
the Terms Agreement (including the provisions of this
Agreement), any Deposit Agreement and any Warrant Agreement
and the issuance and sale of the Offered Securities and
compliance with the terms and provisions thereof will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, the Restated
Certificate of Incorporation or By-Laws of the Company or any
statute, rule, regulation or order applicable to the Company
or any of its subsidiaries of which such counsel is aware of
any federal or New York State governmental agency or body or
court having jurisdiction over the Company or any of its
material properties (other than those that may be required
under the Act and under applicable state securities or Blue
Sky laws as to which such counsel need express no opinion) and
the Company has full corporate power and authority to
authorize,
-10-
<PAGE> 11
issue and sell the Offered Securities as contemplated by the
Terms Agreement (including the provisions of this Agreement);
(xv) The registration statement relating to the
Securities, as of its effective date, the Registration
Statement and the Prospectus, as of the date of the Terms
Agreement, and any amendment or supplement thereto, as of its
date, appeared on their face to comply as to form in all
material respects with the requirements of the Act and the
Rules and Regulations thereunder; nothing has come to such
counsel's attention which causes it to believe that such
registration statement, as of its effective date, the
Registration Statement or the Prospectus, as of the date of
the Terms Agreement, or any such amendment or supplement, as
of its date, contained any untrue statement of a material fact
or omitted to state any material fact required to be stated
therein or necessary to make the statements therein (in the
case of the Prospectus, in light of the circumstances under
which they were made) not misleading; it being understood that
such counsel need express no opinion as to the financial
statements and schedules or other financial or statistical
data contained in any of the above-mentioned documents; and
(xvi) The Terms Agreement (including the provisions
of this Agreement) has been duly authorized, executed and
delivered by the Company.
(e) The Representatives shall have received an opinion,
dated the Closing Date, from Joy E. Hansen, Esq., Vice President and
General Counsel of the Company, to the effect that:
(i) The Company and Newmont Gold Company have
been duly incorporated and are existing corporations in good
standing in their state of incorporation and have been duly
qualified to do business and are in good standing as foreign
corporations in all jurisdictions in which their respective
ownership of property or the conduct of their respective
businesses requires such qualification (except where the
failure to so qualify would not have a material adverse effect
upon the Company and its subsidiaries taken as a whole), and
have all power and authority necessary to own their respective
properties and conduct the businesses in which they are
engaged as described in the Prospectus;
(ii) The execution, delivery and performance of
the Terms Agreement (including the provisions of this
Agreement), any Warrant Agreement and any Deposit Agreement
and the issuance and sale of the Offered Securities and
compliance with the terms and provisions thereof will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under any order, rule
or regulation applicable to the Company or any of its
subsidiaries of which such counsel is aware of any court or
governmental agency or body having jurisdiction over the
Company or any of its material properties or, any material
agreement or instrument to which the Company or any material
subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of
-11-
<PAGE> 12
the properties of the Company or any such subsidiary is
subject, or the Restated Certificate of Incorporation or
By-Laws of the Company or any such subsidiary;
(iii) Such counsel is not aware of any consent,
approval, authorization or order of, or filing with, any
governmental agency or body or any court having jurisdiction
over the Company or any of its material properties that is
required to be obtained or made by the Company for the
consummation of the transactions contemplated by the Terms
Agreement (including the provisions of this Agreement), any
Warrant Agreement and any Deposit Agreement, except such as
may be required under the Act and under state securities or
Blue Sky laws (as to which such counsel need express no
opinion);
(iv) The documents incorporated by reference in
the Prospectus (other than the financial statements and
related schedules and other financial and statistical data
contained therein, as to which such counsel needs express no
opinion), when they were filed with the Commission complied as
to form in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission
thereunder; and nothing has come to such counsel's attention
which causes it to believe that any of such documents, when
such documents were so filed contained an untrue statement of
a material fact and omitted to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made when such documents
were so filed, not misleading;
(v) Nothing has come to such counsel's attention
which causes it to believe that the registration statement
relating to the Securities, as of its effective date, the
Registration Statement or the Prospectus, as of the date of
the Terms Agreement, or any such amendment or supplement, as
of its date, contained any untrue statement of a material fact
or omitted to state any material fact required to be stated
therein or necessary to make the statements therein (in the
case of the Prospectus, in light of the circumstances under
which they were made) not misleading; it being understood that
such counsel need express no opinion as to the financial
statements and schedules or other financial or statistical
data contained in any of the above-mentioned documents; and
(vi) The statements contained in the Company's
Annual Reports on Form 10-K under the heading "Item 3. Legal
Proceedings", and the statements contained in the Company's
Quarterly Reports on Form 10-Q under the heading "Item 1.
