Registration No. 333-87100
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 3
to
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
NEWMONT MINING CORPORATION NEWMONT USA LIMITED
(Exact name of Registrant as specified in its charter) (Exact name of Registrant as specified in its charter)
Delaware Delaware
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
84-1611629 13-2526632
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
1700 Lincoln Street 1700 Lincoln Street
Denver, Colorado 80203 Denver, Colorado 80203
(303) 863-7414 (303) 863-7414
(Address, including zip code, and telephone number, (Address, including zip code, and telephone number,
including area code, of Registrant's principal executive including area code, of Registrant's principal
offices) executive offices)
Britt D. Banks, Esq.
Newmont Mining Corporation
1700 Lincoln Street
Denver, Colorado 80203
(303) 863-7414
(Name, address, including zip code, 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. |_|
The Registrants hereby amend this registration statement on such date or
dates as may be necessary to delay its effective date until the Registrants
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.
================================================================================
PROSPECTUS
NEWMONT MINING CORPORATION
We may offer by this prospectus the following securities for sale:
o Common Stock
o Preferred Stock
o Warrants to purchase Common Stock
o Senior Debt Securities guaranteed by our
subsidiary, Newmont USA Limited
o Subordinated Debt Securities guaranteed
by our subsidiary, Newmont USA Limited
o Warrants to purchase Debt Securities
We will provide the specific terms of the securities that we are offering in
supplements to this prospectus. You should read this prospectus and any
supplement carefully before you invest.
See "Risk Factors" beginning on page 4 regarding factors you should consider
before purchasing the securities being offered.
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 ________, 2003.
The information contained in this prospectus is not complete and may be changed.
We may not sell these securities until the registration statement filed with the
Securites and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
Table of Contents
-----------------
ABOUT THIS PROSPECTUS..........................................................3
NEWMONT MINING CORPORATION.....................................................3
RISK FACTORS...................................................................4
USE OF PROCEEDS...............................................................11
RATIOS OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS.............11
DESCRIPTION OF OUR CAPITAL STOCK..............................................12
DESCRIPTION OF COMMON STOCK WARRANTS..........................................20
DESCRIPTION OF DEBT SECURITIES AND GUARANTEES.................................22
DESCRIPTION OF DEBT SECURITY WARRANTS.........................................33
PLAN OF DISTRIBUTION..........................................................34
LEGAL OPINION.................................................................35
EXPERTS.......................................................................35
WHERE YOU CAN FIND MORE INFORMATION...........................................36
-2-
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
sell or otherwise offer any combination of the securities described in this
prospectus in one or more offerings up to a total offering price of
$1,000,000,000. All references to "dollars" or "$" in this prospectus refer to
United States currency unless otherwise specified.
This prospectus provides you with a general description of the
securities we may offer. Each time we sell securities, we will provide a
prospectus supplement with specific information about the terms of the
securities. The prospectus supplement may also update or change information
contained in this prospectus. You should read both this prospectus and any
prospectus supplement together with the additional information described under
the heading "Where You Can Find More Information."
NEWMONT MINING CORPORATION
Background
Newmont Mining Corporation's original predecessor corporation was
incorporated in 1921 under the laws of Delaware. On February 13, 2002, at a
special meeting of the stockholders of Newmont Mining Corporation, the
stockholders approved adoption of an Agreement and Plan of Merger that provided
for a restructuring of Newmont Mining Corporation to facilitate the February
2002 acquisitions described below and to create a more flexible corporate
structure. Newmont Mining Corporation merged with an indirect, wholly-owned
subsidiary, which resulted in Newmont Mining Corporation becoming a direct
wholly-owned subsidiary of a new holding company. Newmont Mining Corporation was
renamed Newmont USA Limited and the new holding company was renamed Newmont
Mining Corporation. There was no impact to the consolidated financial statements
of Newmont Mining Corporation as a result of this restructuring and former
stockholders of Newmont Mining Corporation became stockholders of the new
holding company. In this prospectus, "Newmont Mining," "we," "our" and "us"
refer to Newmont Mining Corporation and/ or our affiliates and subsidiaries.
On February 16, 2002, Newmont Mining completed the acquisition of
Franco-Nevada Mining Corporation Limited, a Canadian company, pursuant to a Plan
of Arrangement. As a result, Franco-Nevada became a subsidiary of Newmont Mining
and subsequently changed its name to Newmont Mining Corporation of Canada
Limited. On February 20, 2002, Newmont Mining gained control of Normandy Mining
Limited, an Australian company, through an off-market bid for all of the
ordinary shares of Normandy. On February 26, 2002, when Newmont Mining's
off-market bid for Normandy expired, Newmont Mining had a relevant interest in
more than 96% of Normandy's outstanding shares. Subsequently, Newmont exercised
its compulsory acquisition rights under Australian law to acquire all of the
shares of Normandy.
Newmont Mining and Newmont USA
We are engaged in the production of gold, the exploration for gold and
the acquisition and development of gold properties worldwide. We produce gold
from operations in North America, South America, Australia, New Zealand,
Indonesia, Uzbekistan and Turkey. We are also engaged in the production of, and
exploration for, silver, copper and zinc.
As a result of the restructuring described above, Newmont USA is a
subsidiary of Newmont Mining. The operations of Newmont USA and its subsidiaries
consist primarily of those of Newmont Mining Corporation and its subsidiaries
prior to the February 2002 acquisitions referred to above.
Newmont Mining is primarily a holding company and has no material
operations, sources of income or assets other than our equity interest in our
subsidiaries. Because substantially all of our operations are conducted by our
subsidiaries, our operating cash flow and our ability to service our
indebtedness, including any debt securities that may be issued pursuant to this
prospectus, depends upon the cash flow of our subsidiaries and their ability to
make transfers to us in the form of loans, dividends or otherwise. Our
subsidiaries are separate legal entities that have no obligation to pay any
amounts due pursuant to such debt securities, other than Newmont USA through its
-3-
guarantees of such debt securities, or to make any funds available for that
purpose in the form of dividends, interest, loans, advances or other payments.
If we cannot obtain sufficient funds from our subsidiaries, we may not be able
to meet our obligations on the debt securities that may be issued pursuant to
this prospectus.
Newmont Mining's right and the ability of holders of its securities to
participate in any distribution of assets of Newmont USA or any other subsidiary
of Newmont Mining upon its liquidation or reorganization are subject to the
prior claims of creditors of Newmont USA or such other subsidiary, as the case
may be. Such claims may include claims by holders of debt of Newmont USA or such
other subsidiary, as the case may be, and claims by creditors in the ordinary
course of business.
Newmont Mining's and Newmont USA's principal executive offices are
located at 1700 Lincoln Street, Denver, Colorado 80203. Our telephone number is
(303) 863-7414.
RISK FACTORS
Investment in our securities is subject to risks and uncertainties.
Every investor or potential investor in Newmont should carefully
consider the risks that are set forth below, which have been separated into two
groups:
o risks related to the gold mining industry generally; and
o risks related to our operations.
Other risks may be subsequently identified and the risk factors set
forth below may be modified or updated in documents that we file subsequent to
the date of this prospectus with the SEC which are incorporated by reference
into this prospectus, as described in "Where You Can Find More Information.
Risks Related to the Gold Mining Industry Generally
A Substantial or Extended Decline in Gold Prices Would Have a Material
Adverse Effect on Newmont
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 or leasing of gold by governments and central banks;
o a low rate of inflation and a strong U.S. dollar;
o global and regional recession or reduced economic activity;
o speculative trading;
o decreased perception of geopolitical or economic risk;
o decreased demand for gold for industrial uses, use in jewelry,
and investment;
o high supply of gold from production, disinvestment, and scrap and
hedging;
o sales by gold producers in forward transactions and other hedging
transactions; and
-4-
o devaluing local currencies (relative to gold priced in U.S.
dollars) leading to lower production costs and higher production
in certain major gold-producing regions.
Any drop in the price of gold adversely impacts our revenues, profits
and cash flows, particularly in light of our "no-hedging" philosophy. We have
recorded asset writedowns in recent years as a result of a sustained period of
low gold prices. We may experience additional asset impairments as a result of
low gold prices in the future.
In addition, sustained low gold prices can:
o reduce revenues further 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 or delay the development of new projects;
o reduce funds available for exploration, with the result that
depleted reserves are not replaced; and
o reduce existing reserves, by removing ores from reserves that cannot
be economically mined or treated at prevailing prices.
Also see the discussion of "Gold Price" in Item 1, "Business" in our
Annual Report on Form 10-K for our most recently completed fiscal year.
Gold Producers Must Continually Obtain Additional Reserves
Gold producers must continually replace gold reserves depleted by
production. Depleted reserves must be replaced by expanding known ore bodies or
by locating new deposits in order for gold producers to maintain production
levels over the long term. Gold exploration is highly speculative in nature,
involves many risks and frequently is unproductive. No assurances can be given
that any of our new or ongoing exploration programs will result in new mineral
producing operations. Once mineralization is discovered, it may take many years
from the initial phases of drilling until production is possible, during which
time the economic feasibility of production may change. As a result, reserves
may decline as gold is produced if they are not adequately replaced.
Estimates of Proven and Probable Reserves are Uncertain
Estimates of proven and probable reserves are subject to considerable
uncertainty. Such estimates are, to a large extent, based on interpretations of
geologic data obtained from drill holes and other sampling techniques. Gold
producers use feasibility studies to derive estimates of cash operating costs
based upon anticipated tonnage and grades of ore to be mined and processed, the
predicted configuration of the ore body, expected recovery rates of metals from
the ore, comparable facility, equipment, and operating costs, and other factors.
Actual cash operating costs and economic returns on projects may differ
significantly from original estimates. Further, it may take many years from the
initial phase of drilling before production is possible and, during that time,
the economic feasibility of exploiting a discovery may change.
Increased Costs Could Affect Profitability
The total cash costs at any particular mining location are frequently
subject to great variation from one year to the next due to a number of factors,
such as changing ore grade, metallurgy and mining activities in response to the
physical shape and location of the ore body. In addition, cash costs are
affected by the price of commodities such as fuel and electricity. Such
commodities are at times subject to volatile price movements, including
increases that could make production at certain operations less profitable. A
material increase in costs at any one location could have a significant effect
on our profitability.
Mining Accidents or Other Adverse Events at a Mining Location Could
Reduce Our Production Levels
-5-
At any of our operations, production may fall below historic or
estimated levels as a result of mining accidents such as a pit wall failure in
an open pit mine, or cave-ins or flooding at underground mines. In addition,
production may be unexpectedly reduced at a location if, during the course of
mining, unfavorable ground conditions or seismic activity are encountered; ore
grades are lower than expected; the physical or metallurgical characteristics of
the ore are less amenable to mining or treatment than expected; or our
equipment, processes or facilities fail to operate properly or as expected.
The Use of Hedging Instruments May Prevent Gains Being Realized from
Subsequent Price Increases
Consistent with our "no-hedging" philosophy, we do not intend to enter
into new material gold hedging positions and we intend to decrease our hedge
positions over time by opportunistically delivering gold into our existing hedge
contracts, and by seeking to unwind our hedge positions when economically
attractive. Nonetheless, we currently have gold hedging positions. If the gold
price rises above the price at which future production has been committed under
these hedge instruments, we will have an opportunity loss. However, if the gold
price falls below that committed price, our revenues will be protected to the
extent of such committed production. In addition, we may experience losses if a
hedge counterparty defaults under a contract when the contract price exceeds the
gold price.
For a more detailed description of our hedge positions, see the
discussion in "Hedging" in Item 7A, "Quantitative and Qualitative Disclosures
About Market Risks" in our Annual Report on Form 10-K for our most recently
completed fiscal year.
Currency Fluctuations May Affect the Costs that Newmont Incurs
Currency fluctuations may affect the costs that we incur at our
operations. Gold is sold throughout the world based principally on the U.S.
dollar price, but a portion of our operating expenses are incurred in local
currencies. The appreciation of non-U.S. dollar currencies against the U.S.
dollar can increase the costs of gold production in U.S. dollar terms at mines
located outside the United States, making such mines less profitable. The
currencies which primarily impact our results of operations are the Canadian and
Australian dollars.
During 2002, the Canadian and Australian dollars strengthened by an
average of 1% and 5%, respectively, against the U.S. dollar. This increased U.S.
dollar reported operating costs in Canada and Australia by approximately $1.0
million and $18.3 million, respectively.
For a more detailed description of how currency exchange rates may
affect costs, see the discussion in "Foreign Currency Exchange Rates" in Item 7,
"Management's Discussion and Analysis of Consolidated Financial Condition and
Results of Operations" in our Annual Report on Form 10-K for our most recently
completed fiscal year.
