Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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, including (Address, including zip code, and telephone
area code, of Registrant's principal executive offices) number, including area code, of Registrant's
principal executive offices)
---------------------------
Sharon E. Thomas
Newmont Mining Corporation
1700 Lincoln Street
Denver, Colorado 80203
(303) 863-7414
(Name, address and telephone number,
including area code, of agent for service)
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Copies to:
Maureen Brundage, Esq.
White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
(212) 819-8200
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Approximate date of commencement of proposed sale to the public: From time
to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.|X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum Amount of
Title of each class of Amount to be offering price aggregate offering registration
Securities to be registered registered (1) per unit (1) price (1) fee
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Common Stock (2)......................
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Preferred Stock (3)....................
Warrants for Common Stock (4)..........
Guaranteed Senior Debt Securities (5)..
Guaranteed Subordinated Debt
Securities (6).......................
Guarantees of Guaranteed Senior Debt
Securities (5)
Guarantees of Guaranteed Subordinated
Debt Securities (6)..................
Warrants for Guaranteed Debt
Securities (7).......................
Total................................... US$600,000,000 (8) 100% US$600,000,000 (8) US$70,620
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(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act of 1933, as amended.
(2) Subject to note (8) below, there is being registered hereunder an
indeterminate number of shares of common stock of Newmont Mining
Corporation ("Newmont Mining") as may be issued from time to time at
indeterminate prices, including shares issuable upon (i) conversion of (x)
guaranteed debt securities that are convertible into common stock or (y)
preferred stock that is convertible into common stock or (ii) exchange of
exchangeable shares.
(3) Subject to note (8) below, there is being registered hereunder an
indeterminate number of shares of preferred stock of Newmont Mining as may
be issued from time to time at indeterminate prices. Such shares of
preferred stock may be convertible into shares of common stock of Newmont
Mining.
(4) Subject to note (8) below, there is being registered hereunder an
indeterminate number of warrants of Newmont Mining as may be issued from
time to time at indeterminate prices entitling the holder to purchase
shares of common stock of Newmont Mining.
(5) Subject to note (8) below, there is being registered hereunder an
indeterminate principal amount of guaranteed senior debt securities of
Newmont Mining and related guarantees thereof of Newmont USA Limited
("Newmont USA") as may be issued from time to time at indeterminate prices.
Such guaranteed senior debt securities may be convertible into shares of
common stock of Newmont Mining.
(6) Subject to note (8) below, there is being registered hereunder an
indeterminate principal amount of guaranteed subordinated debt securities
of Newmont Mining and related guarantees thereof of Newmont USA as may be
issued from time to time at indeterminate prices. Such guaranteed
subordinated debt securities may be convertible into shares of common stock
of Newmont Mining.
(7) Subject to note (8) below, there is being registered hereunder an
indeterminate number of warrants of Newmont Mining as may be issued from
time to time at indeterminate prices entitling the holder to purchase
guaranteed senior debt securities and/or guaranteed subordinated debt
securities of Newmont Mining.
(8) In no event will the aggregate offering price of all securities issued from
time to time under this registration statement and Newmont Mining's
registration statement on Form S-3 (Registration No. 333-112142) and
Newmont USA's registration statement on Form S-3 (Registration No.
333-112142-01) exceed U.S.$1,000,000,000 or the equivalent thereof in one
or more foreign currencies, foreign currency units or composite currencies.
Pursuant to Rule 429 under the Securities Act of 1933, the prospectus
included in this registration statement also relates to U.S.$400,000,000 maximum
aggregate offering price of common stock, preferred stock, common stock
warrants, guaranteed senior debt securities, and related guarantees thereof,
guaranteed subordinated debt securities, and related guarantees thereof, and
warrants for guaranteed debt securities previously registered under Newmont
Mining's Registration Statement on Form S-3 (Registration No. 333-112142) and
Newmont USA's registration statement on Form S-3 (Registration No.
