Registration No. 333-
As filed with the Securities and Exchange Commission on December 3, 1999
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NEWMONT MINING CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
1041
(Primary Standard Industrial Classification Code Number)
13-1806811
(I.R.S. Employer Identification No.)
1700 Lincoln Street
Denver, Colorado 80203
(303) 863-7414
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
Timothy J. Schmitt, Esq.
Newmont Mining Corporation
1700 Lincoln Street
Denver, Colorado 80203
(303) 863-7414
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Maureen Brundage, Esq.
White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
(212) 819-8200
Approximate date of commencement of proposed sale to the public: From time
to time after this registration statement becomes effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, 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, 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(d)
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. ( )
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
======================================================================================================================
Proposed maximum Proposed maximum
Title of each class of Amount to be offering price aggregate offering Amount of
Securities to be registered registered<F1> per unit<F1> price<F1>[<F4>] registration fee
======================================================================================================================
<S> <C> <C> <C> <C>
Common Stock<F2>
Warrants for Common Stock<F3>
Total.............................. US$50,000,000 100% US$50,000,000 US$13,200
======================================================================================================================
<FN>
<F1> Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457 under the
Securities Act of 1933.
<F2> Subject to note (4) below, there is being registered hereunder an indeterminate number of shares of common stock
of the Newmont Mining Corporation ("Newmont") as may be issued from time to time at indeterminate prices,
including shares issuable upon exercise of warrants.
<F3> Subject to note (4) below, there is being registered hereunder an indeterminate number of warrants of Newmont as
may be issued from time to time at indeterminate prices entitling the holder to purchase shares of common stock
of Newmont.
<F4> In no event will the aggregate offering price of all securities issued from time to time under this registration
statement exceed US$50,000,000.
</FN>
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.
======================================================================================================================
</TABLE>
<PAGE>
PROSPECTUS
NEWMONT MINING CORPORATION
From time to time, we may offer and issue by this prospectus the following
securities to the owners of businesses, properties or assets that we may
acquire:
* our common stock and
* warrants to purchase our common stock.
The specific terms upon which we will issue these securities will be determined
by negotiations with the owners of the businesses, properties or assets that we
acquire.
Our common stock trades on the New York Stock Exchange under the symbol
"NEM."
We will not pay any underwriting discounts or commissions in connection
with issuing securities in acquisitions, although we may pay finder's fees in
specific acquisitions. Any person receiving a finder's fee may be deemed an
underwriter within the meaning of the Securities Act of 1933.
The persons who receive in acquisitions securities pursuant to this
prospectus, including shares issued upon the exercise of warrants, also may,
offer and resell from time to time those securities pursuant to this prospectus,
subject to certain conditions.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of the securities that may be offered by
this prospectus or has determined that this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
This prospectus is dated ______________ .
<PAGE>
TABLE OF CONTENTS
About This Prospectus..........................................................1
Newmont........................................................................1
Acquisition Terms..............................................................1
Description of Newmont Capital Stock...........................................2
Description of Newmont Common Stock............................................2
Description of Newmont Common Stock Warrants...................................6
U.S. Federal Income Tax Considerations as a Real Property Holding
Corporation..................................................................8
Selling Security Holders.......................................................8
Legal Opinion..................................................................8
Experts........................................................................8
Where You Can Find More Information............................................9
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC utilizing a "shelf" registration process. The shelf process allows us to
offer and issue any combination of the securities described in this prospectus
at one or more times up to a total dollar amount of $50 million.
This prospectus provides you with a general description of the securities
we may offer. At the time we offer securities we may provide a prospectus
supplement with specific information about the terms of the securities that we
are offering. The prospectus supplement may also update or change information
contained in this prospectus. You should read this prospectus and any prospectus
supplement together with the additional information described under the heading
WHERE YOU CAN FIND MORE INFORMATION.
