Registration No. 333-48908
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As filed with the Securities and Exchange Commission on December 12, 2000
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NEWMONT MINING CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of
incorporation or organization)
13-2526632
(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 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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<CAPTION>
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 (1) price (1) registration fee(2)
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<S> <C> <C>
Common Stock, $1.60 par value 2,712,049 12.9375 US$35,087,133.94 US$9,263
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act of 1933, as amended.
(2) A filing fee of $10,560 was paid on October 30, 2000 based on a proposed
maximum offering price per unit of $14.749. The correct proposed maximum
offering price per unit as calculated pursuant to Rule 457 under the
Securities Act of 1933, as amended, is $12.9375.
The Registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
NEWMONT MINING CORPORATION
2,712,049 Shares of common stock
The holders of shares of common stock of Newmont named in this
prospectus may offer and sell by this prospectus up to 2,712,049 shares from
time to time. Newmont Mining is not offering or selling any of the shares and
will not receive any of the proceeds from any sale by the selling holders.
Our common stock trades on the New York Stock Exchange under the symbol "NEM".
SEE "RISK FACTORS" BEGINNING ON PAGE 3 TO READ ABOUT FACTORS YOU SHOULD CONSIDER
BEFORE BUYING OUR COMMON STOCK.
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 have determined that this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
This prospectus is dated December __, 2000.
<PAGE>
TABLE OF CONTENTS
Newmont Mining.................................................................2
Risk Factors...................................................................2
Selling Stockholders...........................................................5
Use of Proceeds................................................................6
Description of Newmont Mining Capital Stock....................................6
U.S. Federal Income Tax Considerations as a Real
Property Holding Corporation................................................16
Plan of Distribution..........................................................17
Legal Opinion.................................................................18
Experts.......................................................................18
Where You Can Find More Information...........................................18
NEWMONT MINING
We were incorporated in 1965 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 and our telephone number is (303) 863-7414.
RISK FACTORS
Investing in our common stock involves a degree of risk. You should
carefully consider the following risks and all other information contained in
this prospectus before making an investment decision.
A SUBSTANTIAL OR EXTENDED DECLINE IN GOLD PRICES WOULD HAVE A MATERIAL ADVERSE
EFFECT ON OUR BUSINESS
Our business is extremely dependent on the price of gold, which is
affected by numerous factors beyond our control. Factors tending to put downward
pressure on the price of gold include:
o sales and leasing of gold reserves by governments and central
banks,
o a low rate of inflation and a strong U.S. dollar,
o global and regional depression or reduced economic activity, and
o speculative trading.
Any drop in the price of gold adversely impacts our revenues, profits and cash
flows.
In addition, sustained low prices can:
o reduce revenues by production cutbacks due to cessation of the
mining of deposits or portions of deposits that have become
uneconomic at the then-prevailing gold price,
o halt the development of new projects,
o reduce funds available for exploration, with the result that
depleted reserves are not replaced,
o reduce the existing reserves by removing ore from reserves that
cannot be economically mined or treated at prevailing prices, or
o result in the write-off of assets whose value is impaired by low
gold prices.
WE CONTINUALLY NEED TO OBTAIN ADDITIONAL RESERVES FOR GOLD PRODUCTION
We must continually replace gold reserves depleted by production. The
depleted reserves must be replaced by expanding known orebodies or by locating
new deposits in order for us to maintain our production levels over the long
term. It may take many years from the initial phases of drilling before
production is possible and during that time economic feasibility of production
may change. We need to make substantial expenditures to establish proven and
probable reserves through drilling, to determine metallurgical processes to
extract the metals from the ore and, in the case of new properties, to construct
mining and processing facilities. Success in exploration for gold is very
uncertain and there is the risk that depletion of reserves will not be offset by
discoveries.
ESTIMATES OF PROVEN AND PROBABLE ORE RESERVES AT NEW SITES ARE UNCERTAIN
When we make estimates of proven and probable reserves and cash
operating costs at development projects that have no operating history they are
subject to considerable uncertainty. Our estimates are, to a large extent, based
on interpretations of geologic data obtained from drill holes and other sampling
techniques. We use feasibility studies to derive estimates of cash operating
costs based upon anticipated tonnage and grades of ore to be mined and
processed, configuration of the ore body, expected recovery rates of the gold,
copper or other metals from the ore, comparable facility, equipment and
operating costs, anticipated climatic conditions and other factors. As a result,
actual cash operating costs and economic returns on development projects may
differ significantly from our original estimates. Also, we sometimes experience
unexpected problems and delays during the start-up phase in new mining
operations. The process for obtaining permits for such operations, in
particular, is difficult and uncertain.
WE INCUR COSTS TO COMPLY WITH ENVIRONMENTAL AND OTHER GOVERNMENTAL REGULATIONS
Our exploration, production and processing operations are extensively
regulated under various U.S. federal, state and local and foreign laws relating
to the protection of air and water quality, hazardous waste management and mine
reclamation. We have incurred current and may have potential future liability
for remediation and other environmental costs. Further, the regulatory
environment for our operations could change in ways that would substantially
increase liability or the costs of compliance and have a material adverse effect
on our results of operations or financial position.