333-112142-01). This Registration Statement constitutes Post-Effective Amendment
No. 1 to Newmont Mining's Registration Statements on Form S-3 (Registration No.
333-112142) and to Newmont USA's Registration Statement on Form S-3
(Registration No. 333-112142-01).
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.
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PROSPECTUS
NEWMONT MINING CORPORATION
We may offer by this prospectus the following securities:
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 ________, 2005.
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Table of Contents
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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.......................................18
DESCRIPTION OF DEBT SECURITIES AND GUARANTEES..............................20
DESCRIPTION OF DEBT SECURITY WARRANTS......................................31
PLAN OF DISTRIBUTION.......................................................32
LEGAL OPINION..............................................................33
EXPERTS....................................................................33
WHERE YOU CAN FIND MORE INFORMATION........................................33
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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. 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 or otherwise issue 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 is the world's largest gold producer with
significant assets or operations in the United States, Australia, Peru,
Indonesia, Canada, Uzbekistan, Bolivia, New Zealand, Ghana and Mexico. 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. 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, we completed the acquisition of Franco-Nevada Mining
Corporation Limited, a Canadian company, pursuant to a Plan of Arrangement. On
February 20, 2002, we 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 our off-market bid for Normandy expired, we had a
relevant interest in more than 96% of Normandy's outstanding shares. We
exercised compulsory acquisition rights under Australian law to acquire all of
the remaining shares of Normandy in 2002.
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 are also engaged in
the production of, and exploration for, silver, copper and zinc. Newmont USA
Limited is a subsidiary of Newmont Mining. In this prospectus, "Newmont USA"
refers to Newmont USA Limited.
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
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.
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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 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" or in a
prospectus supplement with respect to a particular offering of securities.
Risks Related to the Mining Industry Generally
A Substantial or Extended Decline in Gold or Copper Prices Would Have a
Material Adverse Effect on Newmont
Our business is dependent on the prices of gold and copper, which are
affected by numerous factors beyond our control. Factors tending to put downward
pressure on the prices of gold and copper include:
o sales or leasing of gold by governments and central banks;
o a strong U.S. dollar;
o global and regional recession or reduced economic activity;
o speculative trading;
o decreased demand for industrial uses, use in jewelry, and investment;
o high supply from production, disinvestment, and scrap;
o sales by producers in forward transactions and other hedging
transactions; and
o devaluing local currencies (relative to gold priced in U.S. dollars)
leading to lower production costs and higher production in certain regions.
Any drop in the prices of gold and copper adversely impacts our revenues,
profits and cash flows, particularly in light of our philosophy of avoiding gold
hedging. We have recorded asset writedowns in prior years
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as a result of low gold prices and may experience additional asset impairments
as a result of low gold or copper prices in the future.
In addition, sustained low gold or copper prices can:
o reduce revenues further through production cutbacks due to cessation of
the mining of deposits or portions of deposits that have become uneconomic at
the then-prevailing gold or copper 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/or
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 or Copper Price" in Item 1, "Business" in
our Annual Report on Form 10-K for our most recently completed fiscal year.
Gold and Copper Producers Must Continually Obtain Additional Reserves
Gold producers must continually replace reserves depleted by production.
Depleted reserves must be replaced by expanding known ore bodies or by locating
new deposits in order for producers to maintain production levels over the long
term. 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.
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. Producers
use feasibility studies to derive estimates of 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, operating costs, and other factors. Actual
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
Costs at any particular mining location frequently are subject to variation
from one year to the next due to a number of factors, such as changing ore
grade, metallurgy and revisions to mine plans in response to the physical shape
and location of the ore body. In addition, 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
significant location could have a significant effect on our profitability.
Mining Accidents or Other Adverse Events at a Mining Location Could Reduce
Our Production Levels
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
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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.