NEWMONT
We were incorporated in 1921 under the laws of Delaware. We are engaged,
directly or indirectly through our subsidiaries and affiliates, in the
production of gold, the exploration for gold and the acquisition and development
of gold properties worldwide. We produce gold from operations in Nevada,
California, Peru, Indonesia, Mexico and the Central Asian Republic of
Uzbekistan. In late 1999, we began production from a copper/gold deposit at a
second project in Indonesia.
Our principal executive offices are located at 1700 Lincoln Street, Denver,
Colorado 80203. Our telephone number is (303) 863-7414.
ACQUISITION TERMS
We may offer and issue shares of our common stock and warrants to purchase
shares of common stock from time to time in connection with direct and indirect
acquisitions of other businesses, properties or assets. We will furnish this
prospectus to the security holders or owners of the businesses, properties or
assets we are acquiring in exchange for the shares and warrants we offer by this
prospectus.
We expect that the terms upon which we issue the shares and warrants will
be determined through negotiations with the security holders or principal owners
of the businesses, properties or assets that we are acquiring. We expect that
the value of shares of common stock that we issue in an acquisition will be
reasonably related to the market price for our common stock prevailing at or
near the time we enter into the relevant acquisition agreement or complete the
acquisition.
We will pay all expenses of the offering of shares and warrants by this
prospectus. We will not pay any underwriting discounts or commissions in
connection with the issuance of these securities, although we may pay finder's
fees with respect to specific acquisitions. Any person receiving a finder's fee
may be deemed to be an "underwriter" within the meaning of the Securities Act of
1933.
We will use this prospectus in connection with the issuance of our shares
of common stock and warrants in those acquisitions that would be exempt from
registration except for the possibility of integration with other transactions.
We may also provide a prospectus supplement with specific information about the
terms of the acquisitions and the securities being issued. If an acquisition
would not be exempt from registration, we will furnish those offerees this
prospectus, as amended by a post-effective amendment to the registration
statement on Form S-4 of which this prospectus is a part.
If we complete an acquisition or series of acquisitions since the date of
our most recently audited financial statements that would have a material
financial effect on us, we will file a Current Report on Form 8-K or amendment
to the registration statement in which this prospectus was filed with the SEC
containing the financial and other information about the acquisitions that would
be material to subsequent purchasers of the securities we offer through this
prospectus.
The securities we issue in acquisitions may be subject to restrictions on
resale imposed by Rules 144 and 145 under the Securities Act of 1933. In
addition, we may impose contractual holding period requirements on the persons
acquiring our securities in acquisitions.
DESCRIPTION OF NEWMONT CAPITAL STOCK
As of November 30, 1999, we had 255,000,000 shares of authorized capital
stock. Those shares consisted of:
* 5,000,000 shares of preferred stock, none of which were outstanding
and
* 250,000,000 shares of common stock, of which 167,631,658 shares were
outstanding.
DESCRIPTION OF NEWMONT COMMON STOCK
We have summarized below provisions of our certificate of incorporation and
our stockholders rights agreement. This summary does not contain all of the
provisions that you may want to consider as an investor in our securities. You
may wish to review our certificate of incorporation and stockholders rights
agreement. We have filed copies of our certificate of incorporation and
stockholder rights agreement with the SEC.
Listing
Our common stock is listed on the New York Stock Exchange under the symbol
"NEM" and on the Paris Bourse, the Brussels Stock Exchange and the Swiss Stock
Exchange.
Dividends
The owners of common stock may receive dividends when declared by the board
of directors. Subject to the terms of any outstanding preferred stock, owners of
common stock may not receive dividends until we have satisfied our obligations
to any holders of our preferred stock.
Voting Rights
Each share of common stock is entitled to one vote in the election of
directors and other matters. There is no cumulative voting.
By-Laws
Our board of directors may adopt, amend or repeal our by-laws subject to
Delaware law and our certificate of incorporation. The board's power to change
our by-laws is also subject to the power of stockholders to do the same.