OUR OPERATIONS OUTSIDE NORTH AMERICA ARE SUBJECT TO THE RISKS OF DOING BUSINESS
ABROAD
Over the past few years, we have devoted a significant portion of our
capital expenditures to international ventures. Our mining properties outside of
the United States and Canada accounted for approximately 36% of our 1999 gold
production. We have approximately 38% of our long-lived assets outside of the
United States and Canada.
These non-North American exploration, development and production
activities are potentially subject to increased political and economic risks,
including:
o cancellation or renegotiation of contracts;
o disadvantages of competing against companies from countries that
are not subject to U.S. laws and regulations, including the
Foreign Corrupt Practices Act;
o changes in foreign laws or regulations;
o changes in tax laws;
o royalty and tax increases or claims;
o retroactive tax or royalty claims;
o expropriation or nationalization of property;
o currency fluctuations;
o foreign exchange controls;
o import and export regulations;
o environmental controls;
o risks of loss due to civil strife, acts of war, guerrilla
activities and insurrection; and
o other risks arising out of foreign sovereignty over the areas in
which our operations are conducted.
Consequently, our non-North American exploration, development and
production activities may be substantially affected by factors beyond our
control, any of which could materially adversely affect our financial position
or results of operations. Furthermore, in the event of a dispute arising from
non-North American operations, we may be subject to the exclusive jurisdiction
of courts outside North America or may not be successful in subjecting non-North
American persons to the jurisdiction of the courts in North America, which could
adversely affect the outcome of a dispute.
WE MAY SUFFER LOSSES FROM HEDGING
We use commodity market instruments to protect the selling price of a
portion of future production. We also sometimes contract to sell future
production at an agreed price. Our net income in 1999 was reduced by $44.8
million ($29.1 million, net of tax) for the recognition of an unrealized
non-cash mark-to-market loss on call options sold in 1999. Similar losses may
occur in the future. An increase in the price of gold will likely increase the
fair value of the all options held by us resulting in non-cash charges against
income consisting of an "unrealized mark-to-market loss on call options" equal
to the difference between the fair value of the options on the date of sale and
at the end of a particular period. However, over the life of the options, any
charges would be restored to income. If the gold price rises above the price for
which future production has been sold, we will have an opportunity loss.
SELLING STOCKHOLDERS
The following table sets forth the following:
o the name of each of the selling stockholders,
o the number of shares of common stock beneficially owned by each
of the selling stockholders as of October 23, 2000,
o the number of shares of common stock that each selling
stockholder may sell by this prospectus and
o the number of shares of common stock that each selling
stockholder will beneficially own after the sale of all shares
covered by this prospectus:
<TABLE>
<CAPTION>
Beneficial Ownership Beneficial Ownership
Prior to Sales by Shares to after Sales by
Selling Stockholders this Prospectus be Offered this Prospectus
-------------------- --------------- ---------- ---------------
<S> <C> <C> <C>
Normandy International Holdings
Pty Ltd.......................... 0 1,287,788 0
Compagnie Miniere Internationale
Or S.A........................... 0 1,340,351 0
</TABLE>
No selling stockholder beneficially owns one percent or more of our
issued and outstanding common stock.
The selling stockholders acquired the shares of common stock that may
be sold by this prospectus under the terms of a settlement agreement dated
October 20, 2000 among Newmont Mining, Compania de Minas Buenaventura S.A.A.,
the selling stockholders and other affiliated entities. The settlement agreement
relates to the settlement of litigation and the release of claims in connection
with Newmont Mining's and Buenaventura's Peruvian joint venture, Minera
Yanacocha S.R.L., and other operations.
Our registration of the shares included in this prospectus does not
necessarily mean that the selling stockholders will decide to sell any of the
shares offered by this prospectus. The shares covered by this prospectus may be
sold from time to time by the selling stockholders pursuant to this prospectus
so long as this prospectus remains in effect.
USE OF PROCEEDS
We will not receive any proceeds from the sale of common stock by this
prospectus by the selling stockholders.
DESCRIPTION OF OUR CAPITAL STOCK
Your rights as a stockholder will be governed by Delaware law, our
restated certificate of incorporation and our by-laws. The following is a
summary of the material terms of our capital stock and is qualified in its
entirety by reference to the applicable provisions of Delaware law, our restated
certificate of incorporation and by-laws and the Rights Agreement, dated as of
August 31, 2000, between us and ChaseMellon Shareholder Services LLC, as rights
agent, relating to rights to purchase shares of our Series A Junior
Participating Preferred Stock. Copies of our restated certificate of
incorporation, our by-laws and our Rights Agreement are attached as exhibits to
the registration statement of which this prospectus forms a part.