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 relating to the protection of the environment, which generally include air
and water quality, hazardous waste management and reclamation. Delays in
obtaining or failure to obtain government permits and approvals may adversely
impact our operations. The regulatory environment in which we operate could
change in ways that would substantially increase our costs to achieve
compliance, or otherwise could have a material adverse effect on our operations
or financial position.
For a more detailed discussion of our potential environmental liabilities,
see the discussion in "Environmental Matters," Note 27 to our Consolidated
Financial Statements contained 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 Our Operations
Our Operations Outside North America and Australia Are Subject to 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 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, or 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 risks of loss due to civil strife, acts of war, guerrilla activities,
insurrection and terrorism;
o risk of loss due to disease and other potential endemic health issues;
and
o other risks arising out of foreign sovereignty over the areas in which
our operations are conducted.
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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, 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. These factors 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, denial of permits or permit renewals or expropriation of
assets. If this were to occur with respect to the Batu Hijau Contract of Work,
our financial condition and results of operations could be materially adversely
affected.
In July 2004, a criminal complaint was filed against P.T. Newmont Minahasa
Raya ("PTNMR"), the Newmont subsidiary that operated the Minahasa mine in
Indonesia, alleging environmental pollution relating to submarine tailings
placement into nearby Buyat Bay. The Indonesian police detained five PTNMR
employees during September and October of 2004. The police investigation and the
detention of PTNMR's employees was declared illegal by the South Jakarta
District Court in December of 2004, and the police have appealed that decision
to the Indonesian Supreme Court. In March 2005, the Indonesian Supreme Court
upheld the legality of the police investigation, and the police turned their
evidence over to the local prosecutor, who is now evaluating the case. A
decision by the prosecutor on whether to charge PTNRM or any of its employees is
expected during the second quarter of 2005.
A civil lawsuit, which was filed by three residents of Buyat Pante against
PTNMR, a village located near the Minahasa mine, was settled without payment to
the plaintiffs in December 2004. In addition, on March 9, 2005, the Indonesian
Ministry of the Environment filed a civil lawsuit against PTNMR and its
President Director in relation to these allegations.
Independent sampling and testing of Buyat Bay water and fish, as well as
area residents, conducted by the World Health Organization and the Australian
Commonwealth Scientific and Industrial Research Organization, confirm that PTNMR
has not polluted the Buyat Bay environment, and, therefore, has not adversely
affected the fish in the Bay or the health of nearby residents. We remain
steadfast that we have not caused pollution or health problems and will continue
to vigorously defend ourselves against these allegations. However, we cannot
predict the outcome of these actions or whether additional legal actions may
occur. Any of these actions could adversely affect our ability to operate in
Indonesia.
During the last several 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. During September 2004, individuals from the Cajamarca region
conducted a sustained blockade of the road in protest of drilling activities at
Cerro Quilish, one of the ore deposits within the Yanacocha mine complex.
Yanacocha suspended all drilling activities at Cerro Quilish, and the blockade
was resolved. At the request of Yanacocha, the Cerro Quilish drilling permit was
revoked in November 2004. We have reassessed the challenges involved in
obtaining required permits for Cerro Quilish primarily related to increased
community concerns. Based upon this reassessment, we have reclassified the
deposit's 1.98 million equity gold ounces from proven and probable reserves to
mineralized material not in reserves as of December 31, 2004. 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
operations in Peru.
Recent violence 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.
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Our Success May Depend on Our Social and Environmental Performance
Our ability to operate successfully in communities around the world will
likely depend on our ability to develop, operate and close mines in a manner
that is consistent with the health and safety of our employees, the protection
of the environment, and the creation of long-term economic and social
opportunities in the communities in which we operate. We have implemented a
management system designed to promote continuous improvement in health and
safety, environmental performance and community relations. However, our ability
to operate may be adversely impacted by accidents or events detrimental (or
perceived to be detrimental) to the health and safety of our employees, the
environment or the communities in which we operate.