Liquidation Rights
If we liquidate, dissolve or wind-up our business, whether voluntarily or
not, common stockholders will share equally in the distribution of all assets
remaining after we pay creditors and preferred stockholders.
Redemption
Our common stock is not redeemable or convertible.
Anti-Takeover Provisions
Article NINTH of our certificate of incorporation and our stockholder
rights agreement may make it more difficult for corporations, entities or
persons to acquire control of us or to remove management.
Approval of Certain Mergers, Consolidations, Sales and Leases
We are required under Article NINTH of our restated certificate of
incorporation to get the approval of 80% of our stockholders who are entitled to
vote in elections of directors to enter the following types of transactions:
* a merger or consolidation between us and another corporation that
holds 10% or more of our outstanding shares;
* the sale or lease of all or a substantial part of our assets to
another corporation or entity that holds 10% or more of our
outstanding shares or
* any sale or lease to us of assets worth more than $10 million in
exchange for our securities by another corporation or entity that
holds 10% or more of our outstanding shares.
However, Article NINTH does not apply to any transaction if
* our board of directors has approved the transaction before the other
corporation, person or entity has become a holder of 10% or more of
our outstanding shares or
* we or our subsidiaries own a majority of the outstanding voting shares
of the other corporation.
Article NINTH can only be altered or repealed with the approval of 80% of
our stockholders.
Stockholder Rights Plan
Each outstanding share of our common stock carries with it one preferred
share purchase right. The terms of the rights are set forth in a rights
agreement, dated as of August 30, 1990, between us and The Chase Manhattan Bank,
as rights agent.
Currently, the rights are transferred automatically with the transfer of
any outstanding common stock certificates. Under the rights agreement, the
rights will separate from the common stock and be distributed to holders of our
common stock on the earlier of
* ten business days after the date of a public announcement that a
person or group of affiliated or associated persons, has acquired, or
obtained the right to acquire, 15% or more of our outstanding common
stock or
* ten business days after the date of the commencement of a tender offer
or exchange offer that would result in a person or entity owning 15%
or more of our outstanding common stock.
Generally, after distribution, each right allows the holder to purchase
directly from us one five-hundredth of a share of our junior preferred stock.
The purchase price for each fraction is $150, subject to adjustment.
The rights will expire on September 11, 2000, or earlier, if
* we redeemed them or
* a merger or consolidation transaction is completed following a tender
offer or exchange offer in which all holders of our common stock
receive in the merger or consolidation the same form of consideration
and in an amount not less than that paid in the tender offer or
exchange offer.
Until a right is exercised, the holder of a right has no rights as a
stockholder. At any time until the earlier of
* the date of public announcement that a person has acquired 15% or more
of our outstanding common stock and
* the close of business on September 11, 2000
we have the option to redeem all of the rights at a price of $0.01 per right,
subject to adjustment. In some circumstances, we may redeem the rights only with
approval of the directors specified in the rights agreement.
Each one-five hundredth of a share of junior preferred stock carries voting
and dividend rights that are intended to be equivalent to one share of common
stock. These rights would be subject to adjustment in the event of stock
dividends, subdivisions and combinations with respect to our common stock. Under
the rights agreement, we may pay cash instead of issuing certificates for
fractions, other than fractions which are integral multiples of one
five-hundredth of a share.
If a person or entity acquires 15% or more of our outstanding common stock
through a tender or exchange offer without certain approvals of our board of
directors, each holder of a right would have the right to receive common stock,
cash, property, or other securities of ours having a value equal to two times
the purchase price of the right. Instead of requiring payment of the purchase
price upon exercise of the right, we may provide that each right be exchanged
for one share of common stock, cash, property or other securities. Under certain
circumstances as specified in the rights agreement, all rights that are or were
owned by any person or entity who acquired 15% or more of the common stock would
be null and void.