As of November 22, 2000, we had 255,000,000 shares of authorized
capital stock. Those shares consisted of:
o 5,000,000 shares of preferred stock, none of which were
outstanding; and
o 250,000,000 shares of common stock, of which 168,200,894 shares
were outstanding.
COMMON STOCK
Listing
Our common stock is listed on the New York Stock Exchange under the
symbol "NEM" and on the Brussels Stock Exchange and the Swiss Stock Exchange.
Dividends
Holders of our common stock may receive dividends when declared by the
board of directors. Subject to the terms of any outstanding preferred stock,
holders of our common stock may not receive dividends until we have satisfied
our obligations to any holders of our preferred stock.
Voting Rights
The holders of our common stock are entitled to one vote per share and,
in general, a plurality of votes cast with respect to a matter will be
sufficient to authorize action upon routine matters. However:
o our restated certificate of incorporation may be amended only if the
proposed amendment is approved by our board of directors and thereafter
approved by a majority of the outstanding stock entitled to vote on the
amendment and by a majority of the outstanding stock of each class entitled
to vote on the amendment as a class.
o our stockholders may amend our by-laws by the affirmative vote of a
majority of the outstanding stock entitled to vote thereon.
Directors are to be elected by a plurality of the votes cast, and our
stockholders do not have the right to cumulate their votes in the election of
directors. For that reason, holders of a majority of the shares of our common
stock entitled to vote in any election of our directors may elect all of the
directors standing for election. Our board is not classified.
By-Laws
Our board of directors may adopt, amend or repeal our by-laws subject
to Delaware law and our restated 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, holders of our common stock will share proportionally in the
distribution of all assets remaining after we pay creditors and preferred
stockholders.
Redemption
The common stock is not redeemable or convertible.
ANTI-TAKEOVER PROVISIONS
Article Ninth of our restated certificate of incorporation and our
Rights Agreement may make it more difficult for certain corporations, entities
or persons to acquire control of us or to remove management.
Approval of Certain Mergers, Consolidations, Sales and Leases
Article Ninth of our restated certificate of incorporation requires us
to get the approval of 80% of our stockholders who are entitled to vote in
elections of directors to enter into the following types of transactions:
o a merger or consolidation between us and another corporation that
holds 10% or more of our outstanding shares;
o 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
o 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
o 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
o 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
On August 31, 2000, our board of directors declared a dividend of one
Series A Junior Participating Preferred Stock purchase right for each
outstanding share of common stock, par value $1.60 per share. The dividend was
paid on September 11, 2000 to the stockholders of record on that date. These
rights replaced our preferred share purchase rights that expired on September
11, 2000.
In general terms, the Rights Agreement works by imposing a significant
penalty upon any person or group which acquires 15% or more of our outstanding
common stock without the approval of our board.
The Rights
Our board authorized the issuance of one right with respect to each
share of common stock outstanding on September 11, 2000. The rights initially
traded with, and were inseparable from, the common stock. The rights are
evidenced only by certificates that represent shares of our common stock. New
rights accompany any new shares of our common stock issued after September 11,
2000 until the "distribution date" described below.
Exercise Price
Each right allows its holder to purchase from us one one-thousandth of
a share of Series A Junior Participating Preferred Stock, referred to as
"preferred shares," for $100, once the rights become exercisable. This portion
of a preferred share will give the stockholder approximately the same dividend,
voting, and liquidation rights as would one share of common stock. Prior to
exercise, the right does not give its holder any dividend, voting, or
liquidation rights.
Exercisability
The rights will not be exercisable until
o 10 days after the public announcement that a person or group has
become an "acquiring person" by obtaining beneficial ownership of
15% or more of our outstanding common stock, or, if earlier,
o 10 business days, or a later date determined by our board before
any person or group becomes an acquiring person, after a person
or group begins a tender or exchange offer which, if completed,
would result in that person or group becoming an acquiring
person.
We refer to the date when the rights become exercisable as the
"distribution date." Until that date, the common stock certificates also
evidence the rights, and any transfer of shares of common stock constitutes a
transfer of rights. After that date, the rights will separate from the common
stock and be evidenced by book-entry credits or by rights certificates that we
will mail to all eligible holders of common stock. Any rights held by an
acquiring person are void and may not be exercised.
Our board may reduce the threshold at which a person or group becomes
an acquiring person from 15% to not less than 10% of our outstanding common
stock.
Consequences of a Person or Group Becoming an Acquiring Person
o Flip In. If a person or group becomes an acquiring person, all
holders of rights except the acquiring person may, for $100,
purchase shares of our common stock with a market value of $200,
based on the market price of the common stock prior to such
acquisition.
o Flip Over. If we are later acquired in a merger or similar
transaction after the rights distribution date, all holders of
rights except the acquiring person may, for $100, purchase shares
of the acquiring corporation with a market value of $200 based on
the market price of the acquiring corporation's stock, prior to
such merger.