Remediation Costs for Environmental Law Liabilities May Exceed the
Provisions We Have Made
We have conducted extensive remediation 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 determined. 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 remain
uncertain and there is a risk that the costs of remediation may exceed the
provision that has been 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 can materially reduce net income in that period.
The Use of Hedging Instruments May Prevent Gains Being Realized from
Subsequent Price Increases
We do not intend to enter into material new gold hedging positions and
intend to continue to decrease gold hedge positions over time by
opportunistically delivering gold into our existing hedge contracts, or by
seeking to eliminate our hedge position when economically attractive.
Nonetheless, we currently have gold hedging positions and may, from
time-to-time, enter into hedge contracts for copper, other metals or
commodities, interest rates or foreign currencies. In 2004, we entered into
copper hedging positions covering approximately 459 million pounds of copper. If
the gold, copper or other metal 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, copper or other metal 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,
copper or other metal price.
For a more detailed description of our hedge positions, see the discussion
in "Hedging" in Item 7A, "Quantitative and Qualitative Disclosures About Market
Risk," in our Annual Report on Form 10-K for our most recently completed fiscal
year.
Currency Fluctuations May Affect Costs
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 that primarily
impact our results of operations are the Australian and Canadian dollars.
During 2004, the Australian and Canadian dollars strengthened by an average
of 13% and 7%, respectively, against the U.S. dollar. This increased U.S. dollar
reported operating costs in Australia and Canada by approximately $56.6 million
and $4.8 million, respectively. For additional information, see Item 7,
"Management's Discussion and Analysis of Consolidated Financial Condition and
Results of Operations, Results of Operations, Foreign Currency Exchange Rates,"
in our Annual Report on Form 10-K for the most recently completed fiscal year.
For a more detailed description of how currency exchange rates may affect costs,
see discussion in Foreign Currency
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in Item 7A, "Quantitative and Qualitative Disclosures About Market Risk" in our
Annual Report on Form 10-K for the most recently completed fiscal year.
Our Level of Indebtedness May Affect Our Business
As of December 31, 2004, we had debt of $1.6 billion, as compared to $1.1
billion as of December 31, 2003. Our level of indebtedness could have important
consequences for our operations, including:
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 be able 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, utilize
existing cash balances, 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 Interest in the Batu Hijau Mine in Indonesia May Be Reduced Under the
Contract of Work
Under the Batu Hijau Contract of Work with the Indonesian government,
beginning in 2005 and continuing through 2010, a portion of each foreign
shareholders' equity interest in the project must be offered for sale to the
Indonesian government or to Indonesian nationals. The price at which such
interest must be offered for sale to the Indonesian parties is the highest of
the then-current replacement cost, the price at which shares of the project
company would be accepted for listing on the Jakarta Stock Exchange, or the fair
market value of such interest in the project company as a going concern. An
Indonesian national currently owns a 20% interest in Batu Hijau, which would
require Newmont Mining and Sumitomo, collectively, to offer a 3% interest to the
Indonesian government or to Indonesian nationals in 2006. Pursuant to this
provision of the Batu Hijau Contract of Work, it is possible that the ownership
interest of the Newmont Mining/Sumitomo partnership in Batu Hijau could be
reduced to 49% by the end of 2010.
Occurrence of Events for Which We Are Not Insured May Affect Our Cash Flow
and Overall Profitability
We maintain insurance policies 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 and contracts. We do not maintain
insurance policies against political risk. Occurrence of events for which we are
not insured may affect our cash flow and overall profitability.
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Our Business Depends on Good Relations with Our Employees
We could experience labor disputes, work stoppages or other disruptions in
production that could adversely affect us. At December 31, 2004, unions
represented approximately 20% of our worldwide work force. On that date, we had
1,098 employees at its Carlin, Nevada operations, 211 employees in Canada at our
Golden Giant operations, 2,727 employees in Indonesia at our Batu Hijau
operations, 41 employees in New Zealand at our Martha operation, 325 employees
in Bolivia at our Kori Kollo operation, 628 employees at our Australia
operations, and 552 employees in Peru at our Yanacocha operation, working under
a collective bargaining agreement or similar labor agreement. Currently, there
are labor agreements in effect for all of these workers.