In addition, each holder of a valid right will have the right to receive
upon exercise common stock of an acquiring company having a value equal to two
times the purchase price of the right if
* we are acquired in a merger or other business combination in which we
are not the surviving corporation other than pursuant to certain board
approved tender or exchange offers,
* we are the surviving corporation of a consolidation or merger in which
any part of our outstanding common stock is changed into or exchanged
for stock or other securities of another corporation or cash or any
other property or
* 50% or more of our assets or earning power is sold or transferred.
The purchase price payable and the number of fractions of our junior
preferred stock 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.
Before rights are distributed, we may supplement or amend the rights
agreement without the approval of any common stockholder. From and after the
date the rights are distributed, we may supplement or amend the rights agreement
without the approval of any holders of rights under limited circumstances. The
following terms, however, may not be changed:
* the redemption price,
* the final expiration date,
* the purchase price or
* the number of fractions of junior preferred stock for which a right is
exercisable.
The rights have certain anti-takeover effects. The rights may cause
substantial dilution of ownership interests to a person or group that attempts
to acquire us 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 our board of directors
because the rights are either redeemable or are not exercisable or do not go
into effect under those circumstances.
DESCRIPTION OF NEWMONT COMMON STOCK WARRANTS
We may issue warrants for the purchase of our common stock. The warrants
may be issued by themselves or with shares of common stock. The warrants will be
issued under one or more common stock warrant agreements between us and a bank
or trust company as common stock warrant agent. The common stock warrant agent
will be our agent and will not assume any obligations to any owner of the
warrants. We have summarized below provisions of the form of common stock
warrant agreement. This summary does not contain all of the provisions that you
may want to consider as an investor in our warrants. You may wish to review the
form of warrant agreement. We have filed a copy of the form of warrant agreement
with the SEC.
General
Under the common stock warrant agreement, warrants may be issued in one or
more series. This prospectus and the common stock warrant agreement relating to
any series of warrants will include specific terms about the warrants. These
terms include some of the following:
* the type and number of warrants,
* the amount of related common stock for which the warrant can be
exercised and the price or the manner of determining the price and
currency or other consideration to purchase such common stock,
* the expiration date of each warrant,
* the exercise date of each warrant,
* if applicable, the designation and terms of the securities with which
each warrant can be issued,
* any provision dealing with the date on which the warrants and related
securities will be separately transferable,
* any provision granting a mandatory or an optional redemption
provision,
* the identity of the common stock warrant agent,
* the form of the warrant certificates and
* any other terms of the warrant.
The warrants will be represented by certificates. The warrants may be
exchanged under the terms outlined in the common stock warrant agreement. We
will not charge any service charges for any transfer or exchange of warrant
certificates, but we may require payment for tax or other governmental charges
in connection with the exchange or transfer. Until a common stock warrant is
exercised, a holder will not be entitled to any payments on or have any rights
with respect to the common stock issuable upon exercise of the common stock
warrant.
Exercise of Common Stock Warrants
To exercise warrants, the holder must provide the common stock warrant
agent with the following:
* payment of the exercise price,
* certain information required as described on the reverse side of the
warrant certificates,
* the number of warrants to be exercised and
* an executed and completed warrant certificate.
The common stock warrant agent will issue a new warrant certificate for any
warrants not exercised. The exercise price and the number of shares of common
stock that each warrant can purchase will be subject to adjustment in certain
events, including the issuance of a common stock dividend or a combination,
subdivision or reclassification of common stock. No adjustment will be required
until cumulative adjustments require an adjustment of at least 1%.
From time to time, we may reduce the exercise price. No fractional shares
will be issued upon exercise of warrants, but we will pay the cash value of any
fractional shares otherwise issuable. If we enter into any consolidation,
merger, or sale or conveyance of our property as an entirety, the holder of each
outstanding warrant shall have the right to the kind and amount of shares of
stock, other securities, property or cash receivable by a holder of the number
of shares of common stock into which such warrants were exercisable immediately
prior to the occurrence of the event.