Legal Proceedings", in each case, which are incorporated or
deemed to be incorporated by reference in the Prospectus,
insofar as such statements constitute a summary of the legal
documents, matters or proceedings referred to therein, fairly
present the information called for with respect to such legal
documents, matters and proceedings.
(f) The Representatives shall have received from counsel
for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the incorporation of the
-12-
<PAGE> 13
Company, the validity of the Offered Securities, the Registration
Statement, the Prospectus and other related matters as they may
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass
upon such matters.
(g) The Representatives shall have received a
certificate, dated the Closing Date, of the Chairman of the Board of
Directors, the President and Chief Executive Officer, the Executive
Vice President, any Senior Vice President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to their knowledge, shall state that the representations and
warranties of the Company in this Agreement are true and correct at
and as of the Closing Date, that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, that no stop
order suspending the effectiveness of the Registration Statement or of
any part thereof has been issued and no proceedings for that purpose
have been instituted by the Commission and that, subsequent to the
date of the most recent financial statements in the Prospectus, there
has been no material adverse change in the financial position or
results of operation of the Company and its subsidiaries taken as a
whole except as set forth in or contemplated by the Prospectus or as
described in such certificate.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as they reasonably request.
6. Indemnification and Contribution. (a) The Company
will indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter specifically for use therein; and provided,
further, that the Company shall not be liable to any Underwriter under the
indemnity agreement in this subsection (a) with respect to any preliminary
prospectus or preliminary prospectus supplement to the extent that any such
loss, claim, damage or liability of such Underwriter results from the fact that
such Underwriter sold designated securities to a person to whom there was not
sent or given, at or prior to the written confirmation of such sale, a copy of
the Prospectus as then amended or supplemented in any case where such delivery
is required by the Act if the Company has previously furnished copies thereof
to such Underwriter and the loss, claim, damage or liability results from an
untrue statement or omission
-13-
<PAGE> 14
of a material fact contained in the preliminary prospectus which was corrected
in the Prospectus (as then amended, supplemented or modified).
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses
are incurred.
(c) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the indemnifying
party of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under subsection (a) or (b) above. In
case any such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein, and to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement.
(d) If the indemnification provided for in this Section
is unavailable (other than as a result of the provisos contained in subsection
(a)) or insufficient to hold harmless an indemnified party under subsection (a)
or (b) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to in subsection (a) or
(b) above in such proportion as is appropriate to reflect the relative fault of
the Company on the one hand and of the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations,
including relative benefit. The relative fault shall be determined by
reference to, among other things, whether
-14-
<PAGE> 15
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or any other method of allocation which does not take
account of the equitable considerations referred to above in this subsection
(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section
shall be in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company, to each officer of the
Company who has signed the Registration Statement and to each person, if any,
who controls the Company within the meaning of the Act.
7. Default of Underwriters. (a) If any Underwriter
shall default in its obligation to purchase the Offered Securities which it has
agreed to purchase under the Terms Agreement relating to such Offered
Securities, the Representatives may in their discretion arrange for themselves
or another party or other parties to purchase such Offered Securities on the
terms contained therein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such Offered
Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Offered Securities on such
terms. In the event that, within the respective prescribed periods, the
Representatives notify the Company that they have so arranged for the purchase
of such Offered Securities, or the Company notifies the Representatives that it
has so arranged for the purchase of such Offered Securities, the
Representatives or the Company shall have the right to postpone the Closing
Date for the Offered Securities for a period of not more than seven days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Company agrees to file
-15-
<PAGE> 16
promptly any amendments or supplements to the Registration Statement or the
Prospectus which in the reasonable opinion of the Representatives may thereby
be made necessary. The term "Underwriter" as used in this Agreement shall
include any person substituted under this section with like effect as if such
person had originally been a party to the Terms Agreement with respect to such
Offered Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Offered Securities of a defaulting Underwriter or Underwriters
by the Representatives and the Company as provided in subsection (a) above, the
aggregate number of such Offered Securities which remains unpurchased does not
exceed one-tenth of the aggregate number of the Offered Securities, then the
Company shall have the right to require each non-defaulting Underwriter to
purchase on the applicable Closing Date the number of Offered Securities which
such Underwriter agreed to purchase under the Terms Agreement relating to such
Offered Securities and, in addition, to require each non-defaulting Underwriter
to purchase its pro rata share (based on the amount of Securities which such
Underwriter agreed to purchase under such Terms Agreement) of the Offered
Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Offered Securities of a defaulting Underwriter or Underwriters
by the Representatives and the Company as provided in subsection (a) above, the
aggregate amount of Offered Securities which remains unpurchased exceeds
one-tenth of the aggregate amount of the Offered Securities, as referred to in
subsection (b) above, or if the Company shall not exercise the right described
in subsection (b) above to require non-defaulting Underwriters to purchase
Offered Securities of a defaulting Underwriter or Underwriters, then the Terms
Agreement relating to such Offered Securities (or, with respect to the Option
Closing Date, the obligations of the Underwriters to purchase, and of the
Company to sell, the Option Securities) shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company, except
for the expenses to be borne by the Company and the Underwriters as provided in
Section 4(g) and the indemnity and contribution agreements in Section 6; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