Our Earnings Could Be Affected by the Prices of Other Commodities
Our revenues and earnings also could be affected by the prices of other
commodities such as fuel and other consummable items, although to a lesser
extent than by the price of gold or copper. The prices of these commodities are
affected by numerous factors beyond our control.
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, certain of
our Australian properties could be subject to native title or traditional
landowner claims, but such 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.
Certain Factors Outside of Our Control May Affect Our Ability to Support
the Carrying Value of Goodwill
At December 31, 2004, the carrying value of our goodwill was approximately
$3.0 billion or 24% of our total assets. Such goodwill has been assigned to our
Merchant Banking ($1.6 billion) and Exploration ($1.1 billion) Segments, and to
various mine site reporting units ($0.3 billion in the aggregate). This goodwill
arose in connection with our February 2002 acquisitions 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. 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.
Based on valuations of the Merchant Banking and Exploration Segments, we
concluded that the fair values significantly exceeded the respective carrying
values as of December 31, 2004. The fair values of the 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, certain of the
assumptions underlying the December 31, 2004 Merchant Banking and Exploration
valuations may not be easily achieved by us, even though such assumptions were
based on historical experience and we consider such assumptions to be reasonable
under the circumstances.
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At December 31, 2004, the $1.6 billion carrying value of the Merchant
Banking Segment goodwill represented approximately 65% of the carrying value of
the total assets of the Merchant Banking Segment. The December 31, 2004
discounted cash flow analysis for the equity portfolio sub-segment of the
Merchant Banking Segment assumed: (i) a discount rate of 9%; (ii) a time horizon
of ten years; (iii) pre-tax returns on investment ranging from 35% starting in
2005 and gradually declining to 15% in 2012 through 2014; (iv) an initial equity
portfolio investment of approximately $0.5 billion; (v) capital infusions of $50
million annually for the next three years; and (vi) a terminal value of
approximately $2.2 billion. The December 31, 2004 discounted cash flow analysis
for the royalty portfolio sub-segment of the Merchant Banking Segment assumed:
(i) a discount rate of 9%; (ii) a time horizon of ten years; (iii) an annual
growth rate of 5% in the royalty portfolio; and (iv) a pre-tax rate of return on
investment of 13%. The December 31, 2004 discounted cash flow analysis for the
value realization sub-segment of the Merchant Banking Segment assumed: (i) a
discount rate of 9%; (ii) a time horizon of ten years; and (iii) a pre-tax
advisory fee of 5% on approximately $0.5 billion of transactions and value-added
activities in 2005, with the dollar amount of such transactions and activities
increasing by 5% annually thereafter. The December 31, 2004 discounted cash flow
analysis for the downstream gold refining sub-segment of the Merchant Banking
Segment assumed: (i) a discount rate of 9%; (ii) a time horizon of ten years;
and (iii) a pre-tax annual return on investments of $4.2 million. The December
31, 2004 discounted cash flow analysis assumed a combined terminal value for the
royalty portfolio, portfolio management and downstream gold refining
sub-segments of approximately $0.7 billion.
At December 31, 2004, the $1.1 billion carrying value of the Exploration
Segment goodwill represented approximately 98% of the carrying value of the
total assets of the Exploration Segment. Based on the review of historical
additions to proven and probable reserves and on management's expectation of the
growth rate and levels of reserve additions that could be expected to continue
in the future, the discounted cash flow model developed to value the Exploration
Segment at December 31, 2004 assumed that (i) the Exploration Segment would be
responsible for 11.0 million ounces of additions to proven and probable reserves
in 2005; (ii) such additions would increase by 5% annually; and (iii)
approximately 9.1%, 8.7%, 8.3% and 7.9% of additions in years 2005, 2006, 2007
and 2008, respectively, would represent ounces that had previously been valued
in the Normandy purchase accounting. In addition, the discounted cash flow model
for the Exploration Segment assumed, among other matters: (i) a 16-year time
horizon, including a seven-year time lapse between additions to proven and
probable reserves and the initiation of production and a five-year production
period; (ii) a discount rate of 8%; (iii) a terminal value of approximately $5.8
billion; (iv) an average gold price of $375 per ounce during the time horizon;
(v) total cash costs per ounce of $230; and (vi) capital costs of $50 per ounce.