Modification of the Common Stock Warrant Agreement
The common stock warrant agreement will permit us and the common stock
warrant agent, without the consent of the common stock warrant holders, to
supplement or amend the agreement in the following circumstances:
* to cure any ambiguity,
* to correct or supplement any provision which may be defective or
inconsistent with any other provisions or
* to add new provisions regarding certain matters or questions that we
and the common stock warrant agent may deem necessary or desirable and
which do not adversely affect the interests of the common stock
warrant holders.
U.S. FEDERAL INCOME TAX CONSIDERATIONS AS A REAL PROPERTY HOLDING CORPORATION
We are likely a U.S. real property holding corporation within the meaning
of the Internal Revenue Code of 1986 and the related U.S. treasury regulations.
Under certain circumstances, gain recognized on the sale or exchange of our
common stock or warrants by a non-U.S. person who would not ordinarily be
subject to U.S. federal income tax on gains would be subject to tax,
notwithstanding the non-U.S. person's lack of other connections with the United
States. Moreover, the sale proceeds may be subject to U.S. withholding tax.
However, because our common stock is regularly traded on an established
securities market, these taxes would apply to the disposition of our warrants
only if on the date the warrants were acquired by the non-U.S. person they had a
fair market value greater than 5% of the fair market value of the common stock.
The special tax on gain would likewise apply to a disposition of common stock by
a non-U.S. person who beneficially owns, directly or indirectly, more than 5% of
the common stock at any time during the five year period immediately preceding
the disposition of the common stock. Except in certain circumstances, however,
the withholding tax would not apply to a disposition of common stock by a
non-U.S. person.
Each prospective holder of securities is urged to consult his or her own
tax advisors regarding the U.S. federal tax consequences of an investment in our
securities, as well as the tax consequences under any state, local or foreign
tax laws.
SELLING SECURITY HOLDERS
This prospectus may also be used for reoffers and resales by persons who
receive our common stock or warrants in acquisitions or our common stock on
exercise of warrants and who may be entitled to reoffer and resell the common
stock or warrants under circumstances requiring the use of a prospectus.
However, no person will be authorized to use this prospectus for an offer of the
common stock or warrants without first obtaining our consent. We may consent to
the use of this prospectus by selling security holders for a limited period of
time and subject to limitations and conditions, which may be varied by agreement
between us and the selling security holders. A supplement to this prospectus
will set forth information identifying the selling security holders and
disclosing the information about the selling security holders and the securities
to be sold as may then be required by the Securities Act of 1933 and the rules
of the SEC.
LEGAL OPINION
White & Case LLP will issue for us an opinion about the legality of the
offered securities.
EXPERTS
The consolidated financial statements incorporated by reference in this
prospectus have been audited by Arthur Andersen LLP and PricewaterhouseCoopers
LLP, independent public accountants, as indicated in their reports with respect
thereto and are included herein in reliance upon the authority of said firms as
experts in giving said reports.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public from our
web site at http://www.newmont.com and from the SEC's web site at
http://www.sec.gov. You may also read and copy any document we file at the SEC's
public reference rooms in Washington, D.C., New York City and Chicago. Please
call the SEC at 1-800-SEC-0330 for further information on the public reference
rooms.
The SEC allows us to "incorporate by reference" in this prospectus the
information in the documents that we file with it, which means that we can
disclose important information to you by referring you to those documents. The
information incorporated by reference is considered to be a part of this
prospectus, and information in documents that we file later with the SEC will
automatically update and supersede information contained in documents filed
earlier with the SEC or contained in this prospectus. We incorporate by
reference in this prospectus the documents listed below and any future filings
that we may make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the
Securities Exchange Act of 1934 until we sell all of the securities that may be
offered by this prospectus:
* Annual Report on Form 10-K for the year ended December 31, 1998,
* Quarterly Reports on Form 10-Q for the quarters ended March 31, 1999,
June 30, 1999 and September 30, 1999 and
* Current Reports on Form 8-K dated February 5, 1999 and July 12, 1999.