8. Survival of Certain Representations and Obligations.
The respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results
thereof, made by or on behalf of any Underwriter, the Company or any of their
respective representatives, officers or directors or any controlling person and
will survive delivery of and payment for the Offered Securities. If the Terms
Agreement is terminated pursuant to Section 7 or if for any reason the purchase
of the Offered Securities by the Underwriters under the Terms Agreement is not
consummated, the Company shall remain responsible for the expenses to be paid
or reimbursed by it pursuant to Section 4(g) and the respective obligations of
the Company and the Underwriters pursuant to Section 6 shall remain in effect.
If the purchase of the Offered Securities by the Underwriters is not
consummated for any reason, other than solely because of the termination of the
Terms Agreement pursuant to Section 7 or the occurrence of any event
-16-
<PAGE> 17
specified in clause (ii), (iv) or (v) of Section 5(c), the Company will
reimburse the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities, but the Company shall be under no further
liability to any Underwriter except as provided in Section 6.
9. Notices. All statements, requests, notices and
agreements hereunder shall be in writing and if to the Underwriters shall be
sufficient in all respects, if delivered or sent by first class mail, telex, or
facsimile transmission (confirmed in writing by overnight courier sent on the
day of such facsimile transmission) to the address of the Representatives as
set forth in the Terms Agreement; and if to the Company shall be sufficient in
all respects if delivered or sent by first class mail, telex, or facsimile
transmission (confirmed in writing by overnight courier sent on the day of such
facsimile transmission) to the address of the Company set forth in the
Registration Statement, Attention: Secretary.
10. Successors. This Agreement will inure to the benefit
of and be binding upon the Company and such Underwriters as are identified in
Terms Agreements and their respective successors and the officers and directors
and controlling persons referred to in Section 6, and no other person will
acquire or have any right or obligation hereunder or by virtue of this
Agreement. No purchaser of any of the Offered Securities from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
11. Representatives. In all dealings under any Terms
Agreement and hereunder, the Representatives, if any, shall act on behalf of
each of the Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
underwriter made or given by the Representatives.
12. Time of Essence. Time shall be of the essence of
each Terms Agreement. As used herein the term "business day" shall mean any
day when the Commission's office in Washington, D.C. is open for business.
13. GOVERNING LAW. THIS AGREEMENT AND EACH TERMS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
14. Counterparts. This Agreement and each Terms
Agreement may be executed by any one or more of the parties hereto and thereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such respective counterparts shall together constitute one and the same
instrument.
-17-
<PAGE> 18
If the foregoing is in accordance with your understanding,
please sign and return three counterparts hereof.
Very truly yours,
NEWMONT MINING CORPORATION
By
------------------------
Name:
Title:
Accepted as of the date hereof:
[Names of Underwriters]
By: [Representatives]
By:
-----------------------------
Name:
Title:
On behalf of each of the Underwriters
-18-
<PAGE> 19
SCHEDULE I
NEWMONT MINING CORPORATION
EQUITY SECURITIES
TERMS AGREEMENT
_________, ____
[Names and Addresses of
Representatives]
Dear Sirs:
Newmont Mining Corporation, a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated _________ __, ____ (the "Underwriting
Agreement"), between the Company on the one hand and __________________, on the
other hand, to issue and sell to the Underwriters named in Schedule I hereto
(the "Underwriters") the securities specified in Schedule II hereto (the
"Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Terms
Agreement, except that, if this Terms Agreement and the Underwriting Agreement
are dated different dates, each representation and warranty with respect to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation and warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined) and also a representation and
warranty as of the date of this Terms Agreement in relation to the Prospectus
as amended or supplemented relating to the Securities which are the subject of
the Terms Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall be
deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives
designated to act on behalf of each of the Underwriters of Securities are set
forth in Schedule II hereto.