Preferred Share Provisions
Each one one-thousandth of a preferred share, if issued:
o will not be redeemable.
o will entitle holders to quarterly dividend payments of $0.001 per
share, or an amount equal to the dividend paid on one share of
common stock, whichever is greater.
o will entitle holders upon liquidation either to receive $1 per
share or an amount equal to the payment made on one share of
common stock, whichever is greater.
o will have the same voting power as one share of common stock.
o if shares of our common stock are exchanged via merger,
consolidation, or a similar transaction, will entitle holders to
a per-share payment equal to the payment made on one share of
common stock.
The value of one one-thousandth interest in a preferred share
approximates the value of one share of common stock.
Expiration
The rights will expire on September 11, 2010.
Redemption
Our board may redeem the rights for $0.001 per right at any time before
any person or group becomes an acquiring person. If our board redeems any
rights, it must redeem all of the rights. Once the rights are redeemed, the only
right of the holders of rights will be to receive the redemption price of $0.001
per right. The redemption price will be adjusted if we have a stock split or
stock dividends of our common stock.
Exchange
After a person or group becomes an acquiring person, but before an
acquiring person owns 50% or more of our outstanding common stock, our board may
extinguish the rights by exchanging one share of common stock or an equivalent
security for each right, other than rights held by the acquiring person.
Anti-Dilution Provisions
Our board may adjust the purchase price of the preferred shares, the
number of preferred shares issuable and the number of outstanding rights to
prevent dilution that may occur from a stock dividend, a stock split, a
reclassification of the preferred shares or common stock. No adjustments to the
exercise price of less than 1% may be made.
Amendments
The terms of the Rights Agreement may be amended by our board without
consent of the holders of the rights. However, our board may not amend the
rights agreement to lower the threshold at which a person or group becomes an
acquiring person to below 10% of our outstanding common stock. In addition, our
board may not cause a person or group to become an acquiring person by lowering
this threshold below the percentage interest that such person or group already
owns. After a person or group becomes an acquiring person, our board may not
amend the agreement in a way that adversely affects holders of the rights.
The Rights Have Anti-Takeover Effects
The stockholder rights will cause substantial dilution to a person or
group that attempts to acquire us on terms not approved by our board, except by
means of an offer conditioned on a substantial number of rights being acquired.
The rights should not interfere with any merger or other business combination
approved by our board, as the rights may be redeemed by us at the required
redemption price, or may be amended so as not to apply to such a combination,
prior to the time that a person or group has acquired beneficial ownership of
15% or more of the shares of our common stock.
The Rights Agreement, specifying the terms of the rights and including,
as an exhibit, the form of the certificate of designation setting forth the
terms of the Series A Junior Participating Preferred Stock, is attached as an
exhibit to our registration statement on Form 8-A, dated September 6, 2000, and
is incorporated in this document by reference. The foregoing description of the
Series A Junior Participating Preferred Stock purchase rights is qualified in
its entirety by reference to this exhibit. You should read the Rights Agreement.
$3.25 CONVERTIBLE PREFERRED STOCK
In connection with the proposed merger of our wholly owned subsidiary,
Bounty Merger Corp., with Battle Mountain Gold Company, on the effective date of
the merger, we expect to issue shares of a new series of $3.25 convertible
preferred stock, par value $5.00 per share. On June 21, 2000 our board of
directors authorized the issuance of up to 2,300,000 shares of $3.25 convertible
preferred stock. The following is a summary of our convertible preferred stock.
This summary is qualified in its entirety by reference to the form of the
certificate of designation of our $3.25 convertible preferred stock, a copy of
which is attached as an exhibit to our registration statement on Form 8-A, dated
September 6, 2000 and is incorporated in this document by reference.
Dividend Rights
Holders of shares of the convertible preferred stock will be entitled
to receive, when, as and if declared by our board of directors out of funds
legally available therefor, an annual cash dividend of $3.25 per share, payable
in equal quarterly installments on February 15, May 15, August 15 and November
15, commencing November 15, 2000 (assuming the merger of Bounty Merger Corp. and
Battle Mountain Gold Company is completed prior to this date), except that if
such date is not a Saturday, Sunday or legal holiday, then such dividend will be
payable on the next succeeding day that is not a Saturday, Sunday or legal
holiday. Dividends on the convertible preferred stock will accrue without
interest and be cumulative from the date of initial issuance. Dividends will be
payable to holders of record as they appear on our stock transfer books on such
record dates as are fixed by our board of directors.