You may request a copy of these documents, at no cost to you, by writing or
telephoning us as follows:
Newmont Mining Corporation
1700 Lincoln Street
Denver, Colorado 80203
Attn: Office of the Secretary
(303) 863-7414
In order to obtain timely delivery of these documents, you should make any
request no later than five business days before you must make your investment
decision.
You should rely only on the information incorporated by reference or
provided in this prospectus or in any post-effective amendment or prospectus
supplement. We have not authorized anyone to provide you with different
information. We are not making an offer of the securities described in this
prospectus in any state where the offer is not permitted. You should not assume
that the information in this prospectus, post-effective amendment or any
prospectus supplement is accurate as of any date other than the date on the
front of those documents.
<PAGE>
II-6
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
authorizes and empowers each Delaware corporation to indemnify its directors,
officers, employees and agents against liabilities incurred in connection with,
and related expenses resulting from, any claim, action or suit brought against
any such person as a result of his or her relationship with the corporation,
provided that such persons acted in good faith and in a manner such person
reasonably believed to be in, and not opposed to, the best interests of the
corporation in connection with the acts or events on which such claim, action or
suit is based. The finding of either civil or criminal liability on the part of
such person in connection with such acts or events is not necessarily
determinative of the question of whether such person has met the required
standard of conduct and is, accordingly, entitled to be indemnified. The
foregoing statements are subject to the detailed provisions of Section 145 of
the General Corporation Law of the State of Delaware.
The By-Laws of Newmont provide that each person who at any time is or shall
have been a director or officer of Newmont, or is or shall have been serving
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise in any capacity at the request of Newmont, and his or her
heirs, executors and administrators, shall be indemnified by Newmont in
accordance with and to the full extent permitted by the General Corporation Law
of the State of Delaware. Article VI of the By-Laws of Newmont facilitates
enforcement of the right of directors and officers to be indemnified by
establishing such right as a contract right pursuant to which the person
entitled thereto may bring suit as if the indemnification provisions of the
By-Laws were set forth in a separate written contract between Newmont and the
director or officer.
Item 21. Exhibits and Financial Statement Schedules.
Exhibit
Number Description of Documents
4.1 Restated Certificate of Incorporation of Newmont Mining Corporation
dated as of July 13, 1987. Incorporated by reference to Exhibit 3 to
Newmont Mining Corporation's Form 10-K for the year ended December 31,
1987.
4.2 Amendment to the Restated Certificate of Incorporation of Newmont
Mining Corporation dated May 5, 1997. Incorporated by reference to
Exhibit 4.2 to Newmont Mining Corporation's Registration Statement on
Form S-3 (Registration No. 333-59141).
4.3 By-Laws of Newmont Mining Corporation as amended through September 15,
1999. Incorporated by reference to Exhibit 3 to Newmont Mining
Corporation's Form 10-Q for the quarter ended September 30, 1999.
4.4 Form of Common Stock Warrant Agreement (including form of Warrant).
Incorporated by reference to Exhibit 4.15 to Newmont Mining
Corporation's Registration Statement on Form S-3 (Registration No.
333-54249).
5 Opinion of White & Case LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of White & Case LLP (included in Exhibit 5).
24.1 Power of Attorney of certain officers and directors of Newmont Mining
Corporation.
Item 22. Undertakings.
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment or prospectus supplement to this
registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof;
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering; and
(4) that, for purposes of determining any liability under the
Securities Act of 1933, each filing of Registrant's annual report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(5) to respond to requests for information that is incorporated by
reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this
Form, within one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt means.
This includes information contained in documents filed subsequent to the
effective date of the registration statement through the date of responding
to the request.
(6) to supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved therein,
that was not the subject of and included in the registration statement when
it became effective.
(7) that prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this registration
statement, by any person or party who is deemed to be an underwriter within
the meaning of Rule 145(c), the issuer undertakes that such reoffering
prospectus will contain the information called for by the applicable
registration form with respect to reofferings by persons who may be deemed
underwriters, in addition to the information called for by the other Items
of the applicable form.