Subject to the terms and conditions set forth herein and in
the Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at a purchase price to the Underwriters set forth in Schedule II
hereto, the amount of Firm Securities set forth opposite the name of such
Underwriter in Schedule I hereto.
[Subject to the terms and conditions set forth herein and in
the Terms Agreement, the Company hereby grants an option to the Underwriters,
severally and not jointly, to purchase in the aggregate up to the number of
Option Securities set forth on Schedule II at the same purchase
<PAGE> 20
Schedule I
Page 2
price as shall be applicable to the Firm Securities. The option hereby granted
will expire __ days after the date hereof and may be exercised, in whole or in
part at one time, only for the purpose of covering over-allotments that may be
made in connection with the offering and distribution of the Firm Securities.
Such option may be exercised upon written notice by you to the Company setting
forth the number of Option Securities as to which the several Underwriters are
exercising the option and the Option Closing Date. If the option is exercised
as to all or any portion of the Option Securities, the Option Securities as to
which the option is exercised shall be purchased by each Underwriter, severally
and not jointly, in the proportion that the number of Firm Securities set forth
opposite the name of such Underwriter in Schedule I bears to the total number
of Firm Securities, subject to such adjustments as you, in your discretion,
shall make to eliminate any sales or purchases of fractional Offered
Securities. No Option Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered.
The right to purchase the Option Securities or any portion thereof may be
surrendered and terminated at any time before the exercise thereof upon written
notice by the Representatives to the Company.]
If the foregoing is in accordance with your understanding,
please sign and return to us _______ counterparts hereof, and upon acceptance
hereof by you, on behalf of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of the
Underwriters and the Company. [It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of
which shall be supplied to the Company upon request.]
Very truly yours,
NEWMONT MINING CORPORATION
By
-----------------------------------
Name:
Title:
Accepted as of the date hereof:
By:
-----------------------------------
On behalf of each of the Underwriters
<PAGE> 21
SCHEDULE I
<TABLE>
<CAPTION>
Amount of
Firm Securities
Underwriter to be Purchaser
----------- ---------------
<S> <C>
----------------
Total . . . . . . . . . . . . . . . . . . . . . . . . .
================
</TABLE>
<PAGE> 22
SCHEDULE II
TITLE OF SECURITIES:
AGGREGATE NUMBER OF FIRM SECURITIES:
AGGREGATE NUMBER OF OPTION SECURITIES:
PRICE TO PUBLIC:
$___________
PURCHASE PRICE BY UNDERWRITERS:
$___________
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[New York] Clearing House funds
IF THE SECURITIES ARE PREFERRED SHARES OR DEPOSITARY SHARES EVIDENCING
FRACTIONS OF PREFERRED SHARES, THE TERMS OF SUCH PREFERRED SHARES ARE AS
FOLLOWS:
Designation:
Date of Certificate of Designations:
Dividend Rate or Amount:
[$___ per share per annum] [specify other method of
calculation]
[Dividends are noncumulative.] [Dividends are cumulative from
[specify date].]
Dividend Payment Dates:
[months and dates], commencing [date]
Conversion Rights:
[The Securities are not convertible.]
[The Securities will be [subject to mandatory conversion]
[convertible [at the option of the holder thereof] [at the option of the
Company]] into shares of Common Stock of the Company [Describe conversion
provisions, including the conversion price and adjustments thereto.]]
Ranking:
[The Securities will rank senior with respect to the payment
of dividends and the distribution of assets upon liquidation
to any shares of the Company's Series A
<PAGE> 23
Schedule II
Page 2
Junior Participating Preferred Stock and any series of
Preferred Stock which by its terms is expressly made junior to
the Securities. The Securities 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.]
[The Securities will rank on a parity with respect to the
payment of dividends and the distribution of assets upon liquidation to any
shares of the Company's Series A Junior Participating Preferred Stock and any
series of Preferred Stock which by its terms is expressly made junior to any
other series of Preferred Stock. The Securities will rank junior with respect
to the payment of dividends and the distribution of assets upon liquidation
with any other series of Preferred Stock.]
Liquidation Rights:
In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company, the holders of the Securities will be
entitled to receive out of the assets of the Company available for distribution
to stockholders $______ 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 Securities as to the distribution of
assets upon liquidation, dissolution or winding up of the affairs of the
Company.
Redemption Provisions:
[No provisions for redemption]
[The Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company
[on or after _________, _________ at the following redemption
prices: If [redeemed on or before _________, $___, and if]
redeemed during the 12-month period beginning ___________,
Year Redemption Price
and thereafter at $___ per share, together in each case with
accrued and unpaid dividends to the redemption date]
[on any dividend payment date falling on or after
____________, ___________, at the election of the Company, at
a redemption price equal to the $___, plus accrued and unpaid
dividends to the date of redemption].