If dividends are not paid in full, or declared in full and sums set
apart for the payment thereof, upon the convertible preferred stock and any
other preferred stock ranking on a parity as to dividends with the convertible
preferred stock, all dividends declared upon shares of convertible preferred
stock and such other parity preferred stock will be declared pro rata so that in
all cases the amount of dividends declared and paid per share on the convertible
preferred stock and such other parity preferred stock will bear to each other
the same ratio that accumulated dividends per share on the shares of convertible
preferred stock and such other preferred stock bear to each other. Except as set
forth above, unless full cumulative dividends on the convertible preferred stock
have been paid, or declared and sums set aside for the payment thereof,
dividends (other than in common stock or any of our other stock ranking junior
to the convertible preferred stock as to dividends and as to liquidation rights)
may not be paid, or declared and set aside for payment, and other distributions
may not be made upon the common stock or on any of our other stock ranking
junior to or on a parity with the convertible preferred stock as to dividends;
and neither common stock nor any of our other stock ranking junior to the
convertible preferred stock as to dividends may be redeemed, purchased or
otherwise acquired for any consideration by us.
Conversion Rights
Each share of convertible preferred stock will be convertible into
shares of our common stock at any time at the conversion price of $100 (the
$10.50 conversion price in respect of existing outstanding Battle Mountain
convertible preferred stock divided by the exchange ratio in the merger),
adjusted as described in the following paragraphs. If shares of convertible
preferred stock are earlier called for redemption, the conversion right with
respect thereto will terminate at the close of business on the date fixed for
redemption and will be lost if not exercised prior to that time, unless we
default in payment of the redemption obligation.
Fractional shares of common stock will not be delivered upon
conversion, but a cash adjustment will be paid in respect of such fractional
interests based on the then-current market price of the common stock.
The conversion price is subject to adjustment upon certain events,
including
(1) the issuance of common stock as a dividend or distribution on the
common stock;
(2) a combination, subdivision or reclassification of common stock;
(3) the issuance to all holders of common stock of rights or warrants
(expiring within 45 days after the record date for determining
stockholders entitled to receive them) entitling them to
subscribe for or purchase common stock at less than the
then-current market price; and
(4) the distribution to all holders of common stock or capital stock
(other than common stock), evidences of our indebtedness, assets
(excluding regular periodic cash dividends), or rights or
warrants to subscribe for or purchase our securities (excluding
the dividends, distributions, rights and warrants mentioned
above).
No adjustment of the conversion price will be required to be made in
any case until cumulative adjustments amount to 1% of such price. We will not
adjust the conversion price with respect to rights or warrants issued pursuant
to certain employee benefit plans. Adjustments to the conversion price with
respect to preferred stock purchase rights or similar rights or warrants
hereafter adopted or issued will generally be made when such preferred stock
purchase rights or similar rights or warrants are exercised. From time to time
we may decrease the conversion price by any amount for any period of at least 20
days, so long as the decrease is irrevocable during such period, in which case
we will give at least 15 days' notice of such decrease. In addition to the
foregoing adjustments, we are permitted to make such reductions in the
conversion price as it determines to be advisable in order that any stock
dividend, subdivision or shares, distribution of rights to purchase stock or
securities or distribution of securities convertible into or exchangeable for
stock made by Newmont to its stockholders will not be taxable to the recipients.
Except as stated above, we will not adjust the conversion price for the
issuance of common stock, or any securities convertible into or exchangeable for
common stock or carrying the right to purchase any of the foregoing, in exchange
for cash, property or services.
In case of any consolidation or merger to which we are a party (other
than a merger or consolidation in which we are the continuing corporation and in
which the common stock outstanding immediately prior to the merger or
consolidation is not exchanged for cash, securities or other property of another
corporation), or in case of any sale or transfer to another corporation of our
property as an entirety or substantially as an entirety, or in the case of any
statutory exchange of securities with another corporation (other than in
connection with a merger or acquisition), there will be no adjustment of the
conversion price. In any such case, each holder of the then-outstanding
convertible preferred stock will have the right, at the holder's option, to
convert such holder's convertible preferred stock into the kind and amount of
securities, cash or other property receivable upon such consolidation, merger,
statutory exchange, sale or transfer by a holder of the number of shares of
common stock into which such convertible preferred stock might have been
converted immediately prior to such consolidation, merger, statutory exchange,
sale or transfer, assuming such holder of common stock failed to exercise such
holder's rights of election, if any, as to the kind or amount of securities,
cash or other property receivable upon such consolidation, merger, statutory
exchange, sale or transfer (provided that if the kind or amount of securities,
cash or other property receivable upon such consolidation, merger, statutory
exchange, sale or transfer is not the same for each non-electing share, then the
kind and amount of securities, cash or other property receivable upon such
consolidation, merger, statutory exchange, sale or transfer for each
non-electing share shall be deemed to be the kind and amount so receivable per
share by a plurality of the non-electing shares). In the case of a cash merger
of us into another corporation or any other cash transaction of the type
mentioned above, the effect of these provisions would be that thereafter each
share of convertible preferred stock would be convertible at the conversion
price in effect at such time into the same amount of cash per share into which
each share of convertible preferred stock would have been convertible had such
share been converted into common stock immediately prior to the effective date
of such cash merger or transaction. Depending upon the terms of such cash merger
or transaction, the aggregate amount of cash into which such shares of
convertible preferred stock would be converted could be more or less than the
liquidation preference with respect to such convertible preferred stock.
