-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, KTlN43VBnPNs7PcMPVyJadk7dwg7B85kw+xItZoGWt41pG4ExGUQ8GzfBDF1GvDO 6m3j6sd48dmvahlH3ax6/g== 0000950123-95-003309.txt : 19951119 0000950123-95-003309.hdr.sgml : 19951119 ACCESSION NUMBER: 0000950123-95-003309 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19951114 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: NEWMONT MINING CORP CENTRAL INDEX KEY: 0000071824 STANDARD INDUSTRIAL CLASSIFICATION: GOLD & SILVER ORES [1040] IRS NUMBER: 131806811 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 033-64173 FILM NUMBER: 95591336 BUSINESS ADDRESS: STREET 1: ONE UNITED BANK CTR STREET 2: 1700 LINCOLN ST CITY: DENVER STATE: CO ZIP: 80203 BUSINESS PHONE: 3038637414 S-3 1 FORM S-3 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 14, 1995 REGISTRATION NO. 33- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ NEWMONT MINING CORPORATION (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) ------------------------ DELAWARE 1700 LINCOLN STREET 13-1806811 (STATE OR OTHER JURISDICTION OF DENVER, COLORADO 80203 (I.R.S EMPLOYER INCORPORATION OR ORGANIZATION) (303) 863-7414 IDENTIFICATION NO.)
(Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) ------------------------ TIMOTHY J. SCHMITT, ESQ. NEWMONT MINING CORPORATION 1700 LINCOLN STREET DENVER, COLORADO 80203 (303) 863-7414 (Name, address, including zip code, and telephone number, including area code, of agent for service) ------------------------ COPIES TO: MAUREEN BRUNDAGE, ESQ. FRANCIS J. MORISON, ESQ. WHITE & CASE DAVIS POLK & WARDWELL 1155 AVENUE OF THE AMERICAS 450 LEXINGTON AVENUE NEW YORK, NEW YORK 10036 NEW YORK, NEW YORK 10017 (212) 819-8200 (212) 450-4000
------------------------ 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 - -------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------------------------- PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION SECURITIES REGISTERED REGISTERED PER UNIT OFFERING PRICE FEE - ----------------------------------------------------------------------------------------------------------- Common Stock (par value $1.60 per share).................................. 7,899,436 shares $41.00(1) $323,876,876(1) $111,681.68 - ----------------------------------------------------------------------------------------------------------- - -----------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee. Such estimate has been calculated pursuant to Rule 457(c) under the Securities Act of 1933, as amended, based on the average of the high and low sales price of the Common Stock as reported on the New York Stock Exchange on November 7, 1995. THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 PROSPECTUS 7,899,436 SHARES NEWMONT MINING CORPORATION COMMON STOCK ($1.60 PAR VALUE) This Prospectus relates to the sale from time to time of a maximum of 7,899,436 shares of Common Stock, par value $1.60 per share (the "Common Stock"), of Newmont Mining Corporation ("Newmont Mining" or the "Company") that have been or may be acquired by (i) Salomon Brothers Inc, Goldman Sachs & Co. and S.G.Warburg & Co. Inc. (collectively the "Purchasers") upon conversion of the Depositary Shares (the "Depositary Shares") of the Company, (ii) the Purchasers pursuant to the standby arrangement described herein and (iii) certain other stockholders identified in the accompanying Prospectus Supplement (the "Selling Stockholders") who elect to have sales made by them prior to December 7, 1995 of shares of Common Stock, that were issued upon conversion of the Depositary Shares covered by this Prospectus. See "Redemption of the Depositary Shares and Expiration of the Conversion Privilege -- Registration of Common Stock" and "-- Temporary Transfer Restrictions." The 7,899,436 shares of Common Stock of Newmont Mining offered hereby are the maximum number of shares of Common Stock issuable upon conversion of the Depositary Shares of the Company. Each Depositary Share represents ownership of 1/2 of a share of the $5.50 Convertible Preferred Stock, par value $5.00 per share (the "Convertible Preferred Stock"), of the Company and entitles the holder to all proportionate rights and preferences of the underlying Convertible Preferred Stock. The Company has called all of the shares of Convertible Preferred Stock for redemption on December 14, 1995 (the "Redemption Date"). As a consequence, the Depositary (as defined herein) has called the Depositary Shares for redemption on the Redemption Date at a redemption price of $51.925 per Depositary Share, plus an amount equal to unpaid dividends thereon from September 15, 1995 to and including the Redemption Date of $0.68 per Depositary Share, for a total redemption price of $52.605 per Depositary Share (the "Redemption Price"). No dividends will accrue on the Depositary Shares after the Redemption Date. Depositary Shares representing one or more whole shares of Convertible Preferred Stock are convertible into shares of Common Stock at a conversion price of $36.395 per share of Common Stock (equivalent to a conversion rate of 2.7476 shares of Common Stock for each whole share of Convertible Preferred Stock), prior to 5:00 p.m., New York City time, on December 4, 1995 (the "Final Conversion Date"), at which time the conversion right terminates. Depositary Shares representing less than one whole share of Convertible Preferred Stock will not be convertible into shares of Common Stock, but instead will be redeemed on the Redemption Date at the Redemption Price. Cash will be paid in lieu of any fractional shares of Common Stock. No payment or adjustment will be made for accrued and unpaid dividends on the Depositary Shares surrendered for conversion. THE ISSUANCE BY THE COMPANY OF THE DEPOSITARY SHARES, THE CONVERTIBLE PREFERRED STOCK AND THE SHARES OF COMMON STOCK ISSUED OR TO BE ISSUED UPON CONVERSION THEREOF HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). AS A RESULT, SHARES OF COMMON STOCK ACQUIRED UPON CONVERSION OF THE DEPOSITARY SHARES MAY BE SUBJECT TO CERTAIN TEMPORARY RESTRICTIONS ON TRANSFER AND RESALE, EXCEPT FOR SUCH SHARES OF COMMON STOCK ISSUED TO THE PURCHASERS OR SOLD BY THE SELLING STOCKHOLDERS PURSUANT TO THIS PROSPECTUS. SEE "REDEMPTION OF DEPOSITARY SHARES AND EXPIRATION OF CONVERSION PRIVILEGES -- REGISTRATION OF COMMON STOCK" AND "-- TEMPORARY TRANSFER RESTRICTIONS." In the event that less than all of the Depositary Shares are surrendered for conversion prior to 5:00 p.m., New York City time, on the Final Conversion Date, the Company has arranged for the Purchasers to purchase directly from the Company, at a price of $38.29 per share, up to such whole number of shares of Common Stock as would have been issuable upon conversion of any Depositary Shares not surrendered for conversion prior to 5:00 p.m., New York City time, on the Final Conversion Date. The proceeds from such sale will be used by the Company to redeem the Depositary Shares which have not been surrendered for conversion by the holders thereof. The Purchasers may also purchase Depositary Shares from existing holders thereof in compliance with the transfer restrictions applicable thereto prior to 5:00 p.m., New York City time, on the Final Conversion Date, and any Depositary Shares so purchased or otherwise held by the Purchasers 3 representing one or more whole shares of Convertible Preferred Stock will be converted into Common Stock. See "Standby Arrangement" for a description of the Purchasers' compensation and indemnification arrangements with the Company. THE CONVERSION RIGHT OF THE DEPOSITARY SHARES WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON MONDAY, DECEMBER 4, 1995. FROM AND AFTER THAT DATE AND TIME, HOLDERS OF DEPOSITARY SHARES WILL BE ENTITLED ONLY TO THE REDEMPTION PRICE, WITHOUT INTEREST. NO DIVIDENDS ACCRUED FOR THE PERIOD COMMENCING SEPTEMBER 15, 1995 WILL BE PAID ON DEPOSITARY SHARES DULY SURRENDERED FOR CONVERSION ON OR PRIOR TO THE FINAL CONVERSION DATE. The Company's Common Stock is traded on the New York Stock Exchange (the "NYSE") under the symbol "NEM". The Common Stock is also traded on the Paris Bourse and the Swiss Stock Exchanges. On November 13, 1995, the last reported sale price of the Common Stock on the NYSE was $41.625 per share. See "Price Range of Common Stock and Dividend Policy." While no assurance can be given as to any future prices for the Common Stock, as long as the market price of the Common Stock remains at or above $38.29 per share, holders of Depositary Shares who elect to convert their Depositary Shares will receive upon conversion shares of Common Stock (plus cash in lieu of fractional shares) having an aggregate current market value (without giving effect to commissions and other costs which would likely be incurred on sale) equal to or greater than the Redemption Price (assuming, in the case of any holder desiring to sell any such shares of Common Stock prior to December 7, 1995, that such holder is a Selling Stockholder so that such sale of shares of Common Stock will be covered by this Prospectus and will not be subject to the restrictions on transfer and resale described herein). It should be noted, however, that the price of the Common Stock received upon conversion will fluctuate in the market, and the holders may incur various expenses of sale if such Common Stock is sold. SEE "RISK FACTORS" BEGINNING ON PAGE 4 FOR INFORMATION THAT SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS IN THE COMMON STOCK. THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. Prior to 5:00 p.m., New York City time, on the Redemption Date, the Purchasers may offer to the public Common Stock, including shares acquired through the purchase and conversion of the Depositary Shares, at prices set from time to time by the Purchasers. It is intended that each such price when set will not exceed the greater of the last reported sale or current asked price of Common Stock on the NYSE, plus the amount of any applicable commissions or concessions to dealers, and it is intended that an offering price set on any calendar day will not be increased more than once during such day. At and after 5:00 p.m., New York City time, on the Redemption Date, the Purchasers may offer Common Stock at a price or prices to be determined, but it is presently intended that any such price will be determined in conformity with the preceding sentence. The Purchasers may thus realize profits or losses independent of the compensation referred to under "Standby Arrangement." The Purchasers have agreed that they will remit to the Company a portion of the profit realized on sales of shares of Common Stock acquired by the Purchasers directly from the Company pursuant to the standby arrangements described herein. Any Common Stock will be offered by the Purchasers when, as and if accepted by the Purchasers and subject to their right to reject orders in whole or in part. SALOMON BROTHERS INC GOLDMAN, SACHS & CO. S.G.Warburg & Co. Inc. THE DATE OF THIS PROSPECTUS IS NOVEMBER 14, 1995. 2 4 IN CONNECTION WITH THIS OFFERING, THE PURCHASERS MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE COMMON STOCK OR DEPOSITARY SHARES AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE, IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME. AVAILABLE INFORMATION The Company is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "1934 Act"), and, in accordance therewith, files reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). Such reports, proxy statements and other information can be inspected and copied at the public reference facilities maintained by the Commission at Judiciary Plaza, Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the following regional offices of the Commission: Seven World Trade Center, Suite 1300, New York, New York 10048; Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material can be obtained at prescribed rates by writing to the Commission, Public Reference Section, 450 Fifth Street, N.W., Washington, D.C. 20549. Such material can also be inspected at the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005 on which exchange the Common Stock of the Company is listed. This Prospectus constitutes part of a registration statement (the "Registration Statement") filed by the Company with the Commission under the Securities Act. This Prospectus omits certain of the information contained in the Registration Statement, and reference is hereby made to the Registration Statement and to the exhibits relating thereto for further information with respect to the Company and the Common Stock offered hereby. Any statements contained herein concerning the provisions of any document are not necessarily complete, and, in each instance, reference is made to the copy of such document filed as an exhibit to the Registration Statement or otherwise filed with the Commission. Each such statement is qualified in its entirety by such reference. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The Company hereby incorporates by reference in this Prospectus the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1994 and the Company's Quarterly Reports on Form 10-Q for the quarters ended March 31, 1995, June 30, 1995 and September 30, 1995, which have been filed with the Commission. All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of this Prospectus and prior to the termination of the offering of the Common Stock offered hereby shall be deemed to be incorporated by reference in this Prospectus and to be a part hereof from the date of filing of such documents. Any statement contained herein or in a document all or a portion of which is incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON, INCLUDING BENEFICIAL OWNERS, TO WHOM A COPY OF THIS PROSPECTUS HAS BEEN DELIVERED, ON THE REQUEST OF ANY SUCH PERSON, A COPY OF ANY OR ALL OF THE DOCUMENTS REFERRED TO ABOVE WHICH HAVE BEEN OR MAY BE INCORPORATED IN THIS PROSPECTUS BY REFERENCE, OTHER THAN EXHIBITS TO SUCH DOCUMENTS (UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE INTO SUCH DOCUMENTS). REQUEST FOR SUCH COPIES SHOULD BE DIRECTED TO THE OFFICE OF THE SECRETARY, NEWMONT MINING CORPORATION, 1700 LINCOLN STREET, DENVER, COLORADO 80203, TELEPHONE: (303) 863-7414. 3 5 RISK FACTORS Prospective purchasers in shares of the Common Stock offered hereby should carefully read this Prospectus and the documents incorporated by reference herein. In determining whether to purchase the shares of Common Stock being offered hereby, prospective purchasers should carefully consider the following factors, in addition to the other information contained in this Prospectus or incorporated by reference herein. GOLD PRICE VOLATILITY The Company's sole asset is a controlling equity interest in Newmont Gold Company ("Newmont Gold"), a worldwide company engaged in gold production, exploration for gold and acquisition of gold properties. The profitability of the Company's current operations is significantly affected by changes in the market price of gold. Market gold prices can fluctuate widely and are affected by numerous factors beyond the Company's control, including industrial and jewelry demand, expectations with respect to the rate of inflation, the strength of the U.S. dollar (the currency in which the price of gold is generally quoted) and of other currencies, interest rates, central bank sales, forward sales by producers, global or regional political or economic events, and production and cost levels in major gold-producing regions such as South Africa. In addition, the price of gold sometimes is subject to rapid short-term changes because of speculative activities. The current demand for and supply of gold affect gold prices, but not necessarily in the same manner as current supply and demand affect the prices of other commodities. The supply of gold consists of a combination of new mine production and existing stocks of bullion and fabricated gold held by governments, public and private financial institutions, industrial organizations and private individuals. As the amounts produced in any single year constitute a very small portion of the total potential supply of gold, normal variations in current production do not necessarily have a significant impact on the supply of gold or on its price. If the Company's revenue from gold sales falls for a substantial period below its cost of production at any or all of its operations, the Company could determine that it is not economically feasible to continue commercial production at any or all of its operations or to continue the development of some or all of its projects. The Company's consolidated weighted average cash cost of equity production (which is equivalent to the weighted average costs applicable to sales per ounce of equity production) for its Nevada, Peruvian and Uzbekistan operations was $204 per ounce of gold sold in 1994, $198 in 1993 and $198 in 1992 and $211 for the first nine months of 1995. The gold market generally is characterized by volatile prices. The volatility of gold prices is illustrated in the following table of annual high, low and average afternoon fixing prices of gold per ounce on the London Bullion Market:
YEAR HIGH LOW AVERAGE -------------------------------------------- ---- ---- ------- 1985........................................ $341 $284 $ 317 1986........................................ 438 326 368 1987........................................ 500 390 446 1988........................................ 484 395 437 1989........................................ 416 356 381 1990........................................ 424 346 383 1991........................................ 403 344 362 1992........................................ 360 330 344 1993........................................ 406 326 360 1994........................................ 395 378 384 1995 (through November 13)................... 396 372 384
- --------------- Source of Data: Metals Week On November 13, 1995, the afternoon fixing price for gold on the London Bullion Market was $388 per ounce and the spot market price of gold on the New York Commodity Exchange was $387. ORE RESERVE ESTIMATES The proven and probable ore reserve figures presented in the Company's Annual Report on Form 10-K for the year ended December 31, 1994, which is incorporated in this Prospectus by reference, are estimates, 4 6 and no assurance can be given that the indicated level of recovery of gold will be realized. Reserve estimates may require revision based on actual production experience. Market price fluctuations of gold, as well as increased production costs or reduced recovery rates, may render proven and probable ore reserves containing relatively lower grades of mineralization uneconomic to exploit and may ultimately result in a restatement of the Company's proven and probable ore reserves. The gold price used in estimating Newmont Gold's proven and probable ore reserves as of December 31, 1994 was $400 per ounce. Newmont Gold believes that if its Carlin reserve estimates were to be based on gold prices as low as $300 per ounce with current operating costs, 1994 year-end reserves would decrease by approximately 17%. REGULATION AND ENVIRONMENTAL MATTERS The Company's domestic and foreign mining operations and exploration activities are subject to extensive laws and regulations governing prospecting, developing, production, exports, taxes, labor standards, occupational health, waste disposal, protection and remediation of the environment, protection of endangered and protected species, mine safety, toxic substances and other matters. Mining is subject to potential risks and liabilities associated with pollution of the environment and the disposal of waste products occurring as a result of mineral exploration and production. The Company has been and may in the future be also subject to clean-up liability under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 and comparable state laws which establish clean-up liability for the release of hazardous substances. In the context of environmental permitting, including the approval of reclamation plans, the Company must comply with standards, existing laws and regulations which may entail greater or lesser costs and delays depending on the nature of the activity to be permitted and how stringently the regulations are implemented by the permitting authority. It is possible that the costs and delays associated with the compliance with such laws, regulations and permits could become such that the Company would not proceed with the development of a project or the operation or further development of a mine. During the past three years, the U.S. Congress considered a number of proposed amendments to the General Mining Law of 1872, as amended (the "General Mining Law"), which governs mining claims and related activities on federal lands. In 1992, a holding fee of $100 per claim was imposed upon unpatented mining claims located on federal lands. In October 1994, a one-year moratorium on the processing of new patent applications was approved. While such moratorium currently remains in effect, its future is unclear. In addition, a variety of legislation is now pending before the U.S. Congress to amend further the General Mining Law. The proposed legislation would, among other things, change the current patenting procedures, impose royalties, and enact new reclamation, environmental controls and restoration requirements. The royalty proposals range from a 2% royalty on "net profits" from mining claims to an 8% royalty on modified gross income/net smelter returns. Although the extent of any such changes is not presently known, approximately 92% of Newmont Gold's proven and probable ore reserves in the U.S. are located on private land and, therefore, are not subject to such amendments. Amendments to current laws and regulations governing operations and activities of mining companies or more stringent implementation thereof are actively considered from time to time and could have a material adverse impact on the Company. RISKS OF FOREIGN INVESTMENTS Certain of the Company's projects are located in foreign countries. The Company's foreign investments, which include projects in the Republic of Uzbekistan, Peru and Indonesia, are subject to the risks normally associated with conducting business in foreign countries, including labor disputes and uncertain political and economic environments, as well as risks of war and civil disturbances or other risks which may limit or disrupt the projects, restrict the movement of funds or result in the deprivation of contract rights or the taking of property by nationalization or expropriation without fair compensation laws or policies of particular countries, foreign taxation, limitations on ownership and on repatriation of earnings, and foreign exchange controls and currency fluctuations. Although the Company has not experienced any significant problem in foreign countries arising from such risks, there can be no assurance that such problems will not arise in the future. While political risk insurance from the Overseas Private Investment Corporation and/or the Multilateral Investment 5 7 Guarantee Agency has been obtained to cover a portion of the Company's investments in Peru and the Republic of Uzbekistan against certain expropriation, war, civil unrest and political violence risks, such insurance is limited by its terms to the particular risks specified therein and is subject to certain exclusions. There can therefore be no assurance that claims would be paid under such insurance in connection with a particular event in a foreign country. Foreign investments may also be adversely affected by laws and policies of the U.S. affecting foreign trade, investment and taxation. SPECULATIVE NATURE OF GOLD EXPLORATION AND DEVELOPMENT Gold exploration is highly speculative in nature, involves many risks and frequently is nonproductive. There can be no assurance that the Company's gold exploration efforts will be successful. Once gold mineralization is discovered, it may take a number of years from the initial phases of drilling until production is possible, during which time the economic feasibility of production may change. Substantial expenditures are required to establish proven and probable ore reserves through drilling, to determine metallurgical processes to extract the metals from the ore and, in the case of new properties, to construct mining and processing facilities. As a result of these uncertainties, no assurance can be given that the Company's exploration programs will result in the expansion or replacement of current production with new proven and probable ore reserves. Development projects have no operating history upon which to base estimates of future cash operating costs. Particularly for development projects, estimates of proven and probable ore reserves and cash operating costs are, to a large extent, based upon the interpretation of geologic data obtained from drill holes and other sampling techniques, and feasibility studies which derive estimates of cash operating costs based upon anticipated tonnage and grades of ore to be mined and processed, the configuration of the ore body, expected recovery rates of the gold from the ore, comparable facility and equipment operating costs, anticipated climatic conditions and other factors. As a result, it is possible that actual cash operating costs and economic returns may differ significantly from those currently estimated. It is not unusual in new mining operations to experience unexpected problems during the start-up phase. MINING RISKS AND INSURANCE The business of gold mining is generally subject to a number of risks and hazards, including environmental hazards, industrial accidents, labor disputes, encountering unusual or unexpected geologic formations, cave-ins, flooding, rock falls, periodic interruptions due to inclement