[Other possible redemption provisions, such as mandatory
redemption upon occurrence of certain events or redemption for
changes in tax law]
Sinking Fund Provisions:
[No sinking fund provisions]
<PAGE> 24
Schedule II
Page 3
[The Securities are entitled to the benefit of a sinking fund
to retire _____ shares on ______ in each of the years _____
through ____ at $___ per share plus accrued and unpaid
dividends] [, together with [cumulative] [non-cumulative]
redemptions at the option of the Company to retire an
additional _____ shares in the years ____ through ____ at $___
per share plus accrued and unpaid dividends.]
Voting Right Provisions:
[No voting rights except as specified in the Company's
Restated Certificate of Incorporation.]
[In addition to the voting rights specified in the Company's
Restated Certificate of Incorporation, the Securities [specify voting rights].]
IF THE SECURITIES ARE DEPOSITARY SHARES, SPECIFY THE FOLLOWING:
Depositary:
Deposit Agreement:
Deposit Agreement dated as of ________, _____, between the
Company and the Depositary.
Terms of Deposit:
Each Depositary Share will represent ___ of [one] share of the
Preferred Shares described above. [Insert of other relevant terms.]
IF THE SECURITIES ARE WARRANTS, THE TERMS THEREOF ARE AS FOLLOWS:
Warrant Agent:
Warrant Agreement:
Warrant Agreement dated as of ___________, ____, between the
Company and the Warrant Agent.
Exercise Price:
$_____ per share, subject to adjustment as provided in the
Warrant Agreement.
Expiration Date:
Terms of Exercise:
[The Warrants may be exercised at any time [on or after
________] and prior to the close of business on the Expiration Date.]
<PAGE> 25
Schedule II
Page 4
FIRM CLOSING DATE:
[Time and date], ____
CLOSING LOCATION:
BLACK OUT PERIOD:
[None]
[For a period beginning at the time of execution of the Terms
Agreement and ending 90 days thereafter, [the Company will not,
directly or indirectly, offer, sell, contract to sell or otherwise
dispose of Common Shares or securities representing, convertible into
or exchangeable for, or any rights to purchase or acquire, Common
Shares, other than (1) pursuant to its employee stock option and
restricted stock plans or its directors' stock plan, each as in effect
at the time of execution of the Terms Agreement, (2) pursuant
arrangements made with respect to any person who becomes an employee
of the Company, or (3) pursuant to the Junior Preferred Rights] [the
Company will not, directly or indirectly, offer, sell, contract to
sell or otherwise dispose of Preferred Shares, Depositary Shares or
securities representing, convertible into or exchangeable for, or any
rights to purchase or acquire, Preferred Shares or Depositary Shares,
other than pursuant to the Junior Preferred Rights.]]
[Insert terms, if other than as above]
NAMES AND ADDRESSES OF REPRESENTATIVES:
ADDRESS FOR NOTICES, ETC.:
[OTHER TERMS](3)
- ------------------------------
(3) A description of particular tax, accounting or other unusual features of the
Securities should be set forth, or referenced to an attached and
accompanying description, if necessary to the issuer's understanding of the
transaction contemplated. Such a description might appropriately be in the
form in which such features will be described in the Prospectus for the
offering.
<PAGE> 1
EXHIBIT 4.2
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
* * * * *
Newmont Mining Corporation, a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware, DOES
HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of Newmont Mining
Corporation resolutions were duly adopted approving an amendment to the Restated
Certificate of Incorporation of said corporation (the "Amendment") and
authorizing its submission to the stockholders of said corporation for their
approval. The resolution approving the Amendment is as follows:
"RESOLVED, that Article FOURTH of the Restated Certificate of
Incorporation of the Corporation be amended (the "Amendment") to delete
the first paragraph thereof in its entirety and insert the following in
lieu thereof:
FOURTH: The total number of shares of all classes of
stock which the Corporation shall have authority to issue is
255,000,000, of which 5,000,000 shares shall be preferred
stock (hereinafter called "Preferred Stock") of the par value
of $5.00 per share and 250,000,000 shares shall be common
stock (hereinafter called "Common Stock") of the par value of
$1.60 per share."
SECOND: That thereafter, pursuant to a resolution of its Board of
Directors, an annual meeting of the stockholders of said corporation was duly
called and held, upon notice in accordance with Section 222 of the General
Corporation Law of the State of Delaware, at which meeting the necessary number
of shares as required by statute were voted in favor of the Amendment.