(8) that every prospectus (i) that is filed pursuant to paragraph (7)
immediately preceding, or (ii) that purports to meet the requirements of
Section 10(a)(3) of the Securities Act of 1933 and is used in connection
with an offering of securities subject to Rule 415, will be filed as a part
of an amendment to the registration statement and will not be used until
such amendment is effective, and that, for purposes of determining any
liability under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant 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 3rd day of December, 1999.
NEWMONT MINING CORPORATION
By/s/ Timothy J Schmitt
----------------------------
Timothy J. Schmitt
Vice President and Secretary
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
*
- ------------------------
Ronald C. Cambre Chairman, Chief Executive December 3, 1999
Officer and Director
(Principal Executive Officer)
*
- ------------------------
James T. Curry, Jr. Director December 3, 1999
*
- ------------------------
Joseph P. Flannery Director December 3, 1999
*
- ------------------------
Leo I. Higdon, Jr. Director December 3, 1999
*
- ------------------------
Robert J. Miller Director December 3, 1999
*
- ------------------------
Wayne W. Murdy President and Director December 3, 1999
*
- ------------------------
Robin A. Plumbridge Director December 3, 1999
*
- ------------------------
Moeen A. Qureshi Director December 3, 1999
*
- ------------------------
Michael K. Reilly Director December 3, 1999
*
- ------------------------
James V. Taranik Director December 3, 1999
*
- ------------------------
William I.M. Turner, Jr. Director December 3, 1999
*
- ------------------------
Bruce D. Hansen Senior Vice President and December 3, 1999
Chief Financial Officer
(Principal Financial Officer)
*
- ------------------------
Linda K. Wheeler Vice President and Controller December 3, 1999
(Principal Accounting Officer)
*By /s/ Timothy J Schmitt
-----------------------
Timothy J. Schmitt as
Attorney-in-fact
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description of Documents
4.1 Restated Certificate of Incorporation of Newmont Mining Corporation
dated as of July 13, 1987. Incorporated by reference to Exhibit 3 to
Newmont Mining Corporation's Form 10-K for the year ended December 31,
1987.
4.2 Amendment to the Restated Certificate of Incorporation of Newmont
Mining Corporation dated May 5, 1997. Incorporated by reference to
Exhibit 4.2 to Newmont Mining Corporation's Registration Statement on
Form S-3 (Registration No. 333-59141).
4.3 By-Laws of Newmont Mining Corporation as amended through September 15,
1999. Incorporated by reference to Exhibit 3 to Newmont Mining
Corporation's Form 10-Q for the quarter ended September 30, 1999.
4.4 Form of Common Stock Warrant Agreement (including form of Warrant).
Incorporated by reference to Exhibit 4.15 to Newmont Mining
Corporation's Registration Statement on Form S-3 (Registration No.
333-54249).
5 Opinion of White & Case LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of White & Case LLP (included in Exhibit 5).
24.1 Power of Attorney of certain officers and directors of Newmont Mining
Corporation.
Exhibit 5
December 3, 1999
Newmont Mining Corporation
1700 Lincoln Street
Denver, Colorado 80203
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-4 (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 Mining"), with the Securities and Exchange
Commission (the "Commission") relating to (i) shares of common stock, par value
$1.60 per share, of Newmont Mining (the "Common Shares"), and (ii) warrants to
purchase Common Shares (the "Common Stock Warrants"). The Common Shares and the
Common Stock Warrants are collectively referred to herein as the "Securities".