Gold Mining Companies are Subject to Extensive Environmental Laws and
Regulations
Our exploration, mining and processing operations are regulated in all
countries in which we operate under various federal, state, provincial and local
laws and regulations relating to the protection of the environment, which
generally include air and water quality, hazardous waste management and
reclamation. Furthermore, these laws and regulations are continually changing
and are generally becoming more restrictive. We have made, and expect to make in
the future, expenditures to comply with such laws and regulations, but we cannot
predict the amount of such future expenditures. Estimated future reclamation
costs are based principally on legal and regulatory requirements. The regulatory
environment in which we operate could change in ways that would substantially
increase our costs to achieve compliance. Delays in obtaining or failure to
obtain government permits and approvals or significant changes in regulation
could have a material adverse effect on our operations or financial position.
In addition, we are involved in several matters concerning
environmental obligations associated with former mining activities. Generally,
these matters concern developing and implementing remediation plans at the
-6-
various sites involved. We cannot predict the ultimate resolution of these
matters and we may not have sufficient reserves to cover any liabilities.
For additional information on our potential environmental liabilities,
see the notes to our Consolidated Financial Statements contained in our in our
Annual Report on Form 10-K for our most recently completed fiscal year and any
subsequent Quarterly Report on Form 10-Q for our most recently completed fiscal
quarter.
Risks Related to Newmont Operations
Certain Factors Outside of Our Control May Affect Our Ability to
Support the Carrying Value of Goodwill
At December 31, 2002, the carrying value of our goodwill was
approximately $3.0 billion or 30% of our total assets. Such goodwill has been
assigned to our Merchant Banking Segment ($1.6 billion) and Exploration Segment
($1.1 billion), and to various mine site reporting units ($300 million in the
aggregate). As further described in our Annual Report on Form 10-K for our most
recently completed fiscal year under "Critical Accounting Policies" in Item 7,
"Management's Discussion and Analysis of Consolidated Financial Condition and
Results of Operations" and in Note 3 to the Consolidated Financial Statements,
this goodwill arose in connection with our February 15, 2002 acquisition of
Normandy and Franco-Nevada, and it represents the excess of the aggregate
purchase price over the fair value of the identifiable net assets of Normandy
and Franco-Nevada as measured at February 15, 2002. Such goodwill was assigned
to reporting units based on independent appraisals performed by Behre Dolbear &
Company, Inc., a mineral industry consulting firm ("Behre Dolbear"). We
evaluate, on at least an annual basis, the carrying amount of goodwill to
determine whether current events and circumstances indicate that such carrying
amount may no longer be recoverable. This evaluation involves a comparison of
the fair value of our reporting units to their carrying values. The fair values
of the applicable reporting units are based in part on certain factors that may
be partially or completely outside of our control, such as the investing
environment, the discovery of proven and probable reserves, commodity prices and
other factors. In addition, we may not be able to easily replicate some of the
assumptions underlying the Merchant Banking and Exploration Segment February 15,
2002 appraisals, even though these assumptions were based on historical
experience and we consider these assumptions to be reasonable under the
circumstances. With respect to the Merchant Banking Segment, these assumptions
included (i) an initial investment of $300 million; (ii) additional annual
investments of $50 million commencing in year two (2003) of a seven-year time
horizon; (iii) an average long-term after-tax return of 37.3%; (iv) the
immediate reinvestment of average annual returns; and (v) discount rates ranging
from 8% to 9%. With respect to the Exploration Segment, these assumptions
included (i) 1.6 million recoverable ounces of additions to proven and probable
reserves through new discoveries in the first year following the acquisition;
(ii) an annual growth rate for such reserve additions of 23.1% over a ten-year
period; (iii) a fair value for each recoverable ounce of reserve additions of
approximately $58; and (iv) a discount rate of 15%.
Our assumptions set forth above are subject to risks and
uncertainties. In the absence of any mitigating valuation factors, our failure
to achieve one or more of the February 15, 2002 appraisal assumptions will over
time result in an impairment charge. Accordingly, we cannot give you any
assurance that significant non-cash impairment losses will not be recorded in
the future due to possible declines in the fair values of our reporting units.
For a more detailed description of the estimates, assumptions and related risks
involved in assessing the recoverability of the carrying value of goodwill, see
the discussion under "Critical Accounting Policies" in Item 7, "Management's
Discussion and Analysis of Consolidated Financial Condition and Results of
Operations" in our Annual Report on Form 10-K for our most recently completed
fiscal year.
Our Level of Indebtedness May Affect Our Business
As a result of our acquisitions, our level of indebtedness has
increased, although net indebtedness is a smaller percentage of our total
capitalization than it was prior to the acquisitions. As of September 30, 2003,
our debt was $1.4 billion. This level of indebtedness could have important
consequences for our operations, including:
-7-
o We may need to use a large portion of our cash flow to repay
principal and pay interest on our debt, which will reduce the amount of funds
available to finance our operations and other business activities;
o Our debt level may make us vulnerable to economic downturns and
adverse developments in our businesses and markets; and
o Our debt level may limit our ability to pursue other business
opportunities, borrow money for operations or capital expenditures in the future
or implement our business strategy.
We expect to obtain the funds to pay our expenses and to pay principal
and interest on our debt by utilizing cash flow from operations. Our ability to
meet these payment obligations will depend on our future financial performance,
which will be affected by financial, business, economic and other factors. We
will not be able to control many of these factors, such as economic conditions
in the markets in which we operate. We cannot be certain that our future cash
flow from operations will be sufficient to allow us to pay principal and
interest on our debt and meet our other obligations. If cash flow from
operations is insufficient, we may be required to refinance all or part of our
existing debt, sell assets, borrow more money or issue additional equity. We
cannot be sure that we will be able to do so on commercially reasonable terms,
if at all.
Our Operations Outside North America and Australia are Subject to the
Risks of Doing Business Abroad
Exploration, development and production activities outside of North
America and Australia are potentially subject to 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 by governmental entities,
including retroactive claims;
o expropriation or nationalization of property;
o currency fluctuations (particularly in countries with high
inflation);
o foreign exchange controls;
o restrictions on the ability of local operating companies to sell
gold offshore for U.S. dollars, and on the ability of such companies to
hold U.S. dollars or other foreign currencies in offshore bank accounts;
o import and export regulations, including restrictions on the export
of gold;
o restrictions on the ability to pay dividends offshore;
o environmental controls;
o risks of loss due to civil strife, acts of war, guerrilla
activities, insurrection and terrorism; and
-8-
o other risks arising out of foreign sovereignty over the areas in
which our operations are conducted.
Consequently, our exploration, development, and production activities
outside of North America and Australia 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 such activities, we may be subject to the exclusive jurisdiction of
courts outside North America or Australia or may not be successful in subjecting
persons to the jurisdiction of the courts in North America or Australia, which
could adversely affect the outcome of a dispute.
We have substantial investments in Indonesia, a nation that since 1997
has undergone financial crises and devaluation of its currency, outbreaks of
political and religious violence, changes in national leadership, and the
secession of East Timor, one of its former provinces. Despite democratic
elections in 1999, a change in government occurred in late July 2001, and civil
unrest, independence movements, and tensions between the civilian government and
the military continue. These problems heighten the risk of abrupt changes in the
national policy toward foreign investors, which in turn could result in
unilateral modification of concessions or contracts, increased taxation, or
expropriation of assets. If this were to occur with respect to our Contracts of
Work, our financial condition and results of operations could be materially
adversely affected.
During the last two years, Minera Yanacocha, of which we own a 51.35%
interest, has been the target of numerous local political protests, including
ones that blocked the road between the Yanacocha mine complex and the city of
Cajamarca in Peru. We cannot predict whether these incidents will continue, nor
can we predict the government's continuing positions on foreign investment,
mining concessions, land tenure, environmental regulation or taxation. The
continuation or intensification of protests or a change in prior governmental
positions could adversely affect our operations in Peru.
Recent violence reportedly committed by radical elements in Indonesia
and other countries, and the presence of U.S. forces in Iraq and Afghanistan may
increase the risk that operations owned by U.S. companies will be the target of
further violence. If any of our operations were so targeted, it could have an
adverse effect on our business.
Remediation Costs for Federal Superfund Law Liabilities May Exceed the
Provisions We Have Made
We have conducted extensive work at two inactive sites in the United
States. At one of these sites, remediation requirements have not been finally
determined, and, therefore, the final cost cannot be estimated. At a third site
in the United States, an inactive uranium mine and mill formerly operated by one
of our subsidiaries, remediation work at the mill is ongoing, but remediation at
the mine is subject to dispute and has not yet commenced. The environmental
standards that may ultimately be imposed at this site as a whole remain
uncertain and there is a risk that the costs of remediation may exceed the
provision our subsidiary has made for such remediation by a material amount.
Whenever a previously unrecognized remediation liability becomes known
or a previously estimated cost is increased, the amount of that liability or
additional cost is expensed and this can materially reduce net income in that
period.
Occurrence of Events for Which We are Not Insured May Affect Our Cash
Flow and Overall Profitability
We maintain insurance to protect ourselves against certain risks
related to our operations. This insurance is maintained in amounts that we
believe to be reasonable depending upon the circumstances surrounding each
identified risk. However, we may elect not to have insurance for certain risks
because of the high premiums associated with insuring those risks or for various
other reasons; in other cases, insurance may not be available for certain risks.
Some concern always exists with respect to investments in parts of the world
where civil unrest, war, nationalist movements, political violence or economic
crisis are possible. These countries may also pose heightened risks of
expropriation of assets, business interruption, increased taxation and a
unilateral modification of concessions
-9-
and contracts. We do not maintain insurance against political risk. Occurrence
of events for which we are not insured may affect our cash flow and overall
profitability.
Our Business Depends on Good Relations with Our Employees
We may experience difficulties in integrating labor policies,
practices, and strategies with our acquired subsidiaries. In addition, problems
with or changes affecting employees of one subsidiary may affect relations with
employees of other subsidiaries.
At December 31, 2002, unions represented approximately 37% of our
worldwide work force. On that date, we had 958 employees at our Carlin, Nevada
operations, 244 employees in Canada at our Golden Giant operation, 3,446
employees in Indonesia at our Batu Hijau operations, 47 employees in New Zealand
at our Martha operation, 351 employees in Bolivia at our Kori Kollo operation,
and 494 employees in Australia at our Golden Grove, Pajingo, Tanami and Yandal
operations combined, working under a collective bargaining agreement or similar
labor agreement.
Currently there are labor agreements in effect for all of these
workers except those in Carlin, Nevada. The Operating Engineers Local Union No.
3 of the International Union of Operating Engineers, AFL-CIO is the bargaining
agent for these employees. The Carlin labor agreement expired on September 30,
2002. We are currently in negotiations with the union to reach an acceptable
contract, but also have developed contingency plans in case of a work stoppage
or strike. We cannot predict when or if we will reach an agreement with the
union. If no such agreement is reached or if the negotiations take an excessive
amount of time, there may be a heightened risk of a prolonged work stoppage.
Our Earnings also Could be Affected by the Prices for Other
Commodities
Our revenues and earnings also could be affected by the prices of
other commodities such as copper and zinc, although to a lesser extent than by
the price of gold. The prices of copper and zinc are affected by numerous
factors beyond our control. For more information, see the discussion under
"Copper and Zinc" in Item 1, "Business" and the discussion under Item 2,
"Properties" in our Annual Report on Form 10-K for our most recently completed
fiscal year.
Title to Some of Our Properties May Be Defective or Challenged
Although we have conducted title reviews of our properties, title
review does not necessarily preclude third parties from challenging our title.
While we believe that we have satisfactory title to our properties, some risk
exists that some titles may be defective or subject to challenge. In addition,
some of our Australian properties could be subject to native title or
traditional landowner claims, but these claims would not deprive us of the
properties. For information regarding native title or traditional landowner
claims, see the discussion under the Australia section of Item 2, "Properties"
in our Annual Report on Form 10-K for our most recently completed fiscal year.
We Compete With Other Mining Companies
We compete with other mining companies to attract and retain key
executives and other employees with technical skills and experience in the
mining industry. We also compete with other mining companies for rights to mine
properties containing gold and other minerals. There can be no assurance that we
will continue to attract and retain skilled and experience employees, or to
acquire additional rights to mine properties.
Our Anti-Takeover Provisions Could Limit Amounts Offered in a Takeover
Article Ninth of our certificate of incorporation and our rights
agreement may make it more difficult for various corporations, entities or
persons to acquire control of us or to remove management. Article Ninth of our
-10-
certificate of incorporation requires us to obtain the approval of holders of
80% of all classes of our capital stock who are entitled to vote in the election
of directors, voting together as one class, to enter into certain types of
transactions generally associated with takeovers, unless our Board of Directors
approves the transaction before the other corporation, entity or person acquires
10% or more of our outstanding shares. In addition, the Board has declared a
dividend of one preferred share purchase right for each outstanding share of our
common stock under a rights agreement, dated as of February 13, 2002, between
Newmont Mining and Mellon Investor Services LLC, as the rights agent. The rights
agreement, in effect, imposes a significant penalty upon any person or group
that acquires 15% or more of our outstanding common stock without the approval
of the Board. While the anti-takeover provisions protect stockholders from
coercive or otherwise unfair takeover tactics, they may also limit the premium
over market price available to holders of common stock in a takeover situation.