<PAGE> 2
THIRD: That said amendment was duly adopted in accordance with
the provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: That this Certificate of Amendment of the Restated Certificate
of Incorporation shall be effective at 3:30 p.m., eastern daylight savings time,
on May 5, 1997.
IN WITNESS WHEREOF, said Newmont Mining Corporation has caused this
certificate to be signed by Wayne W. Murdy, its Executive Vice President, this
5th day of May, 1997.
NEWMONT MINING CORPORATION
By: /s/ Wayne W. Murdy
---------------------
Wayne W. Murdy
Executive Vice President
Attest:
By: /s/ Timothy J. Schmitt
------------------------
Timothy J. Schmitt
Secretary
-2-
<PAGE> 1
EXHIBIT 5
[WHITE & CASE LLP LETTERHEAD]
July 15, 1998
Newmont Mining Corporation
1700 Lincoln Street
Denver, Colorado 80203
Dear Sirs:
We have examined the Registration Statement on Form S-3 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), in the form in which it is to be filed today by Newmont
Mining Corporation, a Delaware corporation ("Newmont"), with the Securities and
Exchange Commission (the "Commission") relating to (i) shares of common stock,
par value $1.60 per share, of Newmont (the "Common Shares"), which include
preferred stock purchase rights (the "Rights") which, prior to the occurrence of
certain events, will not be exercisable or evidenced separately from the Common
Shares, (ii) shares of preferred stock, par value $5.00 per share, of Newmont
(the "Preferred Shares"), which may be convertible into Common Shares, (iii)
depositary shares (the "Depositary Shares") evidenced by depositary receipts
(the "Depositary Receipts") which will represent fractional interests in
Preferred Shares and (iv) warrants to purchase Common Shares (the "Warrants").
The Common Shares, the Preferred Shares, the Depositary Shares and the Warrants
are collectively referred to herein as the "Securities". The Securities are
being registered for offering and sale from time to time pursuant to Rule 415
under the Securities Act. The aggregate public offering price of the Securities
will not exceed $341,225,825.
The Warrants are to be issued pursuant to the terms of a Warrant
Agreement (the "Warrant Agreement"), in the form filed as Exhibit 4.9 to the
Registration Statement, between Newmont and a bank or trust company to be named
by Newmont (the "Warrant Agent"). The Depositary Receipts evidencing Depositary
Shares are to be issued under a Deposit Agreement (the "Deposit Agreement"), in
the form filed as Exhibit 4.8 to the Registration Statement, between Newmont and
a bank or trust company to be named by Newmont (the "Depositary"). The Rights
will be issued pursuant to a
<PAGE> 2
Newmont Mining Corporation
Page 2
Rights Agreement, dated as of August 30, 1990, as amended (the "Preferred Stock
Rights Agreement"), between Newmont and The Chase Manhattan Bank, N.A., as
successor Rights Agent.
Based upon our examination of such documents, certificates, records,
authorizations and proceedings as we have deemed relevant, it is our opinion
that:
1. With respect to the Common Shares, when (a) the issuance of the
Common Shares has been duly authorized by appropriate corporate action, (b) the
certificates for the Common Shares have been duly executed by Newmont,
countersigned by the transfer agent therefor and duly delivered to the
purchasers thereof against payment therefor, (x) the Common Shares will be
validly issued, fully paid and nonassessable and (y) the Rights, if any,
included with the Common Shares will be duly authorized and validly issued.
2. With respect to the Preferred Shares, when (a) the issuance of the
Preferred Shares has been duly authorized by appropriate corporate action, (b)
the Certificate of Designations establishing the terms of the Preferred Shares
has been duly approved by appropriate corporate action, duly executed by Newmont
and filed with the Secretary of State of the State of Delaware, (c) the
certificates for the Preferred Shares have been duly executed by Newmont,
countersigned by the transfer agent therefor and delivered to the purchasers
thereof against payment therefor, and (d) if the Preferred Shares are
convertible into Common Shares, (i) the issuance of such Common Shares has been
duly authorized by appropriate corporate action, (ii) the Preferred Shares are
presented for conversion in accordance with the terms thereof and (iii) the
certificates for such Common Shares have been duly executed by Newmont,
countersigned by the transfer agent therefor and duly delivered upon such
conversion to the persons entitled thereto in accordance with the terms of such
Preferred Shares, (x) the Preferred Shares will be validly issued, fully paid
and nonassessable and (y) if the Preferred Shares are convertible into Common
Shares, the Common Shares issuable upon conversion of the Preferred Shares will
be validly issued, fully paid and nonassessable and the Rights, if any, included
with the Common Shares will be duly authorized and validly issued.