or hazardous weather conditions, gold bullion losses and other acts of God. Such risks could result in damage to, or destruction of, mineral properties or producing facilities, personal injury or death, environmental damage, delays in mining, monetary losses and possible legal liability. The Company maintains insurance against risks which are typical in the operation of its business and in amounts which the Company believes to be reasonable, but no assurance can be given that such insurance will continue to be available, will be available at economically acceptable premiums or will be adequate to cover any resulting liability. THE COMPANY GENERAL Newmont Mining is a U.S. company whose sole asset is a controlling equity interest in Newmont Gold. Newmont Gold is a worldwide company engaged in gold production, exploration for gold and acquisition of gold properties. Effective January 1, 1994, Newmont Gold acquired all of Newmont Mining's operations. The transaction (the "Transfer Transaction") included the transfer by Newmont Mining to Newmont Gold of all of Newmont Mining's assets, except for 85,850,101 shares of common stock of Newmont Gold ("Newmont Gold Common Stock"), and the assumption by Newmont Gold of all the liabilities of Newmont Mining, except for certain of Newmont Mining's obligations (including those with respect to the Convertible Preferred Stock). In addition, Newmont Gold issued to Newmont Mining 2,875,000 shares of $5.50 convertible preferred stock, par value $5.00 per share (the "Newmont Gold Convertible Preferred Stock"), having terms identical to the Convertible Preferred Stock of Newmont Mining described herein (except that the Newmont Gold Convertible Preferred Stock is 6 8 convertible into shares of Newmont Gold Common Stock), as well as stock options exercisable for Newmont Gold Common Stock. As a result of the Transfer Transaction, Newmont Mining's only assets are (i) the remaining shares of Newmont Gold Common Stock held by it, which currently represent approximately 89.2% of the outstanding Newmont Gold Common Stock, (ii) the 2,875,000 shares of Newmont Gold Convertible Preferred Stock and (iii) Newmont Gold's stock options issued to it. As a result of the Transfer Transaction, effective January 1, 1994, Newmont Mining had no other interest or assets and conducts no operations. Shares of both Newmont Mining and Newmont Gold trade separately on the NYSE and certain other international exchanges. Both Newmont Mining and Newmont Gold have the same per-share earnings, equity in assets and dividends. In connection with the redemption by Newmont Mining of its Convertible Preferred Stock as described herein, Newmont Gold will call for redemption on the Redemption Date all of the outstanding shares of the Newmont Gold Convertible Preferred Stock. Newmont Mining intends to convert shares of Newmont Gold Convertible Preferred Stock held by it into shares of Newmont Gold Common Stock on or prior to the Final Conversion Date in an amount equal to the number of Convertible Preferred Shares that are converted as a result of the conversion of Depositary Shares by the holders thereof, including the Purchasers. Any Newmont Gold Convertible Preferred Stock remaining outstanding after the Final Conversion Date will be redeemed by Newmont Gold on the Redemption Date. In addition, Newmont Mining intends to purchase from Newmont Gold shares of Newmont Gold Common Stock in an amount equal to the number of shares of Newmont Mining Common Stock sold to the Purchasers pursuant to the stand by arrangement described herein. As a result, Newmont Mining will own approximately 90% of the outstanding shares of Newmont Gold Common Stock and will continue to own options to purchase additional shares of Newmont Gold Common Stock. Newmont Gold currently produces gold from the Carlin Trend in Nevada. Newmont Gold also produces gold through a 38% owned venture in Peru, which commenced operations in August 1993, and a 50% owned venture in Uzbekistan, which commenced gold production in September 1995. Newmont Gold additionally has an 80% owned venture in Indonesia, which is scheduled to commence gold production in early 1996 and an 80% interest in a large copper/gold project in Indonesia which is currently in the feasibility stage. In addition to exploration activities conducted in connection with the above-referenced operations and projects, Newmont Gold continues to explore for gold and/or is conducting joint venture discussions in various countries, including Mexico, Canada, Ecuador, Laos and in the United States. Newmont Gold had approximately 26.1 million equity ounces of proven and probable gold ore reserves at December 31, 1994 and produced approximately 1.7 million equity ounces of gold in 1994. In December 1994, the Company concluded that the geological model used by the previous owner of the Grassy Mountain property in Oregon was inadequate to support mine development. Pending completion of additional evaluations, 996,000 ounces of previously classified proven and probable reserves were then no longer classified as reserves as of December 31, 1994. In 1995, the Company has continued to evaluate the deposit to determine its economic potential. Based on results to date, the deposit has not met the Company's criteria for development. The final results of such evaluation are expected to be completed in the fourth quarter of 1995. If the final results conclude that the deposit does not meet such criteria, the Company will write down or write off its $33.7 million investment in this property. Since the Company's only asset is a controlling equity interest in Newmont Gold, the rights of the Company to participate in any distribution of assets of Newmont Gold upon its liquidation or reorganization or otherwise (and thus the ability of holders of the shares of Common Stock to benefit from such distribution) are subject to prior claims of creditors of Newmont Gold, except to the extent that the Company may itself be a creditor with recognized claims against Newmont Gold. Claims on Newmont Gold by creditors may include claims of holders of indebtedness and claims of creditors in the ordinary course of business. Such claims may increase or decrease, and additional claims may be incurred in the future. Newmont Mining was incorporated in 1921 under the laws of Delaware and maintains its principal executive offices at 1700 Lincoln Street, Denver, Colorado 80203 (telephone: (303) 863-7414). RECENT DEVELOPMENTS On November 7, 1995, Newmont Gold and a subsidiary of Newmont Gold filed a complaint against Barrick Goldstrike Mines Inc. ("Barrick Goldstrike") and Barrick Gold Corporation in state court in the State of Nevada. The complaint alleges that Barrick Goldstrike's mine dewatering disposal practices are 7 9 causing unnatural and unauthorized flooding, saturation and damage to property owned by Newmont Gold and its subsidiary, and that these conditions constitute both a trespass and a breach of a 1992 contract between Newmont Gold and Barrick Goldstrike, pursuant to which Barrick Goldstrike is mining a gold ore body in Nevada owned in part by Barrick Goldstrike and in part by Newmont Gold. The complaint also alleges that these conditions, if unabated, may give rise to violations of environmental laws and regulations. In connection with the complaint, Newmont Gold is seeking a judicial declaration that Barrick Goldstrike lacks the legal right to dispose of mine water on the land at issue, an injunction against further flooding and saturation of the property, and compensatory and punitive damages. USE OF PROCEEDS The net proceeds to the Company from the sale of the Common Stock to the Purchasers pursuant to the agreement described under "Standby Arrangement" will be used by the Company to fund the redemption of any Depositary Shares not surrendered for conversion prior to 5:00 P.M., New York City time, on the Final Conversion Date. Any excess net proceeds, resulting from the Purchasers' remitting certain amounts to the Company (see "Standby Arrangement"), will be contributed to Newmont Gold, which in turn will use such proceeds for general corporate purposes. Pending such uses, it is anticipated that the net proceeds will be invested in short-term investments. The Company will not receive any proceeds from the issuance of Common Stock to holders (including the Purchasers) upon conversion of Depositary Shares. PRICE RANGE OF COMMON STOCK AND DIVIDEND POLICY The Common Stock is listed on the NYSE (under the symbol "NEM"). The following table sets forth, for the periods indicated, the high and low sale prices per share of the Common Stock as reported on the NYSE Composite Transactions Tape, as adjusted for an April 1994 1.2481-for-1 stock split.
HIGH LOW ------ ------ 1993 First Quarter.......................................................... $36.00 $29.63 Second Quarter......................................................... $43.25 $32.13 Third Quarter.......................................................... $47.13 $35.88 Fourth Quarter......................................................... $46.38 $37.63 1994 First Quarter.......................................................... $48.07 $40.67 Second Quarter......................................................... $45.67 $37.63 Third Quarter.......................................................... $46.75 $38.25 Fourth Quarter......................................................... $45.50 $33.88 1995 First Quarter.......................................................... $43.88 $33.13 Second Quarter......................................................... $45.25 $38.25 Third Quarter.......................................................... $46.25 $41.13 Fourth Quarter (through November 13, 1995).............................. $43.63 $36.63
The last reported sale price of the Common Stock on the NYSE on November 13, 1995, was $41.625 per share. On November 10, 1995, there were approximately 5,655 stockholders of record of Common Stock. The Company has paid cash dividends on its Common Stock at a rate of $0.48 per share of Common Stock in each of the past five years. The determination of the amount of future dividends, however, will be made by the Company's Board of Directors from time to time and will depend on the future earnings, capital requirements and financial condition of the Company, Newmont Gold and Newmont Gold's subsidiaries, as well as other relevant factors. The Company expects to declare its regular quarterly dividend on the Common Stock on or about Wednesday, November 15, 1995. In order to be entitled to such dividend, holders of Depositary Shares would have to convert the Depositary Shares into shares of Common Stock on or prior to the record date established by the Company for purposes of such dividend. CAPITALIZATION The following table sets forth the consolidated capitalization of the Company at September 30, 1995, and as adjusted to give effect to the assumed conversion of all of the Depositary Shares and the underlying 8 10 Convertible Preferred Stock, the issuance of 7,899,436 shares of Common Stock upon such conversion, net of certain expenses associated therewith, and the conversion by the Company of the Newmont Gold Convertible Preferred Stock.
SEPTEMBER 30, 1995 ----------------------- ACTUAL AS ADJUSTED --------- ----------- (IN THOUSANDS) SHORT-TERM DEBT, INCLUDING CURRENT PORTION OF LONG-TERM DEBT........ $ 28,161 $ 28,161 --------- ----------- LONG-TERM DEBT LESS CURRENT PORTION................................. 604,259 604,259 MINORITY INTEREST IN NEWMONT GOLD................................... 87,968 82,392 STOCKHOLDERS' EQUITY Convertible Preferred Stock -- $5.00 par value; 2,875,000 shares issued and outstanding, none as adjusted(1).................... 14,375 -- Common stock -- $1.60 par value; 120,000,000 shares authorized; 86,869,000 issued and 94,769,000 as adjusted, less 643,000 treasury shares................................................ 137,963 150,602 Capital in excess of par value.................................... 307,423 305,286 Retained earnings................................................. 284,301 290,153 --------- ----------- Total stockholders' equity........................................ 744,062 746,041 --------- ----------- TOTAL CAPITALIZATION................................................ $1,436,289 $1,432,692 ========= =========
- --------------- (1) The outstanding Convertible Preferred Stock has been called for redemption by the Company on December 14, 1995. SELECTED FINANCIAL DATA The following sets forth certain information regarding the Company's consolidated results of operations and financial position for the periods indicated. The data presented below should be read in conjunction with the financial information included elsewhere in this Prospectus and the Company's consolidated financial statements and the notes thereto incorporated by reference herein.