USE OF PROCEEDS
Unless we state otherwise in a prospectus supplement, the net proceeds
from the sale of any securities will be used for general corporate purposes
including the repayment of debt, acquisitions, additions to working capital and
capital expenditures.
RATIOS OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table contains our ratios of earnings to fixed charges
for the periods indicated. Earnings in 2001, 1999 and 1998 were inadequate to
cover fixed charges with a deficiency of $43.8 million for 2001, $75.1 million
for 1999 and $689.7 million for 1998.
Year ended December 31,
Six months ended
June 30, 2003 2002 2001 2000 1999 1998
------------- ---- ---- ---- ---- ----
9.2 2.86 --- 1.40 --- ---
The following table contains our ratios of earnings to fixed charges
and preferred stock dividends for the periods indicated. Earnings in 2001, 1999
and 1998 were inadequate to cover fixed charges and preferred stock dividends
with a deficiency of $66.8 million for 2001, $98.1 million for 1999 and $712.7
million for 1998.
Year ended December 31,
Six months ended
June 30, 2003(1) 2002(1) 2001 2000 1999 1998
---------------- ------- ---- ---- ---- ----
9.2 2.78 --- 1.20 --- ---
(1) On May 15, 2002, we redeemed all issued and outstanding shares of our $3.25
convertible preferred stock. This redemption eliminated $7.5 million of annual
preferred stock dividends prospectively. Because we have had no preferred stock
outstanding since May 15, 2002, except for our special voting stock which has
no right to receive dividends, our ratio of earnings to fixed charges and
preferred stock dividends for the six months ended June 30, 2003 is the same as
our ratio of earnings to fixed charges for the same period.
For the purposes of these tables, fixed charges are calculated by
adding the following:
o interest expensed and capitalized,
o amortized premiums, discounts and capitalized expenses related to
indebtedness,
-11-
o an estimate of the interest within rental expense and
o preferred stock dividend requirements of consolidated
subsidiaries, if any.
For purposes of these tables, earnings are calculated by adding:
o pre-tax income from continuing operations before adjustment for
minority interests in consolidated subsidiaries or income or loss
from equity investees,
o fixed charges,
o amortization of capitalized interest,
o distributed income of equity investees and
o our share of pre-tax losses of equity investees for which charges
arising from guarantees are included in fixed charges
o and then subtracting:
o capitalized interest,
o preferred stock dividend requirements of consolidated
subsidiaries, if any, and
o minority interests in pre-tax income of subsidiaries that have
not incurred fixed charges.
The term "equity investees" means investments that we account for using the
equity method of accounting. The term "preferred stock dividend" means the
amount of pre-tax earnings that is required to pay the dividends on outstanding
preferred stock.
DESCRIPTION OF OUR CAPITAL STOCK
The rights of our stockholders will be governed by Delaware law, our
certificate of incorporation and our by-laws. The following is a summary of the
material terms of our capital stock. For additional information regarding our
capital stock, please refer to the applicable provisions of Delaware law, our
certificate of incorporation and by-laws and the rights agreement, dated as of
February 13, 2002, between us and Mellon Investor Services LLC, as rights agent,
relating to rights to purchase shares of our series A junior participating
preferred stock. Copies of our certificate of incorporation, our by-laws and our
rights agreement are exhibits to the registration statement of which this
prospectus is a part.
As of October 22, 2003, we had 755,000,000 shares of authorized
capital stock. Those shares consisted of:
o 5,000,000 shares of preferred stock, par value $5.00 per share, of
which one share of special voting stock was outstanding; and
o 750,000,000 shares of common stock, par value $1.60 per share, of
which (1) 365,960,090 shares were outstanding, including shares
evidenced by Australian CHESS depositary interests which represent
beneficial ownership of shares of common stock of Newmont Mining on a
ten-for-one basis and (2) 43,357,329 shares were issuable upon
conversion of the exchangeable shares of Newmont Mining Corporation of
Canada Limited (formerly known as Franco-Nevada Mining Corporation
Limited), which were issued in connection with our acquisition of
Franco-Nevada, have economic rights equivalent to those of our common
stock and are exchangeable on a one-for-one basis with shares of our
common stock.
The holder of the outstanding share of special voting stock exercises
the voting and other rights attached to the share as trustee for and on behalf
of the registered holders of outstanding shares of the exchangeable shares.
-12-
Common Stock
The following is a summary of the terms of our common stock. For
additional information regarding our common stock, please refer to our
certificate of incorporation, our by-laws and the applicable provisions of
Delaware law.
Dividend Rights
Holders of our common stock may receive dividends when, as and if
declared by our Board out of funds of Newmont Mining legally available for the
payment of dividends. 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.
As a Delaware corporation, we may pay dividends out of surplus or, if
there is no surplus, out of net profits for the fiscal year in which a dividend
is declared and/or the preceding fiscal year. Section 170 of the Delaware
General Corporation Law also provides that dividends may not be paid out of net
profits if, after the payment of the dividend, capital is less than the capital
represented by the outstanding stock of all classes having a preference upon the
distribution of assets.
Currently, we pay dividends on our common stock each quarter. The
determination of the amount and timing of future dividends will be made by our
Board of Directors from time to time and will depend on our future earnings,
capital requirements, financial conditions and other relevant factors.
Voting and Other Rights
Holders of our common stock are entitled to one vote per share and, in
general, a majority of votes cast with respect to a matter will be sufficient to
authorize action upon routine matters.
Holders of shares of our special voting share are entitled to vote, as
a single class, together with the holders of shares of our common stock on all
matters on which our stockholders are entitled to vote. The holders of record of
a majority of the outstanding shares of our capital stock entitled to vote at
the meeting of our stockholders must be present in person or represented by
proxy at the meeting in order to constitute a quorum for all matters to come
before the meeting. For purposes of determining the presence of a quorum,
"shares of our capital stock" includes shares of our common stock (including
shares represented by Australian CHESS depositary interests), as well as the
maximum number of shares of our common stock that the holder of the special
voting share is entitled to vote at the meeting on behalf of the holders of the
outstanding exchangeable shares. For additional information regarding our
special voting share, please see the discussion in "-- Special Voting Stock"
beginning on page 8 of this prospectus.
Special meetings of our stockholders may be called by our Board of
Directors or by the Chairman of the Board or by our President, and will be
called by the Chairman of the Board or by our President or Secretary upon a
written request stating the purposes of the proposed meeting and signed by a
majority of our Board of Directors or stockholders owning at least 25% of our
outstanding capital stock entitled to vote at the meeting.
Written notice of a meeting of our stockholders is given personally or
by mail, not less than 10 days nor more than 60 days before the date on which
the meeting is held, to each stockholder of record entitled to vote at the
meeting. The notice must state the time, place and purposes of the meeting. In
the event of a special meeting called upon the written request of our
stockholders, the notice will describe any business set forth in the statement
of purpose in the written stockholder request, as well as any additional
business that our Board of Directors proposes to be conducted at the meeting. If
mailed, the notice will be sent to our stockholders at their respective
addresses appearing on our stock records or to such other addresses as they may
designate in writing, and will be deemed given when mailed. A waiver of any
notice, signed by a stockholder before or after the time for the meeting, will
be deemed equivalent to that stockholder having received the notice.
-13-
Our Board of Directors is not classified. Directors are to be elected
by a plurality of those shares of our capital stock present and entitled to vote
at a meeting of stockholders, and our stockholders do not have the right to
cumulate their votes in the election of directors.
Liquidation
In the event of any liquidation, dissolution or winding up of Newmont
Mining, holders of our common stock would be entitled to receive proportionately
any assets legally available for distribution to our stockholders with respect
to shares held by them, subject to any prior rights of the holders of any of our
preferred stock then outstanding. Immediately prior to any liquidation,
dissolution or winding up of Newmont Mining, all holders of exchangeable shares
would become holders of our common stock pursuant to the terms of the
exchangeable shares and would therefore be entitled to share ratably in any
distribution to other holders of common stock.
Redemption
Newmont Mining common stock is not redeemable or convertible.
Preferred Share Purchase Rights
Each issued share of our common stock includes a preferred stock
purchase right. See "Anti-Takeover Provisions - Stockholders Rights Plan" below.
Other Provisions
All of the issued and outstanding shares of our common stock are
validly issued, fully paid and nonassessable. Holders of our common stock have
no preemptive rights with respect to any securities of Newmont Mining.
Listing
Our common stock trades on the New York Stock Exchange under the
symbol "NEM." ChaseMellon Stockholder Services, L.L.C. is the registrar,
transfer agent, conversion agent and dividend disbursing agent for the common
stock.
Our common stock also trades in the form of Australian CHESS
depositary interests on the Australian Stock Exchange under the symbol "NEM".
Newmont Mining CDIs
The Newmont Mining Australian CHESS depositary interests (the "CDIs")
are units of beneficial ownership in our common stock held by CHESS Depositary
Nominees Pty Ltd. (ACN 071346506) ("CDN"), a wholly owned subsidiary of the
Australian Stock Exchange Limited (ACN 008624691). The Newmont Mining CDIs
entitle holders to dividends and other rights economically equivalent to our
common stock on a ten-for-one basis, including the right to attend Newmont
Mining stockholders' meeting. The Newmont Mining CDIs are convertible at the
option of the holders into our common stock on a ten-for-one basis. CDN, as the
stockholder of record, will vote the underlying shares of our common stock in
accordance with the directions of the CDI holders.
Preferred Stock - General
Our preferred stock is issuable in series. Our board of directors has
the power to fix various terms for each series of preferred stock, including the
following:
-14-
o voting powers,
o designations,
o preferences,
o the relative participating and option or other rights,
o qualifications, and
o limitations and restrictions.
Special Voting Stock
The following is a summary of our special voting stock, which consists
of a share of preferred stock with special voting rights. For additional
information regarding our special voting stock, please refer to the certificate
of designations setting forth the terms of the special voting stock. The
certificate of designations is an exhibit to the registration statement of which
this prospectus is a part.
Computershare Trust Company of Canada, as trustee under a voting and
exchange trust agreement, holds the outstanding share of special voting stock.
The holder of the special voting share exercises the voting and other rights
attached to the share as trustee for and on behalf of the registered holders of
the exchangeable shares of our wholly-owned subsidiary, Newmont Mining
Corporation of Canada Limited, formerly known as Franco-Nevada Mining
Corporation Limited ("Newmont Canada"). The exchangeable shares have economic
rights equivalent to those of our common stock and are exchangeable on a
one-for-one basis with shares of our common stock. Upon the unanimous approval
of Newmont Mining's board of directors, Newmont Canada may from time to time
issue additional exchangeable shares. The following is a summary description of
the material provisions of the rights, privileges, restrictions and conditions
attaching to the special voting share and the related exchangeable shares as
they affect Newmont Mining.
Ranking
With respect to distributions of assets upon liquidation, dissolution
or winding up of Newmont Mining, the special voting share ranks (1) senior to
our common stock, (2) on parity with our other preferred stock and (3) junior to
any other class or series of capital stock of Newmont Mining.
Dividend Rights
The special voting share is not entitled to receive dividends.
Holders of exchangeable shares are entitled to receive dividends from
Newmont Canada which are equivalent to any declared by our Board of Directors on
our common stock. These dividends will be paid out of money, assets or property
of Newmont Canada properly applicable to the payment of dividends, or out of
authorized but unissued shares of Newmont Canada, as applicable. Holders of
exchangeable shares are not entitled to any dividends other than or in excess of
the foregoing dividends. The record date for the determination of the holders of
exchangeable shares entitled to receive payment of, and the payment date for,
any dividend declared on the exchangeable shares will be the same dates as the
record date and payment date, respectively, for the corresponding dividend
declared on shares of our common stock.
Voting Rights
Holders of exchangeable shares are not holders of our common stock
and, therefore, do not have the direct right to vote on matters relating to
Newmont Mining on which our stockholders are entitled to vote.
-15-
The holder of the special voting share has the right to vote together
with the holders of our common stock on all matters on which holders of our
common stock are entitled to vote. The holder of the special voting share is
entitled to cast a number of votes equal to the lesser of (1) the number of
exchangeable shares outstanding from time to time (except those exchangeable
shares held by us or our affiliates) and (2) 10% of the total number of votes
attached to the shares of our common stock then outstanding. The holder of the
special voting share will exercise the voting and others rights attached to the
share only on the basis of instructions received from holders of exchangeable
shares, as trustee for and on behalf of the registered holders of the
exchangeable shares.