We believe that any model used to value the Exploration Segment will need to
take into account the relatively long time horizon required to evaluate the
activities of the Exploration Segment.
In the absence of any mitigating valuation factors, our failure to achieve
one or more of the December 31, 2004 valuation assumptions will over time result
in an impairment charge. Accordingly, no assurance can be given that significant
non-cash impairment charges 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 and assumptions 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.
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 were inadequate to cover fixed charges
with a deficiency of $43.8 million.
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Year ended December 31,
Three months ended
March 31, 2005 2004 2003 2002 2001 2000
-------------- ---- ---- ---- ---- ----
7.8 10.6 9.8 2.9 --- 1.4
The following table contains our ratios of earnings to fixed charges and
preferred stock dividends for the periods indicated. Earnings in 2001 were
inadequate to cover fixed charges and preferred stock dividends with a
deficiency of $66.8 million.
Year ended December 31,
Three months ended
March 31, 2005 2004 2003 2002 2001 2000
-------------- ---- ---- ---- ---- ----
7.8 10.6 9.8 2.7 --- 1.2
For the purposes of these tables, fixed charges are calculated by adding
the following:
o net interest expensed,
o interest capitalized,
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 before income taxes, equity income and impairment of
affiliates and cumulative effect of a change in accounting
principle,
o net interest expensed,
o amortization of capitalized interest,
o an estimate of the interest within rental expense,
o income of equity investees, and
o minority interest of consolidated subsidiaries
and then subtracting:
o losses of equity investees, and
o preferred stock dividend requirements of consolidated subsidiaries,
if any.
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. 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.
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As of April 30, 2005, 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) 412,295,397 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) 33,662,028 shares were issuable upon
conversion of the exchangeable shares of Newmont Mining Corporation of
Canada Limited ("Newmont Canada"), 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.
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
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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.
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.
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
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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:
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 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
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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.
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.
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(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 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
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The exchangeable shares are listed on the Toronto Stock Exchange under the
symbol "NMC".
Anti-Takeover Provisions
Article Ninth of our certificate of incorporation may make it more
difficult for various corporations, entities or persons to acquire control of us
or to remove management.
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.
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,
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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,
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:
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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.
DESCRIPTION OF DEBT SECURITIES AND GUARANTEES
General
Newmont Mining may offer:
o senior debt securities guaranteed by Newmont USA and
o subordinated debt securities guaranteed by Newmont USA.
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.
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,
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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,
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
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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 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.
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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:
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
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$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, as amended. DTC holds securities
that its participants deposit with DTC. DTC also facilitates the clearance and
recording 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.
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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.
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.
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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.
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,
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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,
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)
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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
(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.
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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,
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
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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.
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,
-30-
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.
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,
-31-
o the identity of the debt security warrant agent,
o the form of the debt security warrant certificates and
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.
In addition, we may issue shares of common stock pursuant to this
prospectus upon conversion or exchange of other securities issued by us or our
affiliates. The distribution of the securities may be made from time to time in
-32-
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 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, as amended, 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, as
amended. 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,as
amended, 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 and management's assessment of the effectiveness
of internal control over financial reporting (which is included in Management's
Report on Internal Control over Financial Reporting) incorporated in this
prospectus by reference to the Annual Report on Form 10-K for the year ended
December 31, 2004 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, an independent registered public accounting firm,
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 for the year ended December 31, 2004 have been so
incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent registered public accounting firm, given on the authority of said
firm as experts in auditing and accounting.