Convertible preferred stock surrendered for conversion after the close
of business on a record date for payment of dividends and before the opening of
business on the next succeeding dividend payment date (unless such convertible
preferred stock is subject to redemption on a redemption date in that period)
must be accompanied by payment of an amount equal to the dividend thereon which
is to be paid on such dividend payment date. Subject to the foregoing, no
payments or adjustments will be made upon conversion on account of accrued
dividends on the convertible preferred stock or for any dividends or
distributions on any shares of common stock delivered upon such conversion.
Liquidation Rights
In the event of any liquidation, dissolution or winding up of Newmont,
the holders of shares of convertible preferred stock are entitled to receive a
liquidation preference of $50.00 per share, plus an amount equal to any accrued
and unpaid dividends to the date of payment before any distribution of assets is
made to holders of common stock or any other stock that ranks junior to the
convertible preferred stock as to liquidation rights.
The holders of convertible preferred stock and all series or classes of
our stock issued after the convertible preferred stock that rank on a parity as
to liquidation rights with the convertible preferred stock are entitled to share
ratably, in accordance with the respective preferential amounts payable on such
stock, in any distribution which is not sufficient to pay in full the aggregate
of the amounts payable thereon. After payment in full of the liquidation
preference of the shares of the convertible preferred stock, the holders of such
shares will not be entitled to any further participation in any distribution of
assets by us. Neither a consolidation, merger or other business combination of
us with or into another corporation or other entity nor a sale or transfer of
all or part of our assets for cash, securities or other property will be
considered a liquidation, dissolution or winding up of us.
Redemption at Option of Newmont
The convertible preferred stock is redeemable, at our option, in whole
or in part, for shares of common stock, at any time, if redeemed during the
12-month period beginning May 15 of the year specified below, at the following
redemption prices:
PRICE PER
YEAR SHARE
---- -----
2000....................................................... $50.975
2001....................................................... $50.650
2002....................................................... $50.325
and thereafter at $50.00 per share, plus in each case accrued and unpaid
dividends to the redemption date. At no time will the convertible preferred
stock be redeemable for cash.
We will issue in payment of the redemption price for each share of
convertible preferred stock to be redeemed such number of shares of common stock
as equals (1) the then-current Redemption Price of the convertible preferred
stock, divided by (2) the market price of the common stock, subject to
adjustment in certain circumstances. The market price will be calculated as the
lower of (1) the average of the daily closing prices of the common stock for the
20 consecutive trading days immediately preceding the first business day
immediately preceding the date of the applicable redemption notice and (2) the
closing price of the common stock on the trading day immediately preceding the
first business day immediately preceding the date of the applicable redemption
notice. The closing price for each day will be the last reported sales price
regular way or, in case no such reported sales takes place on such day, the
average of the closing bid and asked prices regular way for such day, in each
case on the New York Stock Exchange Composite Tape. Fractional shares of common
stock will not be issued upon any redemption of convertible preferred stock,
but, in lieu thereof, we will pay a cash adjustment based on the Market Price.
If fewer than all the outstanding shares of convertible preferred stock
are to be redeemed, we will select those shares to be redeemed pro rata or by
lot or in such other manner as the board of directors may determine. There is no
mandatory redemption or sinking fund obligation with respect to the convertible
preferred stock. In the event that we have failed to pay accrued and unpaid
dividends on the convertible preferred stock, we may not redeem less than all of
the then-outstanding shares of the convertible preferred stock until all such
accrued and unpaid dividends have been paid in full.
Notice of redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of record of shares of
convertible preferred stock to be redeemed at the address shown on the stock
transfer books. After the redemption date, dividends will cease to accrue on the
shares of convertible preferred stock called for redemption and all rights of
the holders of such shares will terminate, except the right to receive shares of
common stock equal to the Redemption Price as described above without interest
or adjustment resulting from changes in the market value of the common stock. At
the close of business on the redemption date, each holder of convertible
preferred stock so redeemed (unless Newmont defaults on its obligations to
deliver shares of common stock or cash) will be, without any further action,
deemed a holder of the number of shares of common stock for which such
convertible preferred stock is redeemable.
Voting Rights
Holders of the convertible preferred stock will have no voting rights
except as described below or as required by law. In exercising any such vote,
each outstanding share of convertible preferred stock will be entitled to one
vote, excluding shares held by Newmont or any entity controlled by us, which
shares will have no voting rights.
Whenever dividends on the convertible preferred stock have not been
paid in an aggregate amount equal to at least six quarterly dividends on such
shares, whether or not consecutive, the number of directors of Newmont will be
increased by two, and the holders of the convertible preferred stock (voting
separately as a class with the holders of any outstanding shares of stock on a
parity as to dividends with the convertible preferred stock ("parity dividend
stock") on which like voting rights have been conferred and are exercisable)
will be entitled to elect such two additional directors to the board of
directors at any meeting of our stockholders at which directors are to be
elected until all such dividends accrued and in default have been paid in full
or set apart for payment in full. The term of office of all directors so elected
will terminate immediately upon such payment or setting apart for payment.