Certain Restrictions
So long as any of the exchangeable shares not owned by us or our
affiliates are outstanding:
(1) without the approval of the holders of the exchangeable
shares and Newmont Canada (unless in each case the economic equivalent is
simultaneously issued, distributed or made, as the case may be, to the holders
of exchangeable shares), we will not:
o issue or distribute shares of our common stock, or
securities exchangeable for or convertible into or carrying
rights to acquire shares of our common stock, to the holders
of all or substantially all of the then outstanding shares
of our common stock by way of stock dividend or other
distribution, other than an issue of shares of our common
stock, or securities exchangeable for or convertible into or
carrying rights to acquire shares of our common stock, to
holders of shares of our common stock (a) who exercise an
option to receive dividends in shares of our common stock or
securities exchangeable for or convertible into or carrying
rights to acquire shares of our common stock, in lieu of
receiving cash dividends, or (b) pursuant to any dividend
reinvestment plan or similar arrangement;
o issue or distribute rights, options or warrants to the
holders of all or substantially all of the then outstanding
shares of our common stock entitling them to subscribe for
or to purchase shares of our common stock, or securities
exchangeable for or convertible into or carrying rights to
acquire shares of our common stock;
o issue or distribute to the holders of all or substantially
all of our then outstanding shares of common stock (a)
shares or securities (including evidences of indebtedness)
of Newmont Mining of any class (other than shares of our
common stock or securities convertible into or exchangeable
for or carrying rights to acquire shares of our common
stock), or (b) rights, options, warrants or other assets
other than those referred to above;
o subdivide, redivide or change our then outstanding shares of
common stock into a greater number of shares of our common
stock;
o reduce, combine, consolidate or change our then outstanding
shares of common stock into a lesser number of shares of our
common stock; or
o reclassify or otherwise change shares of our common stock or
effect an amalgamation, merger, reorganization or other
transaction affecting shares of our common stock.
(2) in the event that a tender offer, share exchange offer,
issuer bid, takeover bid or similar transaction with respect to shares of our
common stock is proposed by us or is proposed to us or our stockholders and is
recommended by our Board, or is otherwise effected or to be effected with the
consent or approval of the our Board, and the exchangeable shares are not
redeemed by Newmont Canada or purchased by us (or our wholly-owned subsidiary,
Newmont Holdings ULC), we will expeditiously and in good faith take all actions
and do all things as are reasonably necessary or desirable to enable and permit
holders of exchangeable shares (other than us and our affiliates) to participate
in the transaction to the same extent and on an economically equivalent basis as
the holders of shares of our common stock, without discrimination. Without
limiting the generality of the foregoing, we
-16-
will take all actions and do all things as are reasonably necessary or desirable
to ensure that holders of exchangeable shares may participate in each similar
transaction without being required to retract exchangeable shares as against
Newmont Canada or, if so required, to ensure that any retraction, shall be
effective only upon, and shall be conditional upon, the closing of that
transaction and only to the extent necessary to participate in the transaction.
Liquidation Rights
In the event of the liquidation, dissolution or winding-up of Newmont
Mining, (1) the holder of the special voting share will be entitled to receive
an amount equal to $0.001 and (2) all of the exchangeable shares will
automatically be exchanged for shares of our common stock. We will purchase each
exchangeable share on the fifth business date prior to the liquidation,
dissolution or winding up for a purchase price per share to be satisfied by the
delivery of one share of our common stock, together with all declared and unpaid
dividends on the exchangeable shares, if any.
In the event of the liquidation, dissolution or winding-up of Newmont
Canada, we (or Newmont Holdings ULC) have the right to purchase all, but not
less than all, of the outstanding exchangeable shares from the holders thereof
upon payment of a liquidation amount. The liquidation amount will be the amount
per exchangeable share that a holder of exchangeable shares is entitled to
receive pursuant to the provisions attached to the exchangeable shares on the
liquidation, dissolution or winding-up of Newmont Canada, to be satisfied by the
delivery of one share of our common stock, together with all declared and unpaid
dividends on the exchangeable shares, if any.
Redemption and Retraction
The special voting share is not redeemable or convertible, except, if
no exchangeable shares, other than exchangeable shares held by us or our
affiliates, or securities which could give rise to the issuance of any
exchangeable shares to any person are outstanding, the special voting share will
automatically be redeemed for $0.001.
Holders of exchangeable shares are entitled at any time, upon delivery
of a certificate representing their exchangeable shares and a duly executed
retraction request, to require Newmont Canada to redeem their exchangeable
shares. The retraction price will be the amount per exchangeable share that a
holder of exchangeable shares is entitled to receive pursuant to the provisions
attached to the exchangeable shares on a retraction of an exchangeable share, to
be satisfied by the delivery of one share of our common stock, together with all
declared and unpaid dividends on the exchangeable shares, if any. Newmont Canada
must deliver all retraction requests to us (or Newmont Holdings ULC), whereupon
we (or Newmont Holdings ULC), instead of Newmont Canada, will have the right to
purchase for the retraction price the exchangeable shares that are the subject
of the request. If we do not exercise this right, Newmont Canada is required to
effect the redemption.
On or at any time after the seventh anniversary of the date on which
the exchangeable shares were first issued, subject to acceleration in some
circumstances, Newmont Canada is required to redeem all the outstanding
exchangeable shares. The redemption price will be the amount per exchangeable
share that a holder of exchangeable shares is entitled to receive pursuant to
the provisions of the exchangeable shares on a redemption of exchangeable
shares, to be satisfied by the delivery of one share of our common stock,
together with all declared and unpaid dividends, if any. In this event, we (or
Newmont Holdings ULC) will have the overriding right to acquire the outstanding
exchangeable shares in exchange for the redemption price on the redemption date.
If we exercise this right, Newmont Canada's obligation to redeem the
exchangeable shares will terminate.
Listing
The exchangeable shares are listed on the Toronto Stock Exchange under
the symbol "NMC".
Anti-Takeover Provisions
Article Ninth of our certificate of incorporation and our rights
agreement may make it more difficult for various corporations, entities or
persons to acquire control of us or to remove management.
-17-
Approval of Various Mergers, Consolidations, Sales and Leases
Article Ninth of our certificate of incorporation requires us to get
the approval of the holders of 80% of all classes of our capital stock who are
entitled to vote in elections of directors, voting together as one class, 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 approves the transaction before the other corporation,
person or entity becomes 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 the
holders of 80% of all classes of our capital stock who are entitled to vote in
elections of directors, voting together as one class.
Stockholders Rights Plan
On January 30, 2002, our Board declared a dividend of one preferred
share purchase right for each outstanding share of our common stock. The
dividend was paid on February 15, 2002 to the stockholders of record on February
15, 2002. The rights were issued pursuant to the terms of the Rights Agreement,
dated as of February 13, 2002 between Newmont Mining and Mellon Investor
Services LLC, as the rights agent.
Our Board has adopted this rights agreement to protect stockholders
from coercive or otherwise unfair takeover tactics. In general terms, it 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 of
Directors. The rights agreement should not interfere with any merger or other
business combination approved by our Board.
The following is a summary description of our rights agreement and
should be read together with the entire rights agreement, which is included as
an exhibit to the registration statement of which this prospectus forms a part.
The Rights. Our Board authorized the issuance of a right with respect
to each share of common stock outstanding on February 15, 2002. The rights
initially trade with, and are inseparable from, shares of our common stock. The
rights are evidenced only by certificates that represent shares of our common
stock. New rights will accompany any new shares of our common stock that we
issue after February 15, 2002 until the Distribution Date described below.
Exercise Price. Each right allows its holder to purchase from Newmont
Mining one one-thousandth of a share of Series A Junior Participating Preferred
Stock ("preferred share") 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 are not exercisable until:
-18-
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, or
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 the 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 prior to the acquisition.
o Flip On. If we are later acquired in a merger of
similar transaction after the 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 the 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
$1.00 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; and
o if shares of our common stock are exchanged by 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 should
approximate the value of one share of common stock.
Expiration. The rights will expire on February 13, 2012.
Redemption. Our Board of Directors 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.
-19-
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 or a reclassification of the preferred shares or common stock. No
adjustments to the purchase price of less than 1% will be made.
Amendments. The terms of the rights agreement may be amended by our
Board without the 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, the Board may not cause a person or group to become an Acquiring
Person by lowering this threshold below the percentage interest that the 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.
DESCRIPTION OF COMMON STOCK WARRANTS
We may issue warrants for the purchase of common stock. The warrants
may be issued independently or together with any securities offered by any
prospectus supplement. 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. The following is a summary
of the material terms of the separate common stock warrant agreements. This
summary is qualified in its entirety by reference to the form of common stock
warrant agreement, a copy of which is an exhibit to our registration statement
of which this prospectus forms a part.
General
Under the common stock warrant agreement, warrants may be issued in
one or more series. The prospectus supplement 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:
o the type and number of warrants,
o 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,
o the expiration date of each warrant,
o the exercise date of each warrant,
o the offering price and currency of each warrant,
o if applicable, the designation and terms of the securities with
which each warrant can be issued,
o any provision dealing with the date on which the warrants and
related securities will be separately transferable,
o any provision granting a mandatory or an optional redemption
provision,
o the identity of the common stock warrant agent,
-20-
o the form of the warrant certificates and
o 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:
o payment of the exercise price,
o certain information required as described on the reverse side of
the warrant certificates,
o the number of warrants to be exercised and
o 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:
o to cure any ambiguity;
o to correct or supplement any provision which may be defective or
inconsistent with any other provisions; or
o 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.
-21-
DESCRIPTION OF DEBT SECURITIES AND GUARANTEES
General
Newmont Mining may offer:
o senior debt securities guaranteed by Newmont USA Limited and
o subordinated debt securities guaranteed by Newmont USA Limited.
Any senior debt securities will be issued under an indenture between
Newmont Mining, Newmont USA and Citibank, N.A., as trustee. Any subordinated
debt securities will be issued under a separate indenture between Newmont
Mining, Newmont USA and Citibank, N.A., as trustee. All references in this
section to debt securities are references to both the senior debt securities and
the subordinated debt securities. All references to the indentures are
references to both the indenture for senior debt securities and the indenture
for the subordinated debt securities. All references to the trustee include both
the trustee for the senior debt securities and the trustee for the subordinated
debt securities. All references to "we", "us" or "our" are references to Newmont
Mining Corporation.
The following description of the debt securities summarizes certain of
the material provisions of the indentures and the debt securities. This summary
of the indentures and the debt securities is qualified in its entirety by
reference to the Trust Indenture Act of 1939 and the forms of indentures. We
have filed the indentures as exhibits to our registration statement of which
this prospectus forms a part.
The debt securities will be our unsecured indebtedness. The senior
debt securities will rank equally with all of our other unsecured and
unsubordinated indebtedness. The subordinated debt securities will be
subordinate in right of payment to our senior debt securities as well as our
other indebtedness that we now or may have in the future. The subordination
provisions of the subordinated debt securities are discussed in greater detail
below.
The guarantee of the senior debt securities will constitute an
unsecured, unsubordinated obligation of Newmont USA and will rank equally with
all other unsecured and unsubordinated obligations of Newmont USA. The guarantee
of the subordinated debt securities will constitute an unsecured obligation of
Newmont USA and will be subordinated in right of payment to all senior or
secured indebtedness that Newmont USA has now or may have in the future. The
subordination provisions relating to the guarantee of the subordinated debt
securities are discussed in greater detail below.
Neither indenture limits the amount of debt securities that we may
issue under such indenture. Unless we state otherwise in the prospectus
supplement, neither indenture limits the amount of other debt that we can issue.
Both indentures allow us to issue debt securities in one or more
series with different terms. The indentures provide that debt securities of a
single series can be issued at different times with different interest rates,
redemption and repayment provisions. The particular terms of any series of debt
securities being offered will be set forth in the prospectus supplement that
relates to that series. These terms will include some or all of the following:
o the title of the debt securities and whether such debt securities
are senior or subordinated,
o the total principal amount and permitted denomination of the debt
securities,
o the percentage of the principal amount of the debt securities at
which the debt securities will be issued and any payments due if
the maturity of the debt securities is accelerated,
o the currency or currencies in which the principal and interest on
the debt securities will be payable,
o the dates on which the principal of the debt securities will
mature,
o the interest rate for the debt securities or the method that will
be used to determine the interest rate,
-22-
o the dates on which interest on the debt securities will be
payable and the manner in which interest will be paid,
o any mandatory or optional repayment or redemption provisions,
o any sinking fund provisions,
o any index used to determine the amount of payments of principal
and/or interest,
o any additional payment provisions,
o any provision relating to the issuance of discounted debt
securities and
o in the case of debt securities that are convertible into common
stock, the conversion price, the period during which the debt
securities may be converted and any other terms of conversion
which may differ from the applicable indenture.
Some of the debt securities may be sold at a substantial discount
below their stated principal amount and may provide for the payment of no
interest or interest at a rate which at the time of issuance is below market
rates. We will describe the U.S. federal income tax consequences and other
special considerations applicable to any discounted debt securities in the
prospectus supplement relating to the discounted debt securities.