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.
-33-
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, as amended, 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, 2004;
o Quarterly report on Form 10-Q for the quarter ended March 31, 2005;
o Current Reports on Form 8-K filed on January 5, 2005, January 12, 2005,
February 3, 2004, February 24, 2005, March 2, 2005, March 3, 2005,
March 22, 2005, April 27, 2005 and May 2, 2005; and
o The description of our common stock contained in our registration
statement on Form 8-A for our common stock filed under the Securities
Exchange Act of 1934, as amended, 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.
-34-
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.*
SEC filing fee......................................$ 70,620
Accounting fees and expenses........................$ 60,000
Legal fees and expenses ............................$ 300,000
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.......................................$ 10,380
-----------
Total...............................................$ 706,000
--------------------
*All estimates except for filing fee.
Item 15. Indemnification of Directors and Officers.
Each of Article Tenth of the Certificate of Incorporation of Newmont Mining
and Article VIII of the Restated Certificate of Incorporation of Newmont USA
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 Newmont Mining provide that each person who at any time is
or shall have been a director or officer of Newmont Mining, or is or shall have
been serving another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise in any capacity at the request of Newmont
Mining and his or her heirs, executors and administrators, shall be indemnified
by Newmont Mining in accordance with and to the full extent permitted by the
General Corporation Law of the State of Delaware. Article VI of the By-Laws of
Newmont Mining facilitates enforcement of the right of directors and owners to
be indemnified by establishing such right as a contract right pursuant to which
the person entitled thereto may bring suit as if the indemnification provisions
of the By-Laws were set forth in a separate written contract between Newmont
Mining and the director or officer.
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.
-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.
4.1 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.
4.2 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.
4.3 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.
4.4 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.
4.6 Indenture dated as of March 17, 2005, among Newmont Mining
Corporation, Newmont USA Limited and Citibank, N.A., as trustee
("Citibank") (including the form of Senior Debt Securities) (the
"Senior Indenture"). Incorporated by reference to Exhibit 4.1 to
Newmont Mining Corporation's Current Report on Form 8-K, filed with
the Securities and Exchange Commission on March 22, 2005.
4.7 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"). Incorporated by reference
to Exhibit 4.3 to Newmont Mining Corporation's Registration Statement
on Form S-3/A (File No. 333-87100), filed with the Securities and
Exchange Commission on April 23, 2003.
4.8 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, 2004. Incorporated by reference to Exhibit
12.2 to Newmont Mining Corporation's Annual Report on Form 10-K for
the year ended December 31, 2004.
12.2 Computation of Ratio of Earnings to Fixed Charges and Preferred
Dividends for the five-year period ended December 31, 2004.
Incorporated by reference to Exhibit 12.1 to Newmont Mining
Corporation's Annual Report on Form 10-K for the year ended December
31, 2004.
-2-
12.3 Computation of Ratio of Earnings to Fixed Charges for the three-month
period ended March 31, 2005. Incorporated by reference to Exhibit 12.1
to Newmont Mining Corporation's Quarterly Report on Form 10-Q for the
quarter ended March 31, 2005.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of White & Case LLP (included in Exhibit 5).
24.1 Power of Attorney of certain officers and directors of Newmont Mining
Corporation.
24.2 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.
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
Securities Act of 1933, as amended;
(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 Exchange Act of 1934, as amended, that are incorporated by
reference in the registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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
-3-
(4) that, for purposes of determining any liability under the
Securities Act of 1933, as amended, each filing of Newmont Mining's annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act of 1934, as
amended, that is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, 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
Securities Act of 1933, as amended, 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 Securities Act of 1933, as amended, and will be governed by the
final adjudication of such issue.
-4-
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 12th day of May, 2005.