3. With respect to the Depositary Shares, when (a) the Deposit
Agreement pursuant to which the Depositary Receipts are to be issued has been
duly authorized, executed and delivered by Newmont and the Depositary, (b) the
issuance of the Preferred Shares underlying the Depositary Shares has been duly
authorized by appropriate corporate action, (c) the Certificate of Designations
establishing the terms of the Preferred Shares has been duly approved by
appropriate corporate action, duly executed by Newmont and filed with the
Secretary of State of the State of Delaware, (d) the certificates for the
Preferred Shares have been duly executed by Newmont, countersigned by the
transfer agent therefor and deposited pursuant to the Deposit Agreement in
exchange for the Depositary Receipts, (e) the Depositary Receipts have been duly
executed by the Depositary in accordance with the provisions of the Deposit
Agreement and duly delivered to the purchasers thereof against payment therefor,
and (f) if the Preferred Shares are convertible into Common Shares, (i) the
issuance of such Common Shares has been duly authorized by
<PAGE> 3
Newmont Mining Corporation
Page 3
appropriate corporate action, (ii) the Preferred Shares are presented for
conversion in accordance with the terms thereof and (iii) the certificates for
such Common Shares have been duly executed by Newmont, countersigned by the
transfer agent therefor and duly delivered upon such conversion to the persons
entitled thereto in accordance with the terms of such Preferred Shares, (x) the
Depositary Shares will be validly issued and will entitle the holders thereof to
the rights specified in the Depositary Receipts and in the Depositary Agreement;
(y) the Preferred Shares represented by such Depositary Shares will be validly
issued, fully paid and nonassessable; and (z) if the Preferred Shares
represented by such Depositary Shares are convertible into Common Shares, the
Common Shares issuable upon conversion of such Preferred Shares will be validly
issued, fully paid and nonassessable and the Rights, if any, included with the
Common Shares will be duly authorized and validly issued.
4. With respect to the Warrants, when (a) the Warrant Agreement
pursuant to which the Warrants are to be issued has been duly authorized,
executed and delivered by Newmont and the Warrant Agent, (b) the issuance of the
Warrants, and the issuance of the Common Shares issuable upon exercise of the
Warrants, have been duly authorized by appropriate corporate action, (c) the
certificates representing the Warrants have been duly executed by Newmont and
countersigned by the Warrant Agent in accordance with the provisions of the
Warrant Agreement and duly delivered to the purchasers thereof against payment
therefor, (d) the Warrants are duly exercised, and the exercise price therefor
paid, in accordance with the terms of the Warrants and the Warrant Agreement,
and (e) the certificates for the Common Shares issuable upon exercise of the
Warrants have been duly executed by Newmont, countersigned by the transfer agent
therefor and duly delivered to the persons entitled thereto upon such exercise,
(x) the Warrants will be valid and legally binding obligations of Newmont,
enforceable in accordance with their terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether the issue of enforceability is
considered in a proceeding in equity or at law) and (y) the Common Shares issued
upon exercise of the Warrants will be validly issued, fully paid and
nonassessable and the Rights, if any, included with the Common Shares will be
duly authorized and validly issued.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm appearing under the
caption "Validity of Securities" in the Prospectus forming part of the
Registration Statement. In giving this consent, we do not hereby admit that we
are within the category of persons whose consent is required under Section 7 of
the Securities Act or the rules and regulations of the Commission promulgated
thereunder.
Very truly yours,
/s/ White & Case LLP
MSB:JMC
<PAGE> 1
EXHIBIT 12
COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
(Amounts in thousands except ratios)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Year Ended December 31,
Ended -------------------------------------------------------------------------
3/31/98 1997 1996 1995 1994 1993
---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Income before income taxes and
cumulative effect of changes
in accounting principles $ 38,607 $ 60,477 $ 82,652 $ 177,666 $ 115,755 $ 139,014
Adjustments:
Net interest expense (1) 20,492 77,067 58,619 47,099 18,588 24,147
Amortization of capitalized
interest 495 3,221 2,359 2,594 2,299 2,344
Portion of rental expense
representative of interest 356 2,714 3,428 2,834 1,581 1,300
Minority interest of majority-
owned subsidiaries that have
fixed charges 14,282 71,438 6,584 9,864 8,298 16,751
Undistributed income of less-
than-50%-owned entities -- -- (18,359) (7,027) (15,549) (3,526)
---------- ---------- ---------- ---------- ---------- ----------
$ 74,232 $ 214,917 $ 135,283 $ 233,030 $ 130,972 $ 180,030
========== ========== ========== ========== ========== ==========
Fixed Charges and Preferred
Stock Dividends:
Net interest expense (1) $ 20,492 $ 77,067 $ 58,619 $ 47,099 $ 18,588 $ 24,147
Capitalized interest 2,876 15,604 16,571 14,043 19,982 9,014
Preferred stock dividends (2) -- -- -- 13,282 15,813 20,662
Portion of rental expense
representative of interest 356 2,714 3,428 2,834 1,581 1,300
---------- ---------- ---------- ---------- ---------- ----------
$ 23,724 $ 95,385 $ 78,618 $ 77,258 $ 55,964 $ 55,123
========== ========== ========== ========== ========== ==========
Ratio of Earnings to Fixed Charges 3.1 2.3 1.7 3.0 2.3 3.3
========== ========== ========== ========== ========== ==========
</TABLE>
(1) Includes interest expense of majority-owned subsidiaries and
amortization of debt issuance costs.