Newmont USA Guarantees
Newmont USA will unconditionally guarantee on an unsubordinated basis
the due and punctual payment of the principal of, any premium and any interest
on the senior debt securities, when and as these payments become due and
payable, whether at maturity, upon redemption or declaration of acceleration, or
otherwise. The guarantees of the senior debt securities will rank equally in
right of payment with all other unsecured and unsubordinated indebtedness of
Newmont USA.
Newmont USA will unconditionally guarantee on a subordinated basis the
due and punctual payment of the principal of, any premium and any interest on
the subordinated debt securities, when and as these payments become due and
payable, whether at maturity, upon redemption or declaration of acceleration, or
otherwise. The guarantee of the subordinated debt securities will be
subordinated as described in greater detail below.
Newmont USA's obligations under the guarantee of the debt securities
will be as principal obligor and not merely as surety, and will be enforceable
irrespective of any invalidity, irregularity or unenforceability of the debt
securities or the applicable indenture. Newmont USA also will waive any right to
require a proceeding against Newmont Mining before its obligations under the
guarantees shall become effective.
Convertibility of the Debt Securities
The holders of debt securities of a specified series that are
convertible into shares of common stock of Newmont Mining will be entitled at
certain times specified in the prospectus supplement to convert any such
securities into common stock. The conversion price and other terms of the
conversion will be set forth in the prospectus supplement.
Subordination of Subordinated Debt Securities
The indebtedness represented by the subordinated debt securities will
be subordinated in right of payment to the prior payment in full of all of
senior indebtedness of Newmont Mining.
The term "senior indebtedness" means the principal of and any premium
and interest on any of our indebtedness outstanding on the date of the
subordinated debt securities indenture or to be created, incurred or
-23-
assumed by us after the date of the indenture unless the terms of such
indebtedness specifically state that it is not senior in right of payment to the
subordinated debt securities.
Upon the insolvency, liquidation, bankruptcy, reorganization or
similar proceeding relating to us or our property:
o the holders of our senior indebtedness will be entitled to
receive payment in full of all obligations before payment is made
to any holders of the subordinated debt securities and
o until all obligations with respect to our senior indebtedness are
paid in full, any payment to which the holders of the
subordinated debt securities would be entitled shall be made to
the holders of our senior indebtedness.
In addition, we may not make any payment on account of the
subordinated debt securities, if:
o any of our senior indebtedness is not paid when due or
o any other default on our senior indebtedness occurs and the
maturity of such senior indebtedness is accelerated.
If there is a default with respect to any of our senior indebtedness
other than the two types of default described immediately above and the maturity
of the indebtedness may be accelerated immediately, a representative of the
applicable senior indebtedness has the right to send to us written notice
stating that there has been a default. After receipt of such notice, we may not
make any payments on the subordinated debt securities until the earlier of:
o 179 days after the receipt of the notice,
o the date on which the default which gave rise to the notice is no
longer continuing,
o the date that the default has been waived and any acceleration
has been rescinded in writing or
o the date when the applicable senior indebtedness has been paid in
full.
Not more than one blockage period notice may be given in any
consecutive 360-day period, irrespective of the number of defaults with respect
to our senior indebtedness during such period.
After all of our senior indebtedness is paid in full and all
commitments in respect of the senior indebtedness have expired or terminated and
until the subordinated debt securities are paid in full, holders of the
subordinated debt securities will be subrogated to the rights of holders of our
senior indebtedness to receive distributions applicable to the senior
indebtedness.
Subordination of Guarantee of Subordinated Debt Securities
Newmont USA's guarantee of the subordinated debt securities will be
subordinated in right of payment to the prior payment in full of all of the
senior indebtedness of Newmont USA.
The term "senior indebtedness" means, with respect to Newmont USA, the
principal of and any premium and interest on any indebtedness of Newmont USA
outstanding on the date of the subordinated debt securities indenture or to be
created, incurred or assumed by Newmont USA after the date of the indenture
unless the terms of such indebtedness specifically state that it is not senior
in right of payment to the subordinated debt securities.
Upon the insolvency, liquidation, bankruptcy, reorganization or
similar proceeding relating to Newmont USA or its property:
-24-
o the holders of senior indebtedness will be entitled to receive
payment in full of all obligations before payment is made under
the guarantee of the subordinated debt securities and
o until all obligations with respect to senior indebtedness are
paid in full, any payment to which the holders of subordinated
debt securities would be entitled pursuant to the guarantee of
the subordinated debt securities will be made to the holders of
senior indebtedness.
In addition, Newmont USA may not make any payment on account of the
subordinated debt securities, if:
o any senior indebtedness of Newmont USA is not paid when due or
o any other default on senior indebtedness of Newmont USA occurs
and the maturity of such senior indebtedness is accelerated.
If there is a default with respect to any senior indebtedness of
Newmont USA other than the two types of default described immediately above and
the maturity of the indebtedness may be accelerated immediately, a
representative of the applicable senior indebtedness has the right to send
Newmont USA written notice stating that there has been a default. After receipt
of such notice, Newmont USA may not make any payments on the guarantee of the
subordinated debt securities until the earlier of:
o 179 days after the receipt of the notice,
o the date on which the default which gave rise to the notice is no
longer continuing,
o the date that the default has been waived and any acceleration
has been rescinded in writing or
o the date when the applicable senior indebtedness has been paid in
full.
Not more than one blockage period notice may be given in any
consecutive 360-day period, irrespective of the number of defaults with respect
to senior indebtedness of Newmont USA during such period.
After all senior indebtedness of Newmont USA is paid in full and all
commitments in respect of the senior indebtedness have expired or terminated and
until Newmont USA's obligations under the guarantee of the subordinated debt
securities are paid in full, holders of the subordinated debt securities will be
subrogated to the rights of holders of senior indebtedness of Newmont USA to
receive distributions applicable to the senior indebtedness.
Global Notes, Delivery and Form
The debt securities may be issued in the form of one or more global
notes that will be deposited with a depositary identified in a prospectus
supplement. Each note will be registered in the name of the depositary's
nominee. Unless a global note is exchanged in whole or in part for debt
securities in definitive form, a global note may generally be transferred only
as a whole and only to another nominee of the depositary or to a successor
depositary or its nominee.
Unless otherwise stated in the applicable prospectus supplement, the
depositary will be The Depository Trust Company, New York, New York. Currently,
it limits the maximum denomination of any single global note to $500 million.
Beneficial interests in global notes will be shown on, and transfers of global
notes will be effected only through, records maintained by DTC and its
participants.
DTC has provided us the following information: DTC is a limited
purpose trust company organized under the New York Banking Law, a "banking
organization" within the meaning of the New York Banking Law, a member of the
United States Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered under Section 17A of the Securities Exchange Act of 1934. DTC holds
securities that its participants deposit with DTC. DTC also facilitates the
clearance and recording
-25-
of the settlement among its participants of securities transactions, such as
transfers and pledges, in deposited securities through computerized records for
participant's accounts. This eliminates the need for physical exchange of
certificates. Direct participants include securities brokers and dealers, banks,
trust companies, clearing corporations and certain other organizations. Other
organizations such as securities brokers and dealers, banks and trust companies
that work through a participant, either directly or indirectly use DTC's
book-entry system. The rules that apply to DTC and its participants are on file
with the SEC.
Pursuant to DTC's procedures, upon issuance of debt securities
represented by a global note in connection with the sale of the debt securities
to one or more underwriters, DTC will credit the accounts of the participants
designated by the underwriters with the principal amount of the debt securities
purchased by the underwriters. Ownership of beneficial interests in a global
note will be shown
o on DTC's records with respect to participants;
o by the participants with respect to indirect participants and
certain beneficial owners; and
o by the indirect participants with respect to all other beneficial
owners.
The laws of some states require that certain persons take physical
delivery in definitive form of the securities which they own. Consequently, the
ability to transfer beneficial interests in a global note may be limited.
Under the indentures, if the nominee of DTC is the registered owner of
a global note, the nominee will be considered the sole owner or holder of the
debt securities. Except as provided below, owners of a global note will not be
entitled to have debt securities registered in their names, will not receive or
be entitled to receive physical delivery of debt securities in definitive form,
and will not be considered the owners or holders thereof under the indentures
for any purpose, including with respect to the giving of any directions,
instructions or approval to the trustee. However, DTC has advised us that
pursuant to its customary practice with respect to the giving of consents and
votes, it will deliver an omnibus proxy to the trustee assigning the related
holder's voting rights to the participant to whose account the debt securities
are credited on the record date. Each proxy will include a list of participants'
positions in the relevant security as of the record date for a consent or vote.
We will wire to DTC's nominee principal and interest payments with
respect to global notes. We and the trustee will treat DTC's nominee as the
owner of the global notes for all purposes. Accordingly, we, the trustee and any
paying agent will have no direct responsibility or liability to pay amounts due
on the global notes to owners of beneficial interests in the global notes or for
maintaining and reviewing any records relating to the beneficial ownership
interest.
It is DTC's current practice, upon receipt of any payment of principal
or interest, to credit participants' accounts on the payment date according to
their holdings of beneficial interests in the global notes as shown on DTC's
records. DTC's current practice is to credit such accounts, as to interest, in
next-day funds and, as to principal, in same-day funds. Payments by participants
to owners of beneficial interests in the global notes will be governed by
standing instructions and customary practices between the participants and the
owners of beneficial interests in the global notes, as is the case with
securities held for the account of customers registered in "street name."
However, payments will be the responsibility of the participants and not of DTC,
the underwriters, the trustee or us.
Debt securities represented by a global note will be exchangeable for
debt securities in definitive form with the same terms in authorized
denominations only if:
o DTC notifies us that it is unwilling or unable to continue as
depositary, and we do not appoint a successor depositary within
90 days or
o we determine not to have the debt securities represented by
global notes.
-26-
If any of these events occur, DTC will generally notify all direct
participants of the availability of definitive debt securities. These securities
will be issued in denominations of $1,000 and multiples thereof, in registered
form only, and without coupons. We will maintain one or more offices or agencies
in New York City to facilitate the transfer or exchange of the global notes. You
will not be required to pay any service charges for any transfer or exchange,
but we may require you to pay any tax, other governmental charge or payment in
connection with the exchange or transfer.
Same-Day Settlement in respect of Global Notes
Secondary trading in definitive long-term notes and debentures of
corporate issuers is generally settled in clearing-house or next-day funds. In
contrast, debt securities represented by global notes held by DTC will trade in
DTC's Same-Day Funds Settlement System until maturity, and DTC therefore will
require that secondary market trading activity in such debt securities settle in
immediately available funds. No assurance can be given as to the effect, if any,
of settlement in immediately available funds on trading activity in debt
securities represented by global notes.
Restrictive Covenants Required by the Indenture
The indenture for the senior debt securities requires us to comply
with certain restrictive covenants. Some of the provisions are described below.
All series of senior debt securities issued under the indenture will be entitled
to the benefits of the covenants described below except for any series of senior
debt securities that provides that they are not entitled to the benefits of the
covenants described below.
Definition of Attributable Debt
"Attributable Debt" means, with respect to any lease, the present
value of the total net rental payments during the remaining term of the lease.
The present value will be determined by using the discount rate implicit in the
terms of the lease as determined by two of our officers and will be compounded
semiannually. The net amount of rent we may pay under any lease for any period
is the amount of rent payable for the period but excluding payments for
maintenance, repairs, insurance, taxes, assessments, water rates or similar
charges. For any lease which we may terminate by paying a penalty, the net
amount of rent will include the penalty, but no rent will be included after the
first date that the lease may be terminated.
Definition of Consolidated Net Tangible Assets
"Consolidated Net Tangible Assets" means the aggregate amount of
assets minus the following:
o applicable reserves and other properly deductible items,
o all current liabilities excluding (1) those that the borrower may
extend or renew to a time more than 12 months after the time the
amount of the liability is being computed, (2) current maturities
of long-term indebtedness and (3) capital lease obligations and
o all goodwill shown on our balance sheet.
Definition of Funded Debt
"Funded Debt" means all indebtedness for money borrowed having a
maturity of more than 12 months from the determination date or having a maturity
of less than 12 months but that the borrower may renew or extend beyond 12
months.
-27-
Definition of Principal Property
"Principal Property" means any mine, plant or other facility, the land
upon which it stands and the fixtures that are a part of it, (1) which is used
primarily for mining and processing and is located in the U.S. and (2) the net
book value of which exceeds 5% of Consolidated Net Tangible Assets. Principal
Property does not include (1) any mine, plant or facility which, in the opinion
of our board of directors, is not of material importance to our total business
or (2) any portion of a particular mine, plant or facility which is not of
material importance to the use or operation of the mine, plant or facility.