In addition, so long as any convertible preferred stock is outstanding,
we will not, without the affirmative vote or consent of the holders of at least
66-2/3 percent of all outstanding shares of convertible preferred stock, voting
separately as a class, (i) amend, alter or repeal any provision of our
certificate of incorporation or by-laws so as to affect adversely the relative
rights, preferences, qualifications, limitations or restrictions of the
convertible preferred stock, (ii) authorize or issue or increase the authorized
amount of any additional class or series of stock, or any security convertible
into stock of such class or series, ranking senior to the convertible preferred
stock as to dividends or as to rights upon liquidation, dissolution or winding
up of us or (iii) effect any reclassification of the convertible preferred
stock.
Other Provisions
The shares of convertible preferred stock, when issued, will be duly
and validly issued, fully paid and nonassessable.
The holders of shares of convertible preferred stock have no preemptive
rights with respect to any of our securities.
An application has been filed for listing our convertible preferred
stock on the New York Stock Exchange. The registrar, transfer agent, conversion
agent and dividend disbursing agent for the convertible preferred stock and the
transfer agent and registrar for the common stock issuable upon conversion
thereof will be ChaseMellon Shareholder Services, LLC.
U.S. FEDERAL INCOME TAX CONSIDERATIONS AS A REAL PROPERTY HOLDING CORPORATION
We are likely to constitute a U.S. real property holding
corporation within the meaning of the Internal Revenue Code of 1986, as amended,
and the treasury regulations promulgated thereunder. Under certain
circumstances, gain recognized on the sale or exchange of common stock 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. However, because our common stock is
regularly traded on an established securities market, the special tax on gain
would 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.
Each prospective holder of common stock is urged to consult its own tax
advisors regarding the U.S. federal tax consequences of an investment in our
common stock, as well as the tax consequences under any state, local or foreign
tax laws.
PLAN OF DISTRIBUTION
We are registering by this prospectus the shares on behalf of the
selling stockholders. We will bear all costs, expenses and fees in connection
with the registration of the shares offered by this prospectus. The selling
stockholders may sell shares from time to time in one or more of the following
types of transactions, which may include block transactions:
o on the New York Stock Exchange or other exchanges on which our
common stock is traded,
o in the over-the-counter market,
o in negotiated transactions, or
o a combination of these methods.
The selling stockholders may sell shares at market prices prevailing at the time
of sale or at negotiated prices. The sale transactions may or may not involve
brokers or dealers.
The selling stockholders have advised us that they have not entered
into any agreements, understandings or arrangements with any underwriters or
broker-dealers regarding the sale of the shares, nor is there an underwriter or
coordinating broker acting in connection with any proposed sale of shares by the
selling stockholders.
The selling stockholders may sell shares directly to purchasers or to
or through broker-dealers, which may act as agents or principals. The
broker-dealers may receive compensation in the form of discounts, concessions,
or commissions from the selling stockholders or the purchasers of shares for
whom the broker-dealers may act as agents or to whom they sell as principal, or
both. The compensation of a particular broker-dealer might be in excess of
customary commissions.
The selling stockholders and any broker-dealers that act in connection
with the sale of shares might be deemed to be "underwriters" within the meaning
of Section 2(11) of the Securities Act of 1933. Any commissions received by
these broker-dealers and any profit on the resale of the shares sold by them
while acting as principals might be deemed to be underwriting discounts or
commissions under the Securities Act.
We have agreed to indemnify each selling stockholder against certain
liabilities, including liabilities arising under the Securities Act. The selling
stockholders may agree to indemnify any agent, dealer or broker-dealer that
participates in transactions involving sales of the shares against certain
liabilities, including liabilities arising under the Securities Act.
Because selling stockholders may be deemed to be "underwriters" within
the meaning of Section 2(11) of the Securities Act, the selling stockholders
will be subject to the prospectus delivery requirements of the Securities Act,
which may include delivery through the facilities of the New York Stock Exchange
pursuant to Rule 153 under the Securities Act. We have informed the selling
stockholders that the anti-manipulative provisions of Regulation M promulgated
under the Securities Exchange Act of 1934 may apply to their sales of shares in
the market.
The selling stockholders also may resell all or a portion of the shares
in open market transactions in reliance upon Rule 144 under the Securities Act,
provided they meet the criteria and conform to the requirements of Rule 144.
Upon our being notified by a selling stockholder that any material
arrangement has been entered into with a broker-dealer for the sale of shares
through a block trade, special offering, exchange distribution or secondary
distribution or a purchase by a broker or dealer, a supplement to this
prospectus will be filed, if required, pursuant to Rule 424(b) under the
Securities Act, disclosing:
o the name of the selling stockholder and of the participating
broker-dealers,
o the number of shares involved,
o the price at which the shares were sold,
o the commissions paid or discounts or concessions allowed to the
broker-dealers, where applicable,
o that the broker-dealers did not conduct any investigation to
verify the information set out or incorporated by reference in
this prospectus, and
o other facts material to the transaction.