The Securities are being registered for issuance from time to time pursuant to
Rule 415 under the Securities Act in connection with acquisitions by Newmont
Mining of businesses, properties or other assets. The aggregate public offering
price of the Securities will not exceed $50,000,000. The Common Stock Warrants
are to be issued pursuant to the terms of a Warrant Agreement (the "Common Stock
Warrant Agreement"), in the form filed as Exhibit 4.4 to the Registration
Statement, between Newmont Mining and a bank or trust company to be named by
Newmont Mining (the "Common Stock Warrant 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 (i) the issuance of the Common
Shares has been duly authorized by appropriate corporate action and (ii) the
certificates for the Common Shares have been duly executed by Newmont Mining,
countersigned by the transfer agent therefor and duly delivered to the
recipients in exchange for their transfer of the relevant businesses, assets or
properties to Newmont Mining, the Common Shares will be validly issued, fully
paid and nonassessable.
2. With respect to the Common Stock Warrants, when (i) the Common Stock
Warrant Agreement pursuant to which the Common Stock Warrants are to be issued
has been duly authorized, executed and delivered by Newmont Mining and the
Common Stock Warrant Agent, (ii) the issuance of the Common Stock Warrants, and
the issuance of the Common Shares issuable upon exercise of the Common Stock
Warrants, have been duly authorized by appropriate corporate action, (iii) the
certificates representing the Common Stock Warrants have been duly executed by
Newmont Mining and countersigned by the Common Stock Warrant Agent in accordance
with the provisions of the Common Stock Warrant Agreement and duly delivered to
the recipients thereof in exchange for their transfer of the relevant
businesses, assets or properties to Newmont Mining, (iv) the Common Stock
Warrants are duly exercised, and the exercise price therefor paid, in accordance
with the terms of the Common Stock Warrants and the Common Stock Warrant
Agreement, and (v) the certificates for the Common Shares issuable upon exercise
of the Common Stock Warrants have been duly executed by Newmont Mining,
countersigned by the transfer agent therefor and duly delivered to the persons
entitled thereto upon such exercise, (x) the Common Stock Warrants will be valid
and legally binding obligations of Newmont Mining, 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
Common Stock Warrants will be validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to our firm appearing under the caption "Legal
Opinion" 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
---------------------
White & Case LLP
MSB:ESK:PGM
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, 1999
incorporated by reference in Newmont Mining Corporation's Form 10-K for the year
ended December 31, 1998 and to all references to our Firm included in this
registration statement.
/s/Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Denver, Colorado,
December 2, 1999
Exhibit 23.2
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-4 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 appearing in Newmont Mining Corporation's
Annual Report on Form 10-K for the year ended December 31, 1998. 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 Registration Statement.
PricewaterhouseCoopers LLP
Phoenix, Arizona
December 2, 1999
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of Joy E. Hansen and Timothy J. Schmitt his
or her true and lawful attorney-in-fact and agent, 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 said
attorney-in-fact and agent 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 common stock, and warrants to acquire common
stock, of the Corporation, including 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-4 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 attorney-in-fact and agent shall lawfully do
or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned have subscribed these presents as of
the 17th day of November, 1999.
Signature Title
/s/Ronald C. Cambre Chairman and Chief Executive
- ----------------------------- Officer and Director
Ronald C. Cambre (Principal Executive Officer)
/s/James T. Curry Director
- -----------------------------
James T. Curry, Jr.
/s/ Joseph P. Flannery Director
- -----------------------------
Joseph P. Flannery
/s/ Leo I. Higdon, Jr. Director
- -----------------------------
Leo I. Higdon, Jr.
/s/ Robert J. Miller Director
- -----------------------------
Robert J. Miller
/s/ Wayne W. Murdy President and Director
- -----------------------------
Wayne W. Murdy
/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/ James V. Taranik Director
- -----------------------------
James V. Taranik
/s/ William I. M. Turner, Jr. Director
- -----------------------------
William I. M. Turner, Jr.
/s/ Bruce D. Hansen Senior Vice President and Chief
- ----------------------------- Financial Officer (Principal
Bruce D. Hansen Financial Officer)
/s/ Linda K. Wheeler Vice President and Controller
- ----------------------------- (Principal Accounting Officer)
Linda K. Wheeler