Definition of Restricted Subsidiary
"Restricted Subsidiary" means any Subsidiary (1) with substantially
all of its property located, or carrying on substantially all of its business,
within the U.S. and (2) which owns a Principal Property. "Restricted
Subsidiary", however, does not include any Subsidiary whose primary business
consists of (1) financing operations in connection with leasing and conditional
sales transactions on behalf of us and our Subsidiaries, (2) purchasing accounts
receivable or making loans secured by accounts receivable or inventory or (3)
being a finance company.
Definition of Subsidiary
"Subsidiary" is defined as any corporation or entity in which we or
one or more of our Subsidiaries directly or indirectly owns a majority of the
voting interests.
Limitation on Liens
The indenture for the senior debt securities will prohibit us and any
of our Restricted Subsidiaries from incurring, issuing, assuming or guarantying
any debt for money borrowed or any debt evidenced by notes, bonds, debentures or
other similar documents ("Debt") secured by any mortgage, security interest or
other liens (collectively, "Mortgages") on any Principal Property or shares of
stock or indebtedness of any Restricted Subsidiary, without securing all
outstanding series of debt securities under the applicable indenture (other than
any series of debt securities that provide that the debt securities of the
series are not entitled to the benefit of this covenant) equally and ratably
with (or prior to) the secured Debt to be incurred, issued, assumed or
guaranteed. This restriction, however, will not apply if the sum of the
following does not exceed 10% of Consolidated Net Tangible Assets:
o the aggregate principal amount of such secured Debt,
o all secured Debt which would otherwise be prohibited, and
o all of our and our Restricted Subsidiary's Attributable Debt in
respect of sale and leaseback transactions which would otherwise
be prohibited by the covenant limiting sale and leaseback
transactions described below.
The restriction described above also will not apply to debt for
borrowed money secured by the following:
o Mortgages on property, stock or Debt of any entity existing at
the time it becomes a Restricted Subsidiary,
o Mortgages to secure indebtedness of a Restricted Subsidiary to us
or to another Restricted Subsidiary,
o Mortgages for taxes, assessments or governmental charges or
levies (1) that are not yet due and delinquent or (2) the
validity of which is being contested in good faith,
o Mortgages of materialmen, mechanics, carriers, workmen,
repairmen, landlords or other similar Mortgages, or deposits to
obtain the release of these Mortgages,
-28-
o Mortgages arising under attachment or restraint or similar legal
process and the execution or enforcement of which is stayed and
which are being contested in good faith,
o Mortgages (1) to secure public or statutory obligations, (2) to
secure payment of workmen's compensation, (3) to secure
performance in connection with tenders, leases of real property,
bids or contracts or (4) to secure (or in lieu of) surety or
appeal bonds, and Mortgages made in the ordinary course of
business for similar purposes,
o Mortgages in favor of the United States, any state in the United
States, or any foreign governmental entity to secure payments
pursuant to any contract or statute (including Debt of the
pollution control or industrial revenue bond type) or to secure
any debt incurred to finance the purchase price or the cost of
construction of the property subject to the Mortgage,
o Mortgages on property (including capitalized leases), stock or
Debt of a corporation (1) existing at the time we or our
Restricted Subsidiary acquired the entity, (2) that secure the
payment of the purchase price, construction cost or improvement
cost of the property, stock or Debt or (3) that secure any Debt
incurred prior to, at the time of, or within one year after we or
our Restricted Subsidiary acquired the property, shares or Debt,
completed the construction on or commenced commercial operation
of the property for the purpose of financing the purchase price
or construction cost,
o Mortgages existing at the date of the applicable indenture and
o any extension, renewal or replacement of any of the Mortgages
enumerated above that does not increase the Debt and that is
limited to all or a part of the same property, stock or Debt that
secured the original mortgage.
The restrictions discussed above also will not apply to (1) any
gold-based loan or forward sale arrangement and (2) Mortgages on property that
we or any Restricted Subsidiary own or lease to secure our or a Restricted
Subsidiary's proportionate share of any payments required to be made to any
Person incurring the expense of developing, exploring or conducting operations
for the recovery, processing or sale of the mineral resources of the property.
Limitation on Sales and Leasebacks
The indenture for the senior debt securities will prohibit us and any
of our Restricted Subsidiaries from entering into any arrangement with any third
party lender or investor under which we or any Restricted Subsidiary will lease
for a period, including renewals, in excess of three years, any Principal
Property if we or the Restricted Subsidiary sold or will sell or transfer the
Principal Property more than 270 days after the acquisition of the Principal
Property or after completion of construction and commencement of full operation
of the Principal Property, to the lender or investor or to any person to whom
funds have been or will be advanced by the lender or investor on the security of
the Principal Property (herein referred to as a "sale and lease-back
transaction"), unless:
o we or any Restricted Subsidiary could create Debt secured by a
mortgage on the Principal Property to be leased back in an amount
equal to the Attributable Debt with respect to such sale and
leaseback transaction without equally and ratably securing the
debt securities of all series pursuant to the provisions of the
covenant on limitation on liens described above or
o we apply within 180 days after the sale or transfer an amount
equal to the greater of (1) the net proceeds of the sale of the
Principal Property sold and leased back pursuant to the
arrangement or (2) the fair market value of the Principal
Property so sold and leased back at the time of entering into the
arrangement to:
(a) the purchase of different property, facilities or equipment which
has a value at least equal to the net proceeds of the sale or
-29-
(b) the retirement of our Funded Debt or that of a Restricted
Subsidiary (other than as a result of payment at maturity or pursuant to
any mandatory sinking fund or prepayment provision).
The amount to be applied to the retirement of Funded Debt, however,
will be reduced by:
o the principal amount of any debt securities of any series
delivered within 180 days after such sale to the trustee for
retirement and cancellation,
o if the debt securities of any series are original issue discount
debt securities or provide that an amount other than the face
value is payable upon maturity or a declaration of acceleration,
the amount that is due and payable with respect to such series
pursuant to Section 4.1 of each of the indentures delivered
within 180 days after such sale to the trustee for retirement and
cancellation and
o the principal amount of Funded Debt, other than the debt
securities, voluntarily retired within 180 days after such sale.
Merger and Consolidation
Newmont Mining
We may consolidate or merge with or into any other entity and may
sell, transfer or lease all of our property or substantially all of our property
to any entity, if:
o the entity, if other than us, which resulted from or received the
property expressly assumes by supplemental indenture the due and
punctual payment of the principal of and any premium or interest
on the debt securities and the performance and observance of each
agreement to be performed or observed by us under the debt
securities and the indentures; and
o immediately after the completion of the transaction, no Event of
Default and no event which, after notice or lapse of time or
both, would become an Event of Default shall have occurred and be
continuing.
Newmont USA
Newmont USA may consolidate or merge with or into any other
corporation and may sell, transfer or lease all of its property or substantially
all of its property, if:
o the entity, if other than Newmont USA, which resulted from or
received the property expressly assumes by supplemental agreement
the due and punctual performance and observance of each agreement
to be performed or observed by Newmont USA under the debt
securities and the indentures; and
o immediately after the completion of the transaction, no Event of
Default and no event which, after notice or lapse of time or
both, would become an Event of Default shall have occurred and be
continuing.
Event of Default
"Event of Default", when used in each of the indentures with respect
to any series of debt securities, will mean any of the following:
o failure to pay interest on any debt security of the series for 30
days after it is due,
o failure to pay the principal or any premium on any debt security
of the series when it is due,
-30-
o failure to pay any sinking fund payment on any debt security of
the series when it is due,
o failure to perform any other covenant in the applicable indenture
for the benefit of the series of debt securities that continues
for 90 days after we have been given written notice of that
failure,
o events of bankruptcy, insolvency or reorganization of Newmont
Mining or Newmont USA.
o Newmont USA's guarantee of the debt securities of the series
ceases to be in full force or effect except as contemplated by
the terms thereof or Newmont USA denies or disaffirms its
obligations under the guarantee, or
o any other Event of Default specified for the series of debt
securities.
Within 90 days after a default occurs with respect to any series of
debt securities, the trustee must notify the holders of the debt securities of
the series of the default if we have not remedied it. Default is defined to
include the events listed above without any grace periods. The trustee may
withhold notice to the holders of the debt securities of any default except in
the payment of principal, premium, interest or sinking fund payment if it in
good faith considers the withholding of notice in the interest of all of the
holders of the debt securities of the series. We are required to file an annual
certificate with the trustee about any default by us under any provisions of the
applicable indenture.
If any Event of Default occurs and continues for any series of debt
securities, the trustee or the holders of at least 25% of the principal amount
of the debt securities of the outstanding series may declare the principal and
interest accrued on all the debt securities of that series to be due and payable
immediately. If this happens, subject to certain conditions, the holders of at
least a majority of the aggregate principal amount of the debt securities of
that series can annul the declaration. In addition, past defaults other than in
payments of principal and interest may also be waived by the same vote.
If an Event of Default occurs and continues for any series of debt
securities, the holders of at least a majority of the principal amount of the
affected series of debt securities then outstanding may direct the time, method
and place of conducting any proceeding or any remedy available to the trustee,
or exercising any power given to or conferred upon the trustee under the
indentures, for the series of debt securities.
The trustee does not have to exercise any of its rights or powers
under either of the indentures at the direction of any holders of notes unless
the holders offer the trustee reasonable indemnity or reasonable security
against expenses and liabilities.
The Trust Indenture Act of 1939 requires that we file with the trustee
annually a written statement regarding the presence or absence of certain
defaults.
Defeasance
Defeasance and Discharge of Obligations
Under the indentures, Newmont Mining will be discharged from its
non-administrative obligations under the debt securities of any series, and
Newmont USA will be discharged from its obligations under the guarantee of debt
securities of that series, if we deposit with the trustee in trust sufficient
money and/or U.S. government securities to pay the interest and principal due on
the stated due date of those payments. This trust may only be established if,
among other things, we deliver to the trustee an opinion of counsel stating
that, due to an Internal Revenue Service ruling or a change in federal income
tax law, holders of the debt securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of this
defeasance and will be subject to federal income tax, as if this defeasance had
not occurred.
-31-
Defeasance of Certain Covenants and Certain Events of Default
The indenture for the senior debt securities provides that we may be
released from our obligation to comply with the covenants limiting liens and
sale and leaseback transactions, and with any related Event of Default if we
deposit with the trustee in trust money and/or U.S. government securities which
provide for payment of the principal of and each installment of interest on the
debt securities due on the stated maturity of such payments. Our other
obligations under the indenture and the senior debt securities of such series
and other Events of Default and Newmont USA's obligations under the related
guarantee would remain in full force and effect. The trust may only be
established if, among other things, we have delivered to the trustee an opinion
of counsel stating that the holders of the senior debt securities of such series
will not recognize income, gain, or loss for federal income tax purposes as a
result of a deposit and defeasance of the covenants and the Event of Default
noted above and will be subject to federal income tax as would have been the
case if such deposit and defeasance had not occurred.
If we exercise the option described in this section and the debt
securities of a series are declared due and payable because of the occurrence of
an Event of Default other than the Event of Default related to the covenants
limiting liens and sale and leaseback transactions, the amount of money and U.S.
government securities on deposit with the trustee will be sufficient to pay
amounts due on the senior debt securities of a series at the time of their
stated maturity but may not be sufficient to pay amounts due on the debt
securities of such series at the time of the acceleration resulting from the
Event of Default.
Changes to Indentures
Under each of the indentures, Newmont Mining, Newmont USA and the
trustee may modify the rights and obligations of Newmont Mining and Newmont USA
and the rights of the holders of debt securities with the consent of the holders
of at least a majority of the principal amount of the outstanding debt
securities of all series issued under the indentures affected by the
modification. However, we must get the consent of the holder of each debt
security affected to make the following changes to the debt securities:
o an extension of the fixed maturity of any debt security,
o a reduction of the principal amount payable on any debt security,
o a reduction in the rate of interest payable on any debt security,
o a change in currency in which payments are made,
o an extension of the time of payment of interest,
o a modification that affects adversely any right of a holder of a
debt security to repayment,
o a reduction in the principal amount of an original issue discount
debt security due and payable upon a acceleration of the
maturity,
o an adverse change in or elimination of conversion rights,
o a reduction in the portion of the principal amount of a debt
security provable in bankruptcy,
o a reduction in amounts payable upon redemption,
o a reduction in the rate of interest payable on overdue amounts
and
o a reduction in the percentage of holders of the outstanding debt
securities of each series required to consent to any modification
discussed above.
-32-
Under each of the indentures, we can make certain modifications to the
applicable indenture with the consent of the trustee but without the consent of
any holders of debt securities to evidence our merger, the replacement of the
trustee and for certain other purposes.
Duties and Powers of the Trustee
Except during the continuance of an Event of Default, the trustee
under each of the indentures will perform only the duties set forth in the
applicable indenture. During the continuance of any Event of Default, the
trustee will exercise the rights and powers given it under the applicable
indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under similar circumstances in the conduct of
his own affairs.
The trustee may acquire and hold our securities and, subject to
certain conditions, otherwise deal with us as if it were not trustee.