(2) 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.
<PAGE> 1
EXHIBIT 23.1
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 27, 1998
incorporated by reference in Newmont Mining Corporation's Form 10-K for the year
ended December 31, 1997 and to all references to our Firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
Denver, Colorado
July 13, 1998
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of Newmont Mining
Corporation of our report dated February 1, 1997, except for the fifth paragraph
of Note 1, which is as of March 10, 1997, pertaining to the consolidated
financial statements of Santa Fe Pacific Gold Corporation and Subsidiaries which
appears on page 21 of Newmont Mining Corporation's Annual Report on Form 10-K
for the year ended December 31, 1997. It should be noted, however, that such
financial statements are not included in such Annual Report on Form 10-K. We
also consent to the reference to us under the heading "Experts" in such
Prospectus.
/s/ PRICEWATERHOUSECOOPERS LLP
PricewaterhouseCoopers LLP
Phoenix, Arizona
July 13, 1998
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Joy E. Hansen and Timothy J.
Schmitt, and each of them, his or her true and lawful attorneys-in-fact and
agents, with full power of substitution and revocation, in his or her name and
on his or her behalf, to do any and all acts and things and to execute any and
all instruments which they and each of them may deem necessary or advisable to
enable Newmont Mining Corporation (the "Corporation") to comply with the
Securities Act of 1933, as amended (the "Act"), and any rules, regulations or
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the registration under the Act of shares of common stock, shares
of preferred stock (which may or may not be convertible into shares of common
stock) and/or warrants to purchase shares of common stock and/or preferred
stock, in each case of the Corporation to be offered from time to time by the
Corporation pursuant to Rule 415 under the Act (or any successor rule thereto)
and having an aggregate maximum offering price of up to $450 million, including
the power and authority to sign his or her name in any and all capacities
(including his or her capacity as a Director and/or Officer of the Corporation)
to a Registration Statement on Form S-3 or such other form as may be
appropriate, and to any and all amendments, including post-effective amendments,
to such Registration Statement, and to any and all instruments or documents
filed as part of or in connection with such Registration Statement or any
amendments thereto; and the undersigned hereby ratifies and confirms all that
said attorneys-in-fact and agents, or any of them, shall lawfully do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have subscribed these
presents as of the 10th day of July, 1998.
Signature Title
/s/ Ronald C. Cambre Chairman, President and
- --------------------------- Chief Executive Officer and Director
Ronald C. Cambre (Principal Executive Officer)
/s/ James T. Curry, Jr.
- --------------------------- Director
James T. Curry, Jr.
/s/ Joseph P. Flannery
- --------------------------- Director
Joseph P. Flannery
/s/ Leo I. Higdon, Jr.
- --------------------------- Director
Leo I. Higdon, Jr.
<PAGE> 2
/s/ Thomas A. Holmes
- ----------------------------- Director
Thomas A. Holmes
/s/ George B. Munroe
- ----------------------------- Director
George B. Munroe
/s/ Robin A. Plumbridge
- ----------------------------- Director
Robin A. Plumbridge
/s/ Moeen A. Qureshi
- ----------------------------- Director
Moeen A. Qureshi
/s/ Michael K. Reilly
- ----------------------------- Director
Michael K. Reilly
/s/ Jean Head Sisco
- ----------------------------- Director
Jean Head Sisco
/s/ William I. M. Turner, Jr.
- ----------------------------- Director
William I. M. Turner, Jr.
/s/ Wayne W. Murdy Executive Vice President
- ----------------------------- and Chief Financial Officer
Wayne W. Murdy (Principal Financial Officer)
/s/ Linda K. Wheeler Controller
- ----------------------------- (Principal Accounting Officer)
Linda K. Wheeler
-2-