LEGAL OPINION
White & Case LLP will issue for us an opinion about the legality of the
shares of common stock that may be offered by this prospectus.
EXPERTS
The consolidated financial statements incorporated by reference in this
prospectus have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their reports with respect thereto and are included
herein in reliance upon the authority of said firm 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 or 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 1-800-732-0330 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:
o Annual Report on Form 10-K for the year ended December 31, 1999
(as amended);
o Quarterly Reports on Form 10-Q for the quarters ended March 31,
2000, June 30, 2000 and September 30, 2000; and
o Current Reports on Form 8-K dated May 16, 2000, June 30, 2000,
September 6, 2000 and December 5, 2000.
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
You should rely only on the information incorporated by reference or
provided in this prospectus or in any 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 or any prospectus supplement is accurate as of any date other than
the date on the front of those documents.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.*
SEC filing fee.............................................$ 9,263
Accounting fees and expenses...............................$ 5,000
Legal fees and expenses....................................$40,000
Transfer Agent's fees......................................$ 1,000
Stock exchanges listing fees...............................$ 2,500
Miscellaneous..............................................$ 1,000
Total......................................................$58,763
--------------------
*All estimates except for filing fee.
ITEM 15. 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 Mining provide that each person who at any time
is or shall have been a director or officer of Newmont Mining, 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 Mining, and his or her heirs, executors and administrators, shall be
indemnified by Newmont Mining 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 Mining 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 Newmont Mining and the director or officer.
ITEM 16. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENTS
4.1 - Restated Certificate of Incorporation of Newmont Mining Corporation
(incorporated by reference to Exhibit 3.1 to Newmont Mining Corporation's
Registration Statement on Form S-4 (No. 333-50516)).
4.2 - By-Laws of Newmont Mining Corporation as amended through August 30,
2000.*
4.3 - Rights Agreement dated as of August 31, 2000 between Newmont Mining
Corporation and ChaseMellon Shareholder Services LLC, as Rights Agent
(incorporated by reference to Exhibit 4.1 to Newmont Mining Corporation's
Registration Statement on Form 8-A dated September 6, 2000).
5 - Opinion of White & Case LLP.
23.1 - Consent of Arthur Andersen LLP.
23.2 - Consent of White & Case LLP (included in Exhibit 5).
24.1 - Power of Attorney of certain officers and directors of Newmont Mining
Corporation.*
* Reviously filed.
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 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 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; and
(4) that, for purposes of determining any liability under the
Securities Act of 1933, each filing of Newmont Mining'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.
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 Act 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 Act 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 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 12TH DAY OF
DECEMBER, 2000.
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
*
-------------------------------
Ronald C. Cambre Chairman, Chief Executive December 12, 2000
Officer and Director
(Principal Executive Officer)
*
-------------------------------
James T. Curry, Jr. Director December 12, 2000
*
-------------------------------
Robert J. Miller Director December 12, 2000
*
-------------------------------
Wayne W. Murdy President and Director December 12, 2000
*
-------------------------------
Robin A. Plumbridge Director December 12, 2000
*
-------------------------------
Moeen A. Qureshi Director December 12, 2000
*
-------------------------------
Michael K. Reilly Director December 12, 2000
*
-------------------------------
James V. Taranik Director December 12, 2000
*
-------------------------------
William I.M. Turner, Jr. Director December 12, 2000
*
-------------------------------
Bruce D. Hansen Senior Vice President and Chief December 12, 2000
Financial Officer
(Principal Financial Officer)
*
-------------------------------
Linda K. Wheeler Vice President and Controller December 12, 2000
(Principal Accounting Officer)
*By /s/ Timothy J. Schmitt
-----------------------
Timothy J. Schmitt as
Attorney-in-fact
</TABLE>
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENTS
4.1 - Restated Certificate of Incorporation of Newmont Mining Corporation
(incorporated by reference to Exhibit 3.1 to Newmong Mining Corporation's
Registration Statement on Form S-4 (333-50516)).
4.2 - By-Laws of Newmont Mining Corporation as amended through August 30,
2000.*
4.3 - Rights Agreement dated as of August 31, 2000 between Newmont Mining
Corporation and ChaseMellon Shareholder Services LLC, as Rights Agent
(incorporated by reference to Exhibit 4.1 to Newmont Mining Corporation's
Registration Statement on Form 8-A dated September 6, 2000).
5 - Opinion of White & Case LLP.
23.1 - Consent of Arthur Andersen LLP.
23.2 - Consent of White & Case LLP (included in Exhibit 5).
24.1 - Power of Attorney of certain officers and directors of Newmont Mining
Corporation.*
* Previously filed.