NEWMONT MINING CORPORATION
By /s/ Britt D. Banks
------------------------------------------
Britt D. Banks
Vice President and General Counsel
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
*
-------------------------
Glen A. Barton Director May 12, 2005
*
-------------------------
Vincent A. Calarco Director May 12, 2005
*
-------------------------
Michael S. Hamson Director May 12, 2005
*
-------------------------
Leo I. Higdon, Jr. Director May 12, 2005
*
-------------------------
Pierre Lassonde President and Director May 12, 2005
*
-------------------------
Robert J. Miller Director May 12, 2005
* Chairman of the Board and
------------------------- Chief Executive Officer
Wayne W. Murdy (Principal Executive Officer) May 12, 2005
*
-------------------------
Robin A. Plumbridge Director May 12, 2005
*
-------------------------
John B. Prescott Director May 12, 2005
*
-------------------------
Donald C. Roth Director May 12, 2005
*
-------------------------
Seymour Schulich Director May 12, 2005
*
-------------------------
James V. Taranik Director May 12, 2005
-5-
*
-------------------------
Bruce D. Hansen Vice President and May 12, 2005
Chief Financial Officer
(Principal Financial Officer)
*
-------------------------
Russell Ball Vice President and Controller May 12, 2005
(Principal Accounting Officer)
*By /s/ Britt D. Banks
---------------------
Britt D. Banks.
As Attorney-in-fact
-6-
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 12th day of May, 2005.
NEWMONT USA LIMITED
By /s/ Sharon E. Thomas
-------------------------------------
Sharon E. Thomas
Vice President and Secretary
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
*
-------------------------
David H. Francisco Chairman of the Board and May 12, 2005
Director
*
-------------------------
Britt D. Banks Vice President, General Counsel, May 12, 2005
Secretary and Director
*
-------------------------
Bruce D. Hansen Director May 12, 2005
*
--------------------------
Pierre Lassonde Director May 12, 2005
*
--------------------------
Richard M. Perry President and Director May 12, 2005
(Principal Executive Officer)
*
--------------------------
Thomas P. Mahoney Vice President and Treasurer May 12, 2005
(Principal Financial Officer)
*
-------------------------- Vice President and Controller May 12, 2005
Russell D. Ball (Principal Accounting Officer)
*By /s/ Sharon E. Thomas
---------------------
Sharon E. Thomas
As Attorney-in-fact
-1-
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.
4.1 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.
4.2 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.
4.3 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.
4.4 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.
4.6 Indenture dated as of March 17, 2005, among Newmont Mining
Corporation, Newmont USA Limited and Citibank, N.A., as trustee
("Citibank") (including the form of Senior Debt Securities) (the
"Senior Indenture"). Incorporated by reference to Exhibit 4.1 to
Newmont Mining Corporation's Current Report on Form 8-K, filed with
the Securities and Exchange Commission on March 22, 2005.
4.7 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"). Incorporated by reference
to Exhibit 4.3 to Newmont Mining Corporation's Registration Statement
on Form S-3/A (File No. 333-87100), filed with the Securities and
Exchange Commission on April 23, 2003.
4.8 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, 2004. Incorporated by reference to Exhibit
12.2 to Newmont Mining Corporation's Annual Report on Form 10-K for
the year ended December 31, 2004.
12.2 Computation of Ratio of Earnings to Fixed Charges and Preferred
Dividends for the five-year period ended December 31, 2004.
Incorporated by reference to Exhibit 12.1 to Newmont Mining
Corporation's Annual Report on Form 10-K for the year ended December
31, 2004.
12.3 Computation of Ratio of Earnings to Fixed Charges for the three-month
period ended March 31, 2005. Incorporated by reference to Exhibit 12.1
to Newmont Mining Corporation's Quarterly Report on Form 10-Q for the
quarter ended March 31, 2005.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of White & Case LLP (included in Exhibit 5).
24.1 Power of Attorney of certain officers and directors of Newmont Mining
Corporation.
24.2 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.