We currently conduct banking transactions with the trustee in the
ordinary course of our business.
DESCRIPTION OF DEBT SECURITY WARRANTS
We may issue warrants for the purchase of debt securities. The
warrants may be issued independently or together with any securities offered by
any prospectus supplement. The warrants will be issued under one or more debt
security warrant agreements between us and a bank or trust company as debt
security warrant agent. The debt security warrant agent will be our agent and
will not assume any obligations to any owner of the debt security warrants. We
have summarized below certain material provisions of the separate debt security
warrant agreements. This summary is qualified in its entirety by reference to
the debt security warrant agreement.
General
Under the debt security warrant agreement, the warrants may be issued
in one or more series. The prospectus supplement and the debt security warrant
agreement relating to any series of warrants will include specific terms about
the warrants. These terms include some of the following:
o the type and number of warrants,
o the aggregate principal amount of related debt securities 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 debt securities,
o the expiration date of each warrant,
o the exercise date of each warrant,
o the offering price and currency of each warrant,
o if applicable, the designation and terms of the securities with
which each warrant can be issued,
o any provision dealing with the date on which the warrants and
related securities will be separately transferable,
o any provision granting a mandatory or an optional redemption
provision,
o the identity of the debt security warrant agent,
o the form of the debt security warrant certificates and
-33-
o any other terms of the warrant.
The warrants will be represented by certificates. The warrants may be
exchanged pursuant to the procedure outlined in the debt security 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
warrant is exercised, a holder will not be entitled to any payments on or have
any rights with respect to the debt securities issuable upon exercise of the
warrant.
Exercise of Debt Security Warrants
To exercise warrants, the holder must provide the debt security
warrant agent with the following:
o payment of the exercise price,
o certain information required by the reverse side of the warrant
certificates,
o the number of warrants to be exercised and
o an executed and completed warrant certificate.
The debt security warrant agent will issue a new warrant certificate
for any warrants not exercised. From time to time, we may reduce the exercise
price.
Modification of the Debt Security Warrant Agreement
The debt security warrant agreement will permit us and the debt
security warrant agent, without the consent of the warrant holders, to
supplement or amend the agreement in the following circumstances:
o to cure any ambiguity,
o to correct or supplement any provision which may be defective or
inconsistent with any other provisions or
o to add new provisions regarding certain matters or questions that
we and the debt security warrant agent may deem necessary or
desirable and which do not adversely affect the interests of the
warrant holders.
PLAN OF DISTRIBUTION
We may sell the securities described in this prospectus
o through agents,
o through underwriters or dealers, or
o directly to one or more purchasers.
The distribution of the securities may be made from time to time in
one or more transactions at a fixed price or prices. The fixed price may be
changed to reflect market prices prevailing at the time of sale at negotiated
prices.
Except for the common stock, the securities will have no established
trading market. Underwriters and agents to whom securities are sold for public
offering and sale may make a market in the securities, but will not be
-34-
obligated to do so and could stop doing so at any time without notice. We cannot
guarantee that there will be a market for the securities.
In connection with the sale of offered securities, underwriters may
receive compensation from us or from purchasers of offered securities for whom
they may act as agents in the form of discounts, concessions or commissions.
Underwriters may sell offered securities to or through dealers and such dealers
may receive compensation in the form of discounts, concessions and commissions
from the underwriters and commissions from the purchasers for whom they may act
as agents. Underwriters, dealers, agents or direct purchasers that participate
in the distribution of the offered securities may be underwriters as defined in
the Securities Act of 1933, and any discounts or commissions that we pay to them
and any profit on their resale of the offered securities may be treated as
underwriting discounts and commissions under the Securities Act of 1933. We will
identify any underwriters, dealers, agents or direct purchasers and describe
their compensation in the prospectus supplement.
We may have agreements with the underwriters, dealers and agents who
participate in the sale of offered securities to indemnify them against certain
civil liabilities, including liabilities under the Securities Act of 1933, or to
contribute with respect to payments which the underwriters, dealers or agents
may be required to make.
We may authorize agents, underwriters or dealers to solicit offers by
certain institutional investors to purchase debt securities which will be paid
for and delivered on a future date specified in the prospectus supplement. The
obligations of any purchasers under this delayed delivery and payment
arrangements will not be subject to any conditions except that the purchase at
delivery must not be prohibited under the laws of any jurisdiction in the United
States to which the institution is subject. The underwriters and dealers will
not have any responsibility for the validity and performance of these contracts.
LEGAL OPINION
White & Case LLP will issue for us an opinion about the legality of
the offered securities.
EXPERTS
The financial statements of Newmont Mining Corporation incorporated in
this prospectus by reference to the Annual Report on Form 10-K/A for the year
ended December 31, 2002 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
The financial statements of Newmont Mining Corporation incorporated in
this prospectus by reference to the Annual Report on Form 10-K/A for the year
ended December 31, 2001 have been so incorporated in reliance on the report
(which contains an explanatory paragraph relating to various restatements
described in Note 23 to the financial statements) of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
The financial statements of Nusa Tengarra Partnership V.O.F., an
equity investee of Newmont, incorporated in this prospectus by reference to the
Annual Report on Form 10-K/A for the year ended December 31, 2002 have been so
incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
The financial statements of Nusa Tengarra Partnership V.O.F.
incorporated in this prospectus by reference to the Annual Report on Form 10-K/A
for the year ended December 31, 2001 have been so incorporated in reliance on
the report (which contains an explanatory paragraph relating to various
restatements in Note 16 to the financial statements) of PricewaterhouseCoopers
LLP, independent accountants, given on the authority of said firm as experts in
auditing and accounting.
The audited consolidated financial statements of Franco-Nevada Mining
Corporation Limited (now Newmont Mining Corporation of Canada Limited) as of
March 31, 2001 and 2000 and for each of the three years ended March 31, 2001,
incorporated in this prospectus by reference to the Current Report on Form 8-K/A
filed on
-35-
April 15, 2003, have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
The financial statements of Normandy Mining Limited (now Newmont
Australia Limited) as of June 30, 2001 and 2000 and for the years then ended,
incorporated in this prospectus by reference to Amendment No. 2 to the Current
Report on Form 8-K/A filed by Newmont Mining Corporation on April 15, 2003 have
been audited by Deloitte Touche Tohmatsu, independent auditors, as stated in
their report (which report expresses an unqualified opinion and includes an
explanatory paragraph referring to the restatement of the reconciliation to
accounting principles generally accepted in the United States of America in Note
40, as discussed in Note 41), which is incorporated herein by reference, and
have been so incorporated in reliance upon the report of such firm given upon
their authority as experts in accounting and auditing.
Behre Dolbear & Company, Inc., a mineral industry consulting firm,
performed an independent appraisal of goodwill assigned to our reporting units
in connection with the February 2002 acquisitions of Franco-Nevada Mining
Corporation Limited (now Newmont Mining Corporation of Canada Limited) and
Normandy Mining Limited (now Newmont Australia Limited). The financial
statements of Newmont incorporated in this prospectus by reference to the Annual
Report on Form 10-K/A for the year ended December 31, 2002 have been so
incorporated in reliance on the appraisal of Behre Dolbear & Company, Inc.,
given on the authority of said firm as experts in mining industry appraisals.
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. The information on our website is not incorporated by
reference into and is not made a part of this prospectus. You may also read and
copy any document we file at the SEC's public reference room in Washington, D.C.
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:
o Annual Report on Form 10-K for the year ended December 31, 2002
(as amended by an Annual Report on Form 10-K/A filed on October
24, 2003);
o Annual Report of Form 10-K/A for the year ended December 31, 2001
filed on March 20, 2003;
o Quarterly Reports on Form 10-Q for the quarters ended March 31,
2003 and June 20, 2003 (each as amended by Quarterly Reports on
Form 10-Q/A filed on October 24, 2003);
o Quarterly Reports on Form 10-Q/A for the quarters ended March 31,
2002, June 30, 2002 and September 30, 2002 each filed on April
11, 2003;
o Current Reports on Form 8-K filed on March 28, 2003, April 22,
2003, May 7, 2003 and July 31, 2003;
o Current Report on Form 8-K/A filed on April 15, 2003 amending
Current Report on Form 8-K filed on March 1, 2002 and
subsequently amended on April 16, 2002; and
o The description of our common stock contained in our registration
statement on Form 8-A for our
-36-
common stock filed under the Securities Exchange Act of 1934
including any amendment or report filed for the purpose of
updating that description.
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.
Newmont USA is our consolidated wholly owned subsidiary. Newmont USA
is not required to file separate reports with the SEC.
-37-
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.*
SEC filing fee..............................................$ 46,000
Accounting fees and expenses................................$ 100,000
Legal fees and expenses ....................................$ 200,000
Warrant Agent's fees........................................$ 2,500
Transfer Agent's fees.......................................$ 2,500
Trustee's fees..............................................$ 10,000
Rating agency fees..........................................$ 200,000
Printing and engraving expenses.............................$ 50,000
Miscellaneous ..............................................$ 10,000
----------
Total .......................................................$ 621,000
==========
--------------------
*All estimates except for filing fee.
Item 15. Indemnification of Directors and Officers.
Article Tenth of each of the Certificates of Incorporation of Newmont
Mining Corporation and Newmont USA Limited provides that its directors shall be
protected from personal liability, through indemnification or otherwise, to the
fullest extent permitted under the General Corporation Law of the State of
Delaware as from time to time in effect.
The By-Laws of each of Newmont Mining and Newmont USA provide that
each person who at any time is or shall have been a director or officer of
Newmont Mining or Newmont USA, as the case may be, 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 or
Newmont USA, as the case may be, and his or her heirs, executors and
administrators, shall be indemnified by Newmont Mining or Newmont USA, as the
case may be, 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 each of
Newmont Mining and Newmont USA 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 or Newmont USA, as the case may be, and the
director or officer.
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.
II-1
Item 16. Exhibits.
Exhibit
Number Description of Documents
1.1 Proposed form of Underwriting Agreement relating to the Common
Stock, the Preferred Stock, the Depositary Shares and the Common
Stock Warrants.*
1.2 Proposed form of Underwriting Agreement relating to the Debt
Securities and the Debt Security Warrants.*
3.1 Certificate of Incorporation of Newmont Mining Corporation.
Incorporated by reference to Appendix F to Newmont Mining
Corporation's Registration Statement on Form S-4 (File No.
333-76506), filed with the Securities and Exchange Commission on
January 10, 2002.
3.2 Certificate of Amendment to the Certificate of Incorporation of
Newmont Mining Corporation. Incorporated by reference to Exhibit
3.4 to Newmont Mining Corporation's Registration Statement on
Form 8-A (File No. 001-31240), relating to the registration of
its common stock, filed with the Securities and Exchange
Commission on February 15, 2002.
3.3 By-Laws of Newmont Mining Corporation. Incorporated by reference
to Exhibit 3(g) to Newmont Mining Corporation's Annual Report on
Form 10-K for the year ended December 31, 2001.
3.4 Certificate of Elimination of Series A Junior Participating
Preferred Stock of the Registrant. Incorporated by reference to
Exhibit 3.2 to the Registrant's Registration Statement on Form
8-A (File No. 001-31240), relating to the registration of its
common stock, filed with the Securities and Exchange Commission
on February 15, 2002.
3.5 Certificate of Designations of Special Voting Stock of Newmont
Mining Corporation. Incorporated by reference to Exhibit 3.3 to
Newmont Mining Corporation's Registration Statement on Form 8-A
(File No. 001-31240), relating to the registration of its common
stock, filed with the Securities and Exchange Commission on
February 15, 2002.
3.6 Certificate of Designations of Series A Junior Participating
Preferred Stock of Newmont Mining Corporation. Incorporated by
reference to Exhibit 3.1 to Newmont Mining Corporation's
Registration Statement on Form 8-A (File No. 001-31240), relating
to the registration of its preferred stock purchase rights, filed
with the Securities and Exchange Commission on February 15, 2002.
3.7 Certificate of Designations of $3.25 Convertible Preferred Stock
of Newmont Mining Corporation. Incorporated by reference to
Exhibit 3.6 to Newmont Mining Corporation's Registration
Statement on Form 8-A (File No. 001-31240), relating to the
registration of its $3.25 convertible preferred stock, filed with
the Securities and Exchange Commission on February 15, 2002
(which preferred stock was redeemed in full on May 15, 2002).
4.1 Rights Agreement, dated as of February 13, 2002, between Newmont
Mining Corporation and Mellon Investor Services LLC (which
includes the form of Certificate of Designations of Series B
Junior Preferred Stock of Newmont Mining Corporation as Exhibit
A, the form of Right Certificate as Exhibit B and the Summary of
Rights to Purchase Preferred Shares as Exhibit C). Incorporated
by reference to Exhibit 4.1 to Newmont Mining Corporation's
Registration Statement on Form 8-A (File No. 001-31240), relating
to the registration of its preferred stock purchase rights, filed
with the Securities and Exchange Commission on February 15, 2002.
4.2 Indenture relating to the Senior Debt Securities, to be dated on
or about the date of first issuance of Senior Debt Securities
thereunder, among Newmont Mining Corporation, Newmont USA Limited
II-2
and Citibank, N.A., as trustee ("Citibank"), (including the form
of Senior Debt Securities) (the "Senior Indenture").*
4.3 Indenture relating to the Subordinated Debt Securities, to be
dated on or about the date of first issuance of Subordinated Debt
Securities thereunder, among Newmont Mining Corporation, Newmont
USA Limited and Citibank, N.A., as trustee (including the form of
Subordinated Debt Securities) (the "Subordinated Indenture").*
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 (No.
33-54249).
5 Opinion of White & Case LLP.*
12.1 Computation of Ratio of Earnings to Fixed Charges for the five
year period ended December 31, 2002. Incorporated by reference to
Exhibit 12.1 to Newmont Mining Corporation's Annual Report on
Form 10-K for the year ended December 31, 2002.
12.2 Computation of Ratio of Earnings to Fixed Charges and Preferred
Stock Dividends for the five year period ended December 31,
2002.*
12.3 Computation of Ratio of Earnings to Fixed Charges for the
six-month period ended June 30, 2003. Incorporated by reference
to Exhibit 12.1 to Newmont Mining Corporation's Quarterly Report
on Form 10-Q/A for the quarter ended June 30, 2002 filed on
October 24, 2003.
15 Letter re Unaudited Interim Financial Information.*
23.1 Consent of PricewaterhouseCoopers LLP re: Annual Report on Form
10-K/A for the year ended December 31, 2002.
23.2 Consent of PricewaterhouseCoopers LLP re: Amendment to Annual
Report on Form 10-K/A for the year ended December 31, 2001 filed
on March 20, 2003.
23.3 Consent of PricewaterhouseCoopers LLP re: Current Report on Form
8-K/A filed on April 15, 2003
23.4 Consent of PricewaterhouseCoopers LLP re: Nusa Tengarra
Partnership V.O.F. - Annual Report on Form 10-K/A for the year
ended December 31, 2002.
23.5 Consent of PricewaterhouseCoopers LLP re: Nusa Tengarra
Partnership V.O.F. - Amendment to Annual Report on Form 10-K/A
for the year ended December 31, 2001 filed on March 20, 2003.
23.6 Consent of Deloitte Touche Tohmatsu.
23.7 Consent of White & Case LLP (included in Exhibit 5)*.
23.8 Consent of Behre Dolbear & Company, Inc.
24.1 Power of Attorney of certain officers and directors of Newmont
Mining Corporation.*
24.2 Power of Attorney of certain officers and directors of Newmont
USA Limited.*
24.3 Power of Attorney of the principal accounting officer of Newmont
Mining Corporation.*
II-3
24.4 Power of Attorney of the principal accounting officer of Newmont
USA Limited.*
24.5 Power of Attorney of a director of Newmont USA Limited.*
24.6 Power of Attorney of the principal financial officer of Newmont
Mining Corporation.*
24.7 Power of Attorney of certain officers and directors of Newmont
USA Limited.
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Citibank, N.A., as Indenture Trustee
under the Senior Indenture.*
25.2 Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Citibank, N.A., as Indenture Trustee
under the Subordinated Indenture.*
------------------------
* Previously filed.
Item 17. Undertakings.
The undersigned Registrants hereby undertake:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3)
of the Act;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the information
set forth in 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 one of the Registrants pursuant to Section 13 or Section
15(d) of the 1934 Act that are incorporated by reference in the
registration statement;
(2) that, for the purpose of determining any liability under the
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof;
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering; and
II-4
(4) that, for purposes of determining any liability under the
Act, 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 Act
may be permitted to directors, officers and controlling persons of the
Registrants pursuant to the foregoing provisions, or otherwise, the Registrants
have 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 one of the Registrants of expenses incurred or paid by a
director, officer or controlling person of such 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, such
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.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant has duly caused this Amendment to the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Denver, State of Colorado, on the 27th day of
October, 2003.
NEWMONT MINING CORPORATION
By /s/ Britt D. Banks
----------------------------------------
Britt D. Banks
Vice President, General Counsel
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
----------------------
Glen A. Barton Director October 27, 2003
*
----------------------
Vincent A. Calarco Director October 27, 2003
*
----------------------
James T. Curry, Jr. Director October 27, 2003
*
----------------------
Joseph P. Flannery Director October 27, 2003
*
----------------------
Michael S. Hamson Director October 27, 2003
October 27, 2003
----------------------
Leo I. Higdon, Jr. Director
*
----------------------
Pierre Lassonde President and Director October 27, 2003
*
----------------------
Robert J. Miller Director October 27, 2003
*
----------------------
Wayne W. Murdy Chairman of the Board and
Chief Executive Officer
(Principal Executive Officer) October 27, 2003
*
----------------------
Robin A. Plumbridge Director October 27, 2003
*
----------------------
John B. Prescott Director October 27, 2003
II-6
*
----------------------
Michael K. Reilly Director October 27, 2003
*
----------------------
Seymour Schulich Director October 27, 2003
*
----------------------
James V. Taranik Director October 27, 2003
*
----------------------
Bruce D. Hansen Senior Vice President and Chief October 27, 2003
Financial Officer
(Principal Financial Officer)
*
----------------------
David W. Peat Vice President and Global October 27, 2003
Controller (Principal
Accounting Officer)
*By /s/ Britt D. Banks
--------------------------------
Britt D. Banks
As Attorney-in-fact
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant has duly caused this Amendment to the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Denver, State of Colorado, on the 27th day of
October, 2003
NEWMONT USA LIMITED
By /s/ Britt D. Banks
-------------------------------------
Britt D. Banks
Vice President, General Counsel
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
*
---------------------
David H. Francisco Chairman of the Board and October 27, 2003
Director
/s/ Britt D. Banks
---------------------
Britt D. Banks Vice President, General October 27, 2003
Counsel, Secretary and Director
*
---------------------
Bruce D. Hansen Director October 27, 2003
*
---------------------
Richard M. Perry President and Director October 27, 2003
(Principal Executive Officer)
*
---------------------
Thomas P. Mahoney Vice President and Treasurer October 27, 2003
(Principal Financial Officer)
*
---------------------
David W. Peat Vice President and Treasurer October 27, 2003
(Principal Accounting Officer)
*By /s/ Britt D. Banks
------------------------
Britt D. Banks
As Attorney-in-fact
II-7
EXHIBIT INDEX
Exhibit
Number Description of Documents
-------- ------------------------
1.1 Proposed form of Underwriting Agreement relating to the Common
Stock, the Preferred Stock, the Depositary Shares and the Common
Stock Warrants.*
1.2 Proposed form of Underwriting Agreement relating to the Debt
Securities and the Debt Security Warrants.*
3.1 Certificate of Incorporation of Newmont Mining Corporation.
Incorporated by reference to Appendix F to Newmont Mining
Corporation's Registration Statement on Form S-4 (File No.
333-76506), filed with the Securities and Exchange Commission on
January 10, 2002.
3.2 Certificate of Amendment to the Certificate of Incorporation of
Newmont Mining Corporation. Incorporated by reference to Exhibit
3.4 to Newmont Mining Corporation's Registration Statement on
Form 8-A (File No. 001-31240), relating to the registration of
its common stock, filed with the Securities and Exchange
Commission on February 15, 2002.
3.3 By-Laws of Newmont Mining Corporation. Incorporated by reference
to Exhibit 3(g) to Newmont Mining Corporation's Annual Report on
Form 10-K for the year ended December 31, 2001.
3.4 Certificate of Elimination of Series A Junior Participating
Preferred Stock of the Registrant. Incorporated by reference to
Exhibit 3.2 to the Registrant's Registration Statement on Form
8-A (File No. 001-31240), relating to the registration of its
common stock, filed with the Securities and Exchange Commission
on February 15, 2002.
3.5 Certificate of Designations of Special Voting Stock of Newmont
Mining Corporation. Incorporated by reference to Exhibit 3.3 to
Newmont Mining Corporation's Registration Statement on Form 8-A
(File No. 001-31240), relating to the registration of its common
stock, filed with the Securities and Exchange Commission on
February 15, 2002.
3.6 Certificate of Designations of Series A Junior Participating
Preferred Stock of Newmont Mining Corporation. Incorporated by
reference to Exhibit 3.1 to Newmont Mining Corporation's
Registration Statement on Form 8-A (File No. 001-31240), relating
to the registration of its preferred stock purchase rights, filed
with the Securities and Exchange Commission on February 15, 2002.
3.7 Certificate of Designations of $3.25 Convertible Preferred Stock
of Newmont Mining Corporation. Incorporated by reference to
Exhibit 3.6 to Newmont Mining Corporation's Registration
Statement on Form 8-A (File No. 001-31240), relating to the
registration of its $3.25 convertible preferred stock, filed with
the Securities and Exchange Commission on February 15, 2002
(which preferred stock was redeemed in full on May 15, 2002).
4.1 Rights Agreement, dated as of February 13, 2002, between Newmont
Mining Corporation and Mellon Investor Services LLC (which
includes the form of Certificate of Designations of Series B
Junior Preferred Stock of Newmont Mining Corporation as Exhibit
A, the form of Right Certificate as Exhibit B and the Summary of
Rights to Purchase Preferred Shares as Exhibit C). Incorporated
by reference to Exhibit 4.1 to Newmont Mining Corporation's
Registration Statement on Form 8-A (File No. 001-31240), relating
to the registration of its preferred stock purchase rights, filed
with the Securities and Exchange Commission on February 15, 2002.
4.2 Indenture relating to the Senior Debt Securities, to be dated on
or about the date of first issuance of Senior Debt Securities
thereunder, among Newmont Mining Corporation, Newmont USA Limited
and Citibank, N.A., as trustee ("Citibank"), (including the form
of Senior Debt Securities) (the "Senior Indenture"). *
4.3 Indenture relating to the Subordinated Debt Securities, to be
dated on or about the date of first issuance of Subordinated Debt
Securities thereunder, among Newmont Mining Corporation, Newmont
USA Limited and Citibank, N.A., as trustee (including the form of
Subordinated Debt Securities) (the "Subordinated Indenture").*
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 (No.
33-54249).
5 Opinion of White & Case LLP.*
12.1 Computation of Ratio of Earnings to Fixed Charges for the five
year period ended December 31, 2002. Incorporated by reference to
Exhibit 12.1 to Newmont Mining Corporation's Annual Report on
Form 10-K for the year ended December 31, 2002.
12.2 Computation of Ratio of Earnings to Fixed Charges and Preferred
Stock Dividends for the five year period ended December 31,
2002.*
12.3 Computation of Ratio of Earnings to Fixed Charges for the
six-month period ended June 30, 2003. Incorporated by reference
to Exhibit 12.1 to Newmont Mining Corporation's Quarterly Report
on Form 10-Q/A for the quarter ended June 30, 2002 filed on
October 24, 2003.
15 Letter re Unaudited Interim Financial Information.*
23.1 Consent of PricewaterhouseCoopers LLP re: Annual Report on Form
10-K/A for the year ended December 31, 2002.
23.2 Consent of PricewaterhouseCoopers LLP re: Amendment to Annual
Report on Form 10-K/A for the year ended December 31, 2001 filed
on March 20, 2003.
23.3 Consent of PricewaterhouseCoopers LLP re: Current Report on Form
8-K/A filed on April 15, 2003
23.4 Consent of PricewaterhouseCoopers LLP re: Nusa Tengarra
Partnership V.O.F. - Annual Report on Form 10-K/A for the year
ended December 31, 2002.
23.5 Consent of PricewaterhouseCoopers LLP re: Nusa Tengarra
Partnership V.O.F. - Amendment to Annual Report on Form 10-K/A
for the year ended December 31, 2001 filed on March 20, 2003.
23.6 Consent of Deloitte Touche Tohmatsu.
23.7 Consent of White & Case LLP (included in Exhibit 5)*
23.8 Consent of Behre Dolbear & Company, Inc.
24.1 Power of Attorney of certain officers and directors of Newmont
Mining Corporation.*
24.2 Power of Attorney of certain officers and directors of Newmont
USA Limited.*
24.3 Power of Attorney of the principal accounting officer of Newmont
Mining Corporation.*
24.4 Power of Attorney of the principal accounting officer of Newmont
USA Limited.*
24.5 Power of Attorney of a director of Newmont USA Limited.*
24.6 Power of Attorney of the principal financial officer of Newmont
Mining Corporation.*
24.7 Power of Attorney of certain officers and directors of Newmont
USA Limited.
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Citibank, N.A., as Indenture Trustee
under the Senior Indenture.*
25.2 Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Citibank, N.A., as Indenture Trustee
under the Subordinated Indenture.*
------------------------
* Previously filed.