NINE MONTHS ENDED SEPTEMBER 30, YEAR ENDED DECEMBER 31, ----------------------- ------------------------------------- 1995 1994 1994 1993 1992 --------- --------- --------- --------- --------- (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) INCOME STATEMENT DATA: Sales........................ $ 451,849 $ 439,168 $ 597,370 $ 628,809 $ 605,897 Income before cumulative effect of change in accounting principles...... $ 108,645(1) $ 59,337 $ 76,121 $ 94,669 $ 90,621 Net income................... $ 108,645(1) $ 59,337 $ 76,121 $ 133,139(2) $ 79,049(3) Earnings per common share: Income before cumulative effect of change in accounting principles... $1.12(1) $0.55 $0.70 $0.92 $1.04 Net income................. $1.12(1) $0.55 $0.70 $1.37(2) $0.90(3) Dividends declared per common share............ $0.36 $0.36 $0.48 $0.48 $0.48 BALANCE SHEET DATA (AT PERIOD END): Total assets................. $1,780,065 $1,624,380 $1,656,657 $1,186,410 $1,236,304 Total debt................... $ 632,420 $ 609,373 $ 609,373 $ 207,739 $ 276,630 Stockholders' equity......... $ 744,062 $ 668,656 $ 673,465 $ 629,832 $ 528,565
- --------------- 9 11 (1) Reflects an after-tax gain of approximately $72 million, or $0.75 per share, for the sale of the Company's interest in Southern Peru Copper Corporation, and an after-tax charge of approximately $15.1 million, or $0.16 per share, for the write-off and reclamation provision for an exploration property. (2) Reflects the cumulative effect of adopting Statement of Financial Accounting Standards No. 109, "Accounting for Income Taxes," effective January 1, 1993, which resulted in a credit of $38.5 million or $0.45 per share. (3) Reflects the cumulative effect of adopting Statement of Financial Accounting Standards No. 106, "Employers' Accounting for Postretirement Benefits Other Than Pensions," effective January 1, 1992 which resulted in a net-after tax charge of $11.6 million or $0.14 per share. REDEMPTION OF DEPOSITARY SHARES AND EXPIRATION OF CONVERSION PRIVILEGES GENERAL Each Depositary Share represents 1/2 share of the Convertible Preferred Stock deposited under the Deposit Agreement, dated as of November 15, 1992, (the "Deposit Agreement"), among the Company, Chemical Bank, as Depositary (the "Depositary"), and the holders from time to time of the depositary receipts (the "Depositary Receipts") issued thereunder. The Company has called all of the outstanding Convertible Preferred Stock for redemption on the Redemption Date pursuant to the terms of the Company's Certificate of Designations for the Convertible Preferred Stock. As a result, the Depositary has called the Depositary Shares for redemption on the Redemption Date at a redemption price of $51.925 per Depositary Share, plus accrued and unpaid dividends of $0.68 per Depositary Share to and including the Redemption Date, for a total redemption price of $52.605 per Depositary Share. No dividends will accrue on the Depositary Shares after the Redemption Date. In addition to the right to sell their Depositary Shares in compliance with the transfer restrictions applicable thereto and subject to the restrictions on such transfer set forth in the Deposit Agreement, holders of Depositary Shares have the right to convert their Depositary Shares into Common Stock. Depositary Shares representing one or more whole shares of Convertible Preferred Stock are convertible into such number of whole shares of Common Stock as is equal to the aggregate liquidation preference of the shares of Convertible Preferred Stock represented by the Depositary Shares surrendered for conversion divided by the conversion price of $36.395 per share of Common Stock, until 5:00 p.m., New York City time, on the Final Conversion Date (the day ten days prior to, or if such date is not a business day, the business day next preceding the tenth day before, the Redemption Date), at which time the conversion right terminates. No payment or adjustment will be made for accrued and unpaid dividends on the Depositary Shares surrendered for conversion. AT AND AFTER 5:00 P.M., NEW YORK CITY TIME, ON THE FINAL CONVERSION DATE, HOLDERS OF DEPOSITARY SHARES WILL BE ENTITLED ONLY TO THE REDEMPTION PRICE, WITHOUT INTEREST. PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE FINAL CONVERSION DATE, DEPOSITARY SHARES REPRESENTING ONE OR MORE WHOLE SHARES OF CONVERTIBLE PREFERRED STOCK MAY BE CONVERTED AT THE OPTION OF THE HOLDER INTO SHARES OF THE COMPANY'S COMMON STOCK, AT A CONVERSION PRICE OF $36.395 PER SHARE OF COMMON STOCK (EQUIVALENT TO A CONVERSION RATE OF 2.7476 SHARES OF COMMON STOCK FOR EACH WHOLE SHARE OF CONVERTIBLE PREFERRED STOCK). TO CONVERT ANY DEPOSITARY SHARES, THE HOLDER THEREOF MUST SURRENDER DEPOSITARY RECEIPTS, WITH WRITTEN INSTRUCTIONS IN THE FORM OF THE LETTER OF TRANSMITTAL PROVIDED TO ALL REGISTERED HOLDERS OF DEPOSITARY SHARES, TO THE DEPOSITARY TO CONVERT THE DEPOSITARY SHARES INTO SHARES OF COMMON STOCK. PRIOR TO DECEMBER 7, 1995, SHARES OF COMMON STOCK ISSUED UPON CONVERSION OF THE DEPOSITARY SHARES (OTHER THAN SHARES OF COMMON STOCK ISSUED TO ANY PURCHASERS OR SOLD BY ANY SELLING STOCKHOLDER) WILL BE EVIDENCED ONLY BY PHYSICAL CERTIFICATES AND CANNOT BE HELD THROUGH THE DEPOSITORY TRUST COMPANY ("DTC") OR ANY OTHER BOOK-ENTRY TRANSFER FACILITY, OR TRADED ON THE NYSE. COMMENCING ON DECEMBER 7, 1995, HOLDERS OF 10 12 SHARES OF COMMON STOCK ISSUED UPON CONVERSION OF THE DEPOSITARY SHARES WHO ARE NOT AFFILIATES (AS DEFINED UNDER RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY AND HAVE NOT BEEN AFFILIATES FOR A PERIOD OF AT LEAST THREE MONTHS PRIOR THERETO SHOULD BE ABLE TO HOLD SUCH SHARES OF COMMON STOCK THROUGH DTC OR ANOTHER BOOK-ENTRY TRANSFER SYSTEM AND SUCH SHARES MAY BE TRADED ON THE NYSE. NO DIVIDENDS ACCRUED FOR THE PERIOD COMMENCING SEPTEMBER 15, 1995 WILL BE PAID ON DEPOSITARY SHARES DULY SURRENDERED FOR CONVERSION ON OR PRIOR TO THE FINAL CONVERSION DATE. Depositary Shares representing less than one whole share of Convertible Preferred Stock (after aggregating the number of Depositary Shares surrendered by a holder for conversion) may not be converted into Shares of the Company's Common Stock, even when accompanied by other Depositary Shares representing one or more whole shares of Convertible Preferred Stock. Depositary Shares representing less than one whole share of Convertible Preferred Stock may either be surrendered for redemption or sold in compliance with the transfer restrictions applicable thereto and subject to the restrictions on such transfer set forth in the Deposit Agreement. No fractional shares of Common Stock will be issued upon conversion. Instead, a cash payment for each fractional share will be made by the Company on the basis of the closing sale price of the Common Stock, regular way, on the NYSE on the last trading day preceding the date of conversion. The Company's Common Stock is traded on the NYSE under the symbol "NEM". On November 13, 1995, the reported last sale price of the Common Stock on the NYSE was $41.625 per share. See "Price Range of Common Stock and Dividend Policy." WHILE NO ASSURANCE CAN BE GIVEN AS TO ANY FUTURE PRICES FOR THE COMMON STOCK, AS LONG AS THE MARKET PRICE OF THE COMMON STOCK REMAINS AT OR ABOVE $38.29 PER SHARE, HOLDERS OF DEPOSITARY SHARES WHO ELECT TO CONVERT THEIR DEPOSITARY SHARES WILL RECEIVE UPON CONVERSION SHARES OF COMMON STOCK (PLUS CASH IN LIEU OF FRACTIONAL SHARES) HAVING AN AGGREGATE CURRENT MARKET VALUE (WITHOUT GIVING EFFECT TO COMMISSIONS AND OTHER COSTS WHICH WOULD LIKELY BE INCURRED ON SALE) EQUAL TO OR GREATER THAN THE REDEMPTION PRICE (ASSUMING, IN THE CASE OF ANY HOLDER DESIRING TO SELL ANY SUCH SHARES OF COMMON STOCK PRIOR TO DECEMBER 7, 1995, THAT SUCH HOLDER IS A SELLING STOCKHOLDER SO THAT SUCH SALE OF SHARES OF COMMON STOCK WILL BE COVERED BY THIS PROSPECTUS AND WILL NOT BE SUBJECT TO RESTRICTIONS ON TRANSFER AND RESALE DESCRIBED BELOW UNDER "TEMPORARY TRANSFER RESTRICTIONS"). IT SHOULD BE NOTED, HOWEVER, THAT THE PRICE OF THE COMMON STOCK RECEIVED UPON CONVERSION WILL FLUCTUATE IN THE MARKET, AND THE HOLDERS MAY INCUR VARIOUS EXPENSES OF SALE IF SUCH COMMON STOCK IS SOLD. REGISTRATION OF COMMON STOCK The sale from time to time of shares of Common Stock acquired by the Purchasers (i) upon conversion of the Depositary Shares or (ii) pursuant to the standby arrangements described herein has been registered under the Securities Act pursuant to the Registration Statement of which this Prospectus forms a part. In addition, the sale of shares of Common Stock of Selling Stockholders who desire to offer and sell shares of Common Stock prior to December 7, 1995 has been registered under the Securities Act pursuant to the Registration Statement of which this Prospectus forms a part. In order to make an election to have an offer and sale of such shares of Common Stock covered by this Prospectus, the holder of such shares must provide a written notice (the "Notice") to such effect, containing the name of the person or entity for whose account the shares of Common Stock will be offered and sold, the nature of any position, office or other material relationship which such selling person or entity has had within the last three years with the Company or any of its affiliates, the number of the shares of Common Stock owned by such selling person or entity prior to the consummation of the proposed offering, the number of shares of Common Stock to be offered pursuant to the Prospectus for such selling person or entity's account and the number of shares of Common Stock and (if one percent or more) the percentage of the class to be owned by such selling person or entity after completion of the offering, as well as any other related information required under the Securities Act or the rules and regulations thereunder so as to enable such offer and sale to be made pursuant to this Prospectus. The Company will then prepare a supplement to this Prospectus containing the information described above and any other required information which will be furnished, together with this Prospectus, to the relevant holder, for use, in connection with any such offer and sale to be made prior to December 7, 1995. A Notice may be delivered to Chemical Bank, as transfer agent for the Common Stock (the "Transfer Agent"), between 9:00 a.m., New York City time, and 5:00 p.m., New York City time, on any day that the Transfer Agent is open for business. Notices should be sent by registered mail, overnight courier or facsimile to the Transfer Agent at Chemical Bank, c/o Chemical Mellon Shareholder Services, L.L.C., 450 West 33rd Street, 15th Floor, New York, New York 10001, Attention: Nathan Hill; facsimile: (212) 947-7628, Attention: Nathan Hill (telephone 212-946-7187). The Company will deliver to a Selling Stockholder the relevant prospectus supplement, together with this Prospectus, no 11 13 later than the third business day after the day the Notice from such Selling Stockholder is received by the Transfer Agent. For further information regarding the distribution of any such Selling Stockholder's Common Stock, see "Selling Stockholders." Commencing on December 7, 1995 (the third anniversary of the last issuance of the Depositary Shares), holders of shares of Common Stock issued upon conversion of the Depositary Shares (other than the Purchasers) who are not affiliates (as defined under Rule 144 under the Securities Act) of the Company and have not been affiliates for a period of at least three months prior thereto will be able to offer and sell such shares of Common Stock without restriction pursuant to Rule 144(k) under the Securities Act. Therefore, any offers or sales of shares of Common Stock by any Selling Stockholder after such date will not be made pursuant to this Prospectus. TEMPORARY TRANSFER RESTRICTIONS The following discussion applies to holders who do not elect to have their offers and sales of shares of Common Stock registered under the Securities Act, as set forth above under "Registration of Common Stock." A total of 5,750,000 Depositary Shares are currently outstanding. The Depositary Shares and the underlying Convertible Preferred Stock were not registered under the Securities Act. The Depositary Shares were issued in 1992 in an offering to qualified institutional buyers (as defined in Rule 144A under the Securities Act) ("QIBs"), to institutions that are "accredited investors" (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) ("institutional accredited investors") and outside the United States in reliance on Regulation S under the Securities Act. A total of 5,000,000 Depositary Shares were issued on November 19, 1992. An additional 750,000 Depositary Shares were issued on December 7, 1992 as a result of the exercise by the underwriter of its over-allotment option. Because of the fungibility of the Depositary Shares, it is not possible at this time for the Company to determine which Depositary Shares were issued on November 19, 1992 and which were issued on December 7, 1992. The issuance by the Company of the shares of Common Stock issued or to be issued upon conversion of the Depositary Shares has not been registered under the Securities Act and, except as set forth above under "Registration of Common Stock," may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons, except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act. As a result, except as set forth above under "Registration of Common Stock," shares of Common Stock received upon conversion of Depositary Shares may be offered and sold prior to December 7, 1995 only in transactions not requiring registration under the Securities Act (1) to institutional accredited investors that, prior to their purchase of the shares of Common Stock, deliver to the holder a letter in a form which can be obtained from Transfer Agent, (2) outside the United States to persons other than U.S. persons ("foreign purchasers", which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act and (3) pursuant to the exemption from registration provided by Rule 144 under the Securities Act (if available). Each holder converting Depositary Shares for Common Stock will be required to (1) represent that it is purchasing the Common Stock for its own account or for one of its accounts and that both it and such account are QIBs or both it and such account are accredited investors (except if the holder is a bank (as defined under Section 3(a)(2) of the Securities Act) acting in a fiduciary capacity in which case any account for which it is acting in a fiduciary capacity need not be an accredited investor) or both it and such account are foreign purchasers that are outside the United States (or foreign purchasers that are dealers or other fiduciaries as referred to above), (2) acknowledge that the issuance of the shares of the Common Stock has not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except as set forth below, (3) agree that if it should resell or otherwise transfer any of the Common Stock prior to December 7, 1995 it will do so only pursuant to this Prospectus (in compliance with the procedures set forth above under "Registration of Common Stock"), or in transactions not requiring registration under the Securities Act (a) to institutional accredited investors who, prior to such transfer, furnishes to the Transfer Agent a signed letter containing certain representations and agreements relating to the restrictions on transfer of such shares of Common Stock (the form of which letter can be obtained from the Transfer Agent), (b) outside the 12 14 United States in compliance with Rule 904 under the Securities Act or (c) pursuant to the exemption from registration provided by Rule 144 under the Securities Act (if available) and (4) agree that, in connection with any transfer pursuant to clause 3(a), (b) or (c) above, it will give the purchaser or transferee notice of any restrictions on transfer of such shares of Common Stock. In addition, in the case of any proposed transfer prior to December 7, 1995 (other than those being made pursuant to this Prospectus), the holder will be required to furnish to the Transfer Agent such certifications, legal opinions or other information as it may reasonably require to confirm that the proposed transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act. Prior to December 7, 1995, each stock certificate evidencing shares of Common Stock issued upon conversion of Depositary Shares or transfer of such shares of Common Stock (other than shares of Common Stock issued to the Purchasers or sold by the Selling Stockholders pursuant to this Prospectus) will be issued in certificated form only and will bear a legend in substantially the following form: THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. THE HOLDER HEREOF AGREES THAT UNTIL DECEMBER 7, 1995, IT WILL NOT RESELL OR OTHERWISE TRANSFER THE COMMON STOCK EVIDENCED HEREBY EXCEPT IN (A) A TRANSACTION REGISTERED UNDER THE SECURITIES ACT, OR (B) A TRANSACTION NOT REQUIRING REGISTRATION UNDER THE SECURITIES ACT (1) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO CHEMICAL BANK, AS TRANSFER AGENT OF THE COMMON STOCK, A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE COMMON STOCK EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRANSFER AGENT), (2) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR (3) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND, IN CONNECTION WITH ANY SUCH TRANSFER PURSUANT TO CLAUSE (1), (2) OR (3) ABOVE, IT WILL FURNISH TO CHEMICAL BANK, AS TRANSFER AGENT, SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IT WILL DELIVER TO EACH PERSON TO WHOM THE COMMON STOCK EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED AFTER DECEMBER 7, 1995 OR UPON THE EARLIER SATISFACTION OF CHEMICAL BANK, AS TRANSFER AGENT, THAT THE COMMON STOCK HAS BEEN OR IS BEING OFFERED AND SOLD IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT. AS USED HEREIN, THE TERMS "UNITED STATES" AND "UNITED STATES PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. Prior to December 7, 1995, shares of Common Stock received upon conversion of Depositary Shares (other than shares of Common Stock issued to the Purchasers or sold by the Selling Stockholders pursuant hereto) may not be traded on the NYSE and may not be held in book-entry form through DTC or any other book-entry transfer facility. Commencing on December 7, 1995, holders of shares of Common Stock issued upon conversion of the Depositary Shares who are not affiliates (as defined under Rule 144 under the Securities Act) of the Company and have not been affiliates for a period of at least three months prior thereto will be able to offer and sell such 13 15 shares of Common Stock without restriction pursuant to Rule 144(k) under the Securities Act, and such shares of Common Stock may be traded on the NYSE and held in book-entry form through DTC or another book-entry transfer facility. DESCRIPTION OF CAPITAL STOCK The authorized capital of the Company consists of 5,000,000 shares of preferred stock, par value $5.00 per share, issuable in series, of which, as of November 9, 1995, 2,875,000 shares of $5.50 Convertible Preferred Stock, par value $5.00 per share (the "Convertible Preferred Stock") were issued and outstanding and 240,000 shares of Series A Junior Participating Convertible Preferred Stock, par value $5.00 per share (the "Junior Preferred Shares") were reserved for issuance and 250,000,000 shares of Common Stock, par value $.01 per share, of which, as of November 9, 1995, 86,226,703 were issued and outstanding. All of the outstanding shares of capital stock of the Company are fully paid and nonassessable. Holders of the Company's capital stock have no preemptive rights. The Company has called all of the outstanding shares of Convertible Preferred Stock for redemption on the Redemption Date pursuant to the terms of the Company's Certificate of Designations for the Convertible Preferred Stock. DESCRIPTION OF COMMON STOCK The statements set forth below are summaries of certain provisions relating to the Common Stock of the Company. These summaries contain all material provisions, but do not purport to be complete and are subject to, and are qualified in their entirety by, the provisions of the Company's Restated Certificate of Incorporation, as amended, a copy of which is filed as an exhibit to the Registration Statement of which this Prospectus forms a part. DIVIDEND RIGHTS Subject to the prior rights as to dividends of any preferred stock which may be outstanding from time to time, the Common Stock is entitled to receive dividends out of assets legally available therefor at such times and in such amounts as the Board of Directors may from time to time determine. VOTING RIGHTS Subject to the voting rights, if any, of any preferred stock which may be outstanding from time to time, all voting rights are vested in the holders of shares of the Common Stock. Each outstanding share of Common Stock is entitled to one vote on all matters submitted to a vote of stockholders. There is no cumulative voting. The Board of Directors is expressly authorized to adopt, amend or repeal the By-laws of the Company in any manner not inconsistent with the laws of the State of Delaware or the Restated Certificate of Incorporation of the Company, subject to the power of the stockholders to adopt, amend or repeal the By-laws or to limit or restrict the power of the Board of Directors to adopt, or repeal the By-laws, and the Company may in its By-laws confer powers and authorities upon its Board of Directors in addition to those conferred upon it by statute. LIQUIDATION RIGHTS Subject to the prior rights of creditors and the holders of any preferred stock which may be outstanding from time to time, the shares of Common Stock are entitled, in the event of voluntary or involuntary liquidation, dissolution or winding up, to share pro rata in the distribution of all remaining assets of the Company which are legally available for distribution, after payment of all debts and other liabilities. REDEMPTION AND PREEMPTIVE RIGHTS The shares of Common Stock are neither redeemable nor convertible, and the holders thereof have no preemptive or subscription rights to purchase any securities of the Company. APPROVAL OF CERTAIN MERGERS, CONSOLIDATIONS, SALES AND LEASES Article NINTH of the Company's Restated Certificate of Incorporation provides that, with certain exceptions noted below, the affirmative vote of the holders of four-fifths of all classes of stock of the Company 14 16 entitled to vote in elections of directors (considered as one class) shall be required (a) for the adoption of an agreement for the merger or consolidation of the Company with any other corporation, or (b) to authorize any sale or lease of all or any substantial part of the assets of the Company to, or any sale or lease to the Company or any subsidiary thereof in exchange for securities of the Company of any assets (except assets having an aggregate fair market value of less than $10 million) of, any other corporation, person or entity if, in either case, such other corporation, person or entity is the beneficial owner, directly or indirectly, of more than 10% of all outstanding shares of stock of the Company entitled to vote in elections of directors (a "10% Holder"). Such affirmative vote or consent shall be in addition to the vote of the holders of the stock of the Company otherwise required by law or any agreement between the Company and any national securities exchange. For the purposes of Article NINTH, any corporation, person or entity shall be deemed to be the beneficial owner of any shares of stock of the Company (i) which it has the right to acquire pursuant to any agreement, or upon exercise of conversion rights, warrants or options, or otherwise, or (ii) which are beneficially owned, directly or indirectly by any other corporation, person or entity, with which it or its affiliates or associates (as defined in the Restated Certificate of Incorporation) have any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of stock of the Company, or which is its affiliate or associate. Article NINTH does not apply to any transaction with any other corporation, person or entity (i) if the Board of Directors of the Company has approved a memorandum of understanding with such other corporation, person or entity with respect to such transaction prior to the time that such other corporation, person or entity shall have become a 10% Holder or (ii) in case of a corporation, if the Company and its subsidiaries own a majority of the outstanding shares of all classes of stock entitled to vote in elections of directors. Article NINTH can be altered or repealed only upon the affirmative vote of the record holders of four-fifths of all classes of stock of the Company entitled to vote in elections of directors, considered as one class. Article NINTH might be characterized as an anti-takeover provision since it may render more difficult certain possible takeover proposals to acquire control of the Company and make removal of management of the Company more difficult. EQUAL VALUE RIGHTS PLAN Each outstanding share of Common Stock carries with it a dividend distribution of one equal value right (an "Equal Value Right"). The terms of the Equal Value Rights are set forth in a Rights Agreement, dated as of September 23, 1987, as amended (the "Equal Value Rights Agreement"), between the Company and Chemical Bank, as Rights Agent. The following is a summary of the Equal Value Rights Agreement. This summary contains all material provisions, but does not purport to be complete and is subject to, and is qualified in its entirety by reference to, the provisions of the Equal Value Rights Agreement. A copy of the Equal Value Rights Agreement and the amendments thereto are filed as exhibits to the Registration Statement of which this Prospectus forms a part. Each Equal Value Right entitles the record holder to receive from the Company on or after the date of any Extraordinary Transaction (as hereinafter defined) an amount in cash equal to the amount, if any, by which the Equal Value Price (as hereinafter defined) exceeds the sum of the cash consideration and the fair market value of the non-cash consideration paid for each share of Common Stock in the Extraordinary Transaction. Unless earlier redeemed or unless an Extraordinary Transaction has theretofore occurred, the Equal Value Rights will expire at the close of business on September 23, 1997. The term "Extraordinary Transaction" means an event in which, within two years of the Control Date (as hereinafter defined) the Company, directly or indirectly, effects a merger, consolidation or other extraordinary corporate transaction in which the Common Stock is changed into or exchanged for securities, cash or other property. The term "Equal Value Price" means the highest price per share paid by a Controlling Person (as hereinafter defined) for any share of Common Stock acquired by it within 91 days prior to and including the Control Date, as such price is adjusted pursuant to the Equal Value Rights Agreement. The Equal Value Rights are evidenced by the certificates representing outstanding shares of Common Stock, and no certificates representing the Equal Value Rights have been distributed. The Equal Value Rights 15 17 will separate from the Common Stock and an Equal Value Distribution Date will occur on the first date of public announcement by the Company or a person (a "Controlling Person") who, together with all Affiliates and Associates (as each term is defined in the Equal Value Rights Agreement) of such person, shall be the beneficial owner of securities entitled to cast 50% or more of the votes in the election of directors of the Company, that a Controlling Person has become such (a "Control Date"). Until the Equal Value Distribution Date, (i) the Equal Value Rights will be evidenced by the Common Stock certificates and will be transferred with and only with such Common Stock certificates, and (ii) the transfer of any outstanding Common Stock certificates will also constitute the transfer of the Equal Value Rights associated therewith. Until an Equal Value Right is exercised, the holder thereof, as such, has no rights as a stockholder of the Company. At any time until a Control Date, the Company may (but only with the concurrence of a majority of the Continuing Directors (as defined in the Equal Value Rights Agreement)) redeem the Equal Value Rights in whole, but not in part, at a price of $0.02 per Equal Value Right. The Equal Value Rights may have certain anti-takeover effects in the event that a person or group proposes to acquire the Company in a two-tier transaction in which all stockholders do not receive the same price for their shares. STOCKHOLDER RIGHTS PLAN Each outstanding share of Common Stock carries with it one preferred share purchase right (each a "Right"). The terms of the Rights are set forth in a Rights Agreement, dated as of August 30, 1990, as amended (the "Rights Agreement") between the Company and Chemical Bank, as Rights Agent. The following is a summary of the terms of the Rights Agreement. This summary contains all material provisions, but does not purport to be complete and is subject to, and is qualified in its entirety by reference to, the provisions of the Rights Agreement. A copy of the Rights Agreement and the amendments thereto are filed as exhibits to the Registration Statement of which this Prospectus forms a part. Following the Distribution Date referred to below and except as described below, each Right entitles the registered holder to purchase from the Company one five-hundredth of a share (a "Preferred Share Fraction") of the Series A Junior Participating Convertible Preferred Stock, par value $5.00 per share, of the Company (the "Junior Preferred Shares"), at a purchase price of $150 per Preferred Share Fraction, subject to adjustment (the "Purchase Price"). Unless earlier redeemed by the Company or unless a transaction described in Section 13(d) of the Rights Agreement has occurred, the Rights will expire at the close of business on September 11, 2000 (the "Final Expiration Date"). Ownership of the Rights is evidenced by the Common Stock certificates representing shares then outstanding, and no separate certificates representing the Rights have been distributed. The Rights will separate from the Common Stock and a Distribution Date will occur upon the earlier of (i) the close of business on the tenth day after the date of a public announcement that a person (other than any Exempt Person (as defined in the Rights Agreement)) or group of affiliated or associated persons (an "Acquiring Person") has acquired, or obtained the right to acquire, beneficial ownership of 15% or more of the outstanding Common Stock (the "Stock Acquisition Date"), or (ii) the close of business on the tenth business day after the date of the commencement of a tender offer or exchange offer that would result in a person or entity beneficially owning 15% or more of the outstanding Common Stock. Until a Distribution Date, (i) the Rights will be evidenced by the Common Stock certificates and will be transferred with and only with such Common Stock certificates and (ii) the transfer of any outstanding Common Stock certificates will also constitute a transfer of the Rights associated therewith. Except in the circumstances described below, after the Distribution Date each Right will be exercisable into a Preferred Share Fraction. Each Preferred Share Fraction carries voting and dividend rights that are intended to produce the equivalent of one share of Common Stock, which rights are subject to adjustment in the event of stock dividends, subdivisions and combinations with respect to the Common Stock. In lieu of issuing certificates for fractions of Junior Preferred Shares (other than fractions which are integral multiples of one five-hundredth of a share), the Company may pay cash in accordance with the Rights Agreement. If a person becomes an Acquiring Person other than pursuant to certain Board approved tender or exchange offers, each holder of a Right, at any time following the Distribution Date, has the right to receive, 16 18 upon exercise, Common Stock (or, in certain circumstances, cash, property or other securities of the Company) having a value equal to two times the Purchase Price of the Right. In lieu of requiring payment of the Purchase Price upon exercise of the Right following any such event, the Company may provide that each Right be exchanged for one share of Common Stock (or cash, property or other securities, as the case may be). Following the occurrence of the event set forth in the first sentence of this paragraph, all Rights that are, or (under certain circumstances specified in the Rights Agreement) were, beneficially owned by any Acquiring Person will be null and void. In the event that, at any time following the Stock Acquisition Date, (i) the Company is acquired in a merger or other business combination transaction in which the Company is not the surviving corporation (other than pursuant to certain Board approved tender or exchange offers), or (ii) 50% or more of the Company's assets or earning power is sold or transferred, each holder of a Right (except Rights that previously have been voided as set forth above) has the right to receive, upon exercise, common stock of the acquiring company having a value equal to two times the Purchase Price of the Right. The Purchase Price payable, and the number of Preferred Share Fractions or other securities or property issuable, upon exercise of the Rights is subject to adjustment to prevent dilution as a result of certain events described in the Rights Agreement. Until a Right is exercised, the holder thereof, as such, has no rights as a stockholder of the Company. At any time until the earlier of (i) the Stock Acquisition Date and (ii) the Final Expiration Date (but in certain circumstances only with the concurrence of Continuing Directors (as defined in the Rights Agreement)), the Company has the option to redeem the Rights in whole, but not in part, at a price of $0.01 per Right. The Rights have certain anti-takeover effects. The Rights may cause substantial dilution to a person or group that attempts to acquire the Company without conditioning the offer on the Rights being redeemed or a substantial number of Rights being acquired. The Rights should not interfere with any merger or other business combination approved by the Board of Directors of the Company because the Rights are either redeemable or do not go into effect under such circumstances. DESCRIPTION OF PREFERRED STOCK The statements set forth below are summaries of certain provisions relating to the preferred stock of the Company. These summaries contain all material provisions, but do not purport to be complete and are subject to, and are qualified in their entirety by, the provisions of the Company's Restated Certificate of Incorporation, as amended, and the Certificate of Designations for the Junior Preferred Shares described below. GENERAL The Company's Restated Certificate of Incorporation authorizes the issuance of 5,000,000 shares of preferred stock in one or more series. The Board of Directors has the power to fix various terms with respect to each series of preferred stock, including voting powers, designations, preferences, the relative, participating and optional or other rights, qualifications, limitations and restrictions as set forth in resolutions providing for the issue thereof adopted by the Board of Directors or a duly authorized commission thereof. The Convertible Preferred Stock and the Junior Preferred Shares that may be issued in connection with the Company's Stockholder Rights Plan (see "Description of Common Stock -- Stockholder Rights Plan" and "Description of Preferred Stock -- Junior Preferred Shares") are the only series of preferred stock that the Board of Directors of the Company has authorized for issuance by the Company. The Company has called all of the outstanding shares of Convertible Preferred Stock for redemption on the Redemption Date pursuant to the terms of the Company's Certificate of Designations for the Convertible Preferred Stock. JUNIOR PREFERRED SHARES General. A total of 240,000 shares of Junior Preferred Shares have been reserved for issuance upon exercise of the Rights. See "Description of Common Stock -- Stockholder Rights Plan." 17 19 Dividend Rights. Each Junior Preferred Share has a preferential quarterly dividend payable on the first day of January, April, July and October of each year (or such other quarterly payment date as shall be specified by the Board of Directors) in an amount equal to 500 times the dividend (other than a stock dividend) declared on each share of Common Stock, but in no event less than $1.00. Voting Rights. Each Junior Preferred Share will have 500 votes, subject to adjustment as provided in the Certificate of Designations for the Junior Preferred Shares, on all matters submitted to a vote of the stockholders of the Company and, except as provided in the Certificate of Designations for the Junior Preferred Shares, the Company's Restated Certificate of Incorporation or by law, the holders of Junior Preferred Shares shall vote together as one class. Liquidation Rights. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company, the holders of Junior Preferred Shares will receive a preferred liquidation payment per share equal to the greater of $500 per share (plus accrued dividends to the date of distribution, whether or not earned or declared) or an amount per share equal to 500 times the aggregate payment made per each share of Common Stock, in each case subject to adjustment as provided in the Certificate of Designations for the Junior Preferred Shares. Effect of Mergers, Consolidations, Sales and Leases. In the event of any merger, consolidation, combination or other transaction in which shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, each Junior Preferred Share will be similarly exchanged or changed in an amount per share equal to 500 times the aggregate amount and type of consideration received per share of Common Stock, subject to adjustment as provided in the Certificate of Designations for the Junior Preferred Shares. Ranking of Junior Preferred Shares. The Junior Preferred Shares rank junior to all other series of the Company's preferred stock as to the payment of dividends and the distribution of assets, unless the terms of any such series shall provide otherwise. CERTAIN FEDERAL INCOME TAX CONSIDERATIONS AS A REAL PROPERTY HOLDING CORPORATION The Company believes that the Company would likely constitute a United States real property holding corporation within the meaning of the Internal Revenue Code of 1986, as amended (the "Code"). Under certain provisions of the Code and Treasury Regulations thereunder, gain realized by a non-United States person who would not ordinarily be subject to U.S. federal income tax on gains would, under certain circumstances, be subject to tax (the "special tax") on gain realized on the disposition (and possible withholding tax on the proceeds from such disposition (the "withholding tax")) of Common Stock, notwithstanding such non-United States person's lack of other connections with the United States. However, because the Common Stock of the Company is "regularly traded on an established securities market" (within the meaning of Section 897(c)(3) of the Code), under the Code and Temporary Treasury Regulations now in effect, the special tax and the withholding tax would apply to the disposition by a non-U.S. person of an interest in a class of Common Stock that is not regularly traded on an established securities market only if on the date such interest was acquired by such person it had a fair market value greater than the fair market value on that date of 5% of the regularly traded class of Common Stock with the lowest fair market value. However, if such non-regularly traded class of Common Stock is convertible into a regularly traded class of Common Stock, the special tax and the withholding tax would apply to the disposition of an interest in such non-regularly traded class of Common Stock only if on the date such interest was acquired by such person it had a fair market value greater than the fair market value on that date of 5% of the regularly traded class of Common Stock into which it is convertible. The special tax (but, except in certain circumstances, not the withholding tax) would likewise apply to a disposition of an interest in a class of Common Stock that is regularly traded on an established securities market by a non-U.S. person who beneficially owns, directly or indirectly, more than 5% of such class of Common Stock at any time during the five-year period immediately preceding the disposition of the interest. Each prospective holder of Common Stock is urged to consult its own tax advisors regarding the United States federal tax consequences of an investment in such Common Stock, as well as the tax consequences under the laws of any state, local or other United States or non-United States taxing jurisdiction. 18 20 STANDBY ARRANGEMENT Upon the terms and subject to the conditions contained in the Standby Agreement dated November 13, 1995 between the Company and the Purchasers (the "Standby Agreement"), in the event that less than all of the Depositary Shares are surrendered for conversion prior to 5:00 p.m., New York City time, on the Final Conversion Date, the Purchasers have agreed to purchase from the Company such whole number of shares (the "Purchased Shares") of Common Stock as would have been issuable upon conversion of the Depositary Shares as are not surrendered for conversion prior to 5:00 p.m., New York City time, on the Final Conversion Date. The price to be paid by the Purchasers for the Purchased Shares will be $38.29 per share. The Company would use the net proceeds from any such purchase to pay the Redemption Price of the Depositary Shares not surrendered for conversion. The Purchasers may also purchase Depositary Shares from existing holders thereof in compliance with the transfer restrictions applicable thereto prior to 5:00 p.m., New York City time, on the Final Conversion Date. The Purchasers have agreed with the Company to convert all Depositary Shares so purchased or otherwise held by the Purchasers into Common Stock and not to sell or otherwise dispose of any Depositary Shares except for sales to another Purchaser. The Purchasers have agreed to pay to the Company 50% of the excess determined in accordance with the terms of the Standby Agreement, if any, of the aggregate proceeds received on the sale of the Purchased Shares (net of selling concessions, transfer taxes and other related expenses of sale) over $38.29 per share. The Company has been advised by the Purchasers that they propose to offer for resale any shares of Common Stock purchased from the Company or acquired upon conversion as set forth on the cover page of this Prospectus. The Purchasers may also make sales of such shares to certain securities dealers at prices that may reflect concessions from the prices at which such shares are then being offered to the public. The amount of such concessions will be determined from time to time by the Purchasers. Under the terms of the Standby Agreement and as compensation for the commitment of the Purchasers thereunder, the Company has agreed to pay the Purchasers the sum of $4,153,911, plus an additional sum as follows: (i) if the total number of Purchased Shares is greater that 394,972, but less than or equal to 1,974,859, the additional sum will equal $0.9573 per share for all Purchased Shares and (ii) if the total number of Purchased Shares is greater than 1,974,859, the additional sum will equal $1.3402 per share for all Purchased Shares. Pursuant to the Standby Agreement, the Company has agreed that it will not, without the written consent of the Purchasers, sell, contract to sell, or otherwise dispose of any shares of Common Stock, with certain exceptions, for a period commencing on the date hereof and ending 60 days after the Redemption Date; provided that if the Purchasers do not acquire more than 394,972 Purchased Shares pursuant to the Standby Agreement, the Company will no longer be bound by such restriction. The Company has agreed to indemnify the Purchasers against certain liabilities, including liabilities under the Securities Act. Salomon Brothers Inc has performed investment banking services for the Company from time to time in the ordinary course of its business. As of November 9, 1995, Salomon Brothers Inc owned 79,235 Depositary Shares. As of November 9, 1995, SBC Capital Markets Inc., which is indirectly wholly-owned by Swiss Bank Corporation, owned 349,800 Depositary Shares which it has agreed with the Company to convert into Common stock prior to the Final Conversion Date. In addition, as of November 9, 1995, Swiss Bank Corporation, London branch, owned 12,279 Depositary Shares. Pursuant to the Standby Agreement, S.G. Warburg & Co. Inc., an indirect wholly-owned subsidiary of Swiss Bank Corporation and one of the Purchasers, has agreed to cause Swiss Bank Corporation London branch not to sell or otherwise dispose of such Depositary Shares except upon conversion thereof or to another Purchaser. SELLING STOCKHOLDERS The Common Stock received upon conversion of the Depositary Shares may be sold from time to time prior to December 7, 1995 pursuant hereto by the Selling Stockholders identified in the accompanying Prospectus Supplement. See "Redemption of Depositary Shares and Expiration of Conversion Privileges -- Registration of Common Stock." A Selling Stockholder may sell such shares of Common Stock in one or more transactions (which may involve one or more block transactions) on the NYSE or exchanges outside the U.S., in sales occurring in the public market off such exchanges, in separately negotiated transactions, or in a combination of such transactions; each sale may be made either at market prices prevailing at the time of such sale or at negotiated prices; some or all of such shares of Common Stock may be sold directly or through brokers acting on behalf of such Selling Stockholder or to dealers for resale by such dealers; and in connection 19 21 with such sales, such brokers or dealers may receive compensation in the form of discounts or commissions from such Selling Stockholder and/or the purchasers of such shares of Common Stock for whom they may act as broker or agent. All expenses of registration incurred in connection with the offering of such shares of Common Stock are being borne by the Company, but all brokerage commissions and other expenses incurred by the Selling Stockholder will be payable by the Selling Stockholder. A Selling Stockholder and any dealer participating in the distribution of any such shares of Common Stock or any broker executing selling orders on behalf of such Selling Stockholder may be deemed to be "underwriters" within the meaning of the Securities Act, in which case any profit on the sale of any or all of such shares of Common Stock by such Selling Stockholder and any discounts or commissions received by any such brokers or dealers may be deemed to be underwriting discounts and commissions under the Securities Act. Any broker or dealer participating in any distribution by the Selling Stockholder of such shares of Common Stock in connection with the offering of such shares of Common Stock may be deemed to be an "underwriter" within the meaning of the Securities Act and will be required to deliver a copy of this Prospectus, together with the accompanying Prospectus Supplement, to any person who purchases any shares of Common Stock from or through such broker or dealer. VALIDITY OF COMMON STOCK The validity of the Common Stock will be passed upon for the Company by White & Case, 1155 Avenue of the Americas, New York, New York, and for the Purchasers by Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York. EXPERTS The audited consolidated financial statements and schedules incorporated by reference in this Prospectus have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their reports with respect thereto, and are incorporated by reference herein in reliance upon the authority of said firm as experts in auditing and accounting in giving said reports. 20 22 - ------------------------------------------------------ - ------------------------------------------------------ NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY AGENT, DEALER OR UNDERWRITER. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATES AS OF WHICH INFORMATION IS GIVEN IN THIS PROSPECTUS. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY, TO ANY PERSON IN ANY JURISDICTION WHERE SUCH OFFER OR SOLICITATION WOULD BE UNLAWFUL OR IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO. ------------------ TABLE OF CONTENTS
PAGE ---- AVAILABLE INFORMATION................. 3 INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE........................... 3 RISK FACTORS.......................... 4 THE COMPANY........................... 6 RECENT DEVELOPMENTS................... 7 USE OF PROCEEDS....................... 8 PRICE RANGE OF COMMON STOCK AND DIVIDEND POLICY..................... 8 CAPITALIZATION........................ 8 SELECTED FINANCIAL DATA............... 9 REDEMPTION OF DEPOSITARY SHARES AND EXPIRATION OF CONVERSION PRIVILEGES.......................... 10 DESCRIPTION OF CAPITAL STOCK.......... 14 DESCRIPTION OF COMMON STOCK........... 14 DESCRIPTION OF PREFERRED STOCK........ 17 CERTAIN FEDERAL INCOME TAX CONSIDERATIONS AS A REAL PROPERTY HOLDING CORPORATION................. 18 STANDBY ARRANGEMENT................... 19 SELLING STOCKHOLDERS.................. 19 VALIDITY OF COMMON STOCK.............. 20 EXPERTS............................... 20
------------------ - ------------------------------------------------------ - ------------------------------------------------------ - ------------------------------------------------------ - ------------------------------------------------------ 7,899,436 SHARES NEWMONT MINING CORPORATION COMMON STOCK ($1.60 par value) ------------------- PROSPECTUS ------------------- SALOMON BROTHERS INC GOLDMAN, SACHS & CO. S.G.Warburg & Co. Inc. Prospectus Dated November 14, 1995 - ------------------------------------------------------ - ------------------------------------------------------ 23 Part II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.* SEC filing fee.................................................................. $111,681.68 Accounting fees and expenses.................................................... 30,000.00 Legal fees and expenses......................................................... 200,000.00 Blue Sky and Legal Investment fees and expenses................................. 20,000.00 Transfer Agent's fees........................................................... 5,000.00 Printing and engraving expenses................................................. 30,000.00 Miscellaneous................................................................... 3,318.32 ------------ Total........................................................................... $400,000.00 ============
- --------------- * All estimates except for filing fee. ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the Delaware General Corporation Law authorizes and empowers the Company to indemnify the directors, officers, employees and agents of the Company 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 relationship with the Company, 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 Company 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 persons in connection with such acts or events is not necessarily determinative of the question of whether such persons have met the required standard of conduct and are, accordingly, entitled to be indemnified. The foregoing statements are subject to the detailed provisions of Section 145 of the General Corporation Law of the State of Delaware. The By-Laws of the Company provide that each person who at any time is or shall have been a director or officer of the Company, or is or shall have been serving another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity at the request of the Company, and his heirs, executors and administrators, shall be indemnified by the Company in accordance with and to the full extent permitted by the General Corporation Law of the State of Delaware. Section 6 of the By-Laws of the Company facilitates enforcement of the right of directors and owners to be indemnified by establishing such right as a contract right pursuant to which the person entitled thereto may bring suit as if the indemnification provisions of the By-Laws were set forth in a separate written contract between the Company and the director or officer. II-1 24 ITEM 16. EXHIBITS.
EXHIBIT NUMBER DESCRIPTION OF DOCUMENTS -------------- -------------------------------------------------------------------------- 1.1 -- Form of Standby Purchase Agreement between the registrant and Salomon Brothers Inc, Goldman Sachs & Co. and SBC Warburg as the Purchasers relating to the Common Stock. 4.1 -- Restated Certificate of Incorporation dated as of July 13, 1987. Incorporated by reference to Exhibit 3 to registrant's Form 10-K for the year ended December 31, 1987. 4.2 -- By-Laws as amended through June 24, 1992 and adopted June 24, 1992. Incorporated by reference to Exhibit (3)b to registrant's Form 10-K for the year ended December 31, 1992. 4.3 -- Certificate of Designations, Preferences and Rights of $5.50 Convertible Preferred Stock, $5 Par Value, dated November 13, 1992. Incorporated by reference to Exhibit (3)c to registrant's Form 10-K for the year ended December 31, 1992. 4.4 -- Rights Agreement dated as of September 23, 1987 between the registrant and Manufacturers Hanover Trust Company as Equal Value Agent relating to the Equal Value Rights. Incorporated by reference to Exhibit 1 to registrant's Registration Statement on Form 8-A dated September 25, 1987. 4.5 -- First Amendment dated as of October 1, 1987 amending the Rights Agreement dated as of September 23, 1987 between registrant and Manufacturers Hanover Trust Company, as Rights Agent. Incorporated by reference to Exhibit (4)b to registrant's Form 10-K for the year ended December 31, 1990. 4.6 -- Second Amendment dated as of May 1, 1989 amending the Rights Agreement dated as of September 23, 1987 between registrant and Manufacturers Hanover Trust Company, as Rights Agent. Incorporated by reference to Exhibit 1 to registrant's Form 8 dated June 7, 1989. 4.7 -- Rights Agreement dated August 30, 1990 between registrant and Manufacturers Hanover Trust Company, as Rights Agent. Incorporated by reference to Exhibit 1 to registrant's Registration Statement on Form 8-A dated August 31, 1990. 4.8 and 4.9 -- First Amendment dated November 27, 1990 and Second Amendment dated December 7, 1990 to the aforementioned Rights Agreement dated August 30, 1990. Incorporated by reference to Exhibits 2 and 3, respectively, to registrant's Form 8 dated December 7, 1990. 4.10 -- Third Amendment dated February 26, 1992 to the aforementioned Rights Agreement dated August 30, 1990. Incorporated by reference to Exhibit 4 to registrant's Form 8 dated March 17, 1992. 4.11 -- Deposit Agreement dated as of November 15, 1992 among the registrant, Chemical Bank, as Depositary and all holders from time to time of depositary receipts issued thereunder. Incorporated by reference to Exhibit 4(j) to registrant's Registration Statement on Form S-3 (File No. 33-65274). 5 -- Opinion of White & Case. 23.1 -- Consent of Arthur Andersen LLP. 23.2 -- Consent of White & Case (included in Exhibit 5). 24 -- Power of Attorney of certain officers and directors.
ITEM 17. UNDERTAKINGS. The undersigned Registrant hereby undertakes: (1) to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) to include any prospectus required by Section 10(a)(3) of the Act; (ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or II-2 25 in the aggregate, represent a fundamental change in the information set forth in the registration statement; and (iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are incorporated by reference in the registration statement; (2) that, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; (3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering; (4) that, for purposes of determining any liability under the Act, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the 1934 Act that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; (5) to supplement the prospectus, after the Final Conversion Date, to set forth the number of shares of Common Stock issued upon conversion of the Depositary Shares, the transactions by the Purchasers prior to the Final Conversion Date, the number of shares of Common Stock to be purchased by the Purchasers directly from the Company, and the terms of any subsequent reoffering thereof. If any public offering by the Purchasers is to be made on terms differing from those set forth on the cover page of the prospectus, a post-effective amendment will be filed to set forth the terms of such offering; and (6) that, for purposes of determining any liability under the Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus, filed by the Registrant pursuant to Rule 424(b)(1) or (4) under the Act shall be deemed to be part of this registration statement as of the time it was declared effective. Insofar as indemnification for liabilities arising under the Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-3 26 SIGNATURES PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF DENVER, STATE OF COLORADO, ON THE 14TH DAY OF NOVEMBER, 1995. NEWMONT MINING CORPORATION /s/ TIMOTHY J. SCHMITT By: Timothy J. Schmitt Vice President, Secretary and Assistant General Counsel PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS (WHO INCLUDE A MAJORITY OF THE BOARD OF DIRECTORS) IN THE CAPACITIES AND ON THE DATES INDICATED.
SIGNATURE TITLE DATE - ------------------------------------- ------------------------------------ ------------------ * Director November 14, 1995 - ------------------------------------- Rudolph I.J. Agnew * Director November 14, 1995 - ------------------------------------- J.P. Bolduc * Chairman, President and Chief November 14, 1995 - ------------------------------------- Executive Officer and Director Ronald C. Cambre (Principal Executive Officer) * Director November 14, 1995 - ------------------------------------- Joseph P. Flannery * Director November 14, 1995 - ------------------------------------- Thomas A. Holmes * Director November 14, 1995 - ------------------------------------- Robin A. Plumbridge * Director November 14, 1995 - ------------------------------------- Moeen A. Qureshi * Director November 14, 1995 - ------------------------------------- Michael K. Reilly * Director November 14, 1995 - ------------------------------------- William I.M. Turner, Jr.
II-4 27
SIGNATURE TITLE DATE - ------------------------------------- ------------------------------------ ------------------ * Senior Vice President and November 14, 1995 - ------------------------------------- Chief Financial Officer Wayne W. Murdy (Principal Financial Officer) * Vice President and Controller November 14, 1995 - ------------------------------------- (Principal Accounting Officer) Gary E. Farmar
/s/ TIMOTHY J. SCHMITT *By: Timothy J. Schmitt as Attorney-in-fact II-5 28 EXHIBIT INDEX
EXHIBIT NUMBER -------------- 1.1 -- Form of Standby Purchase Agreement between the registrant and Salomon Brothers Inc, Goldman Sachs & Co. and SBC Warburg as the Purchasers relating to the Common Stock. 4.1 -- Restated Certificate of Incorporation dated as of July 13, 1987. Incorporated by reference to Exhibit 3 to registrant's Form 10-K for the year ended December 31, 1987. 4.2 -- By-Laws as amended through June 24, 1992 and adopted June 24, 1992. Incorporated by reference to Exhibit (3)b to registrant's Form 10-K for the year ended December 31, 1992. 4.3 -- Certificate of Designations, Preferences and Rights of $5.50 Convertible Preferred Stock, $5 Par Value, dated November 13, 1992. Incorporated by reference to Exhibit (3)c to registrant's Form 10-K for the year ended December 31, 1992. 4.4 -- Rights Agreement dated as of September 23, 1987 between the registrant and Manufacturers Hanover Trust Company as Equal Value Agent relating to the Equal Value Rights. Incorporated by reference to Exhibit 1 to registrant's Registration Statement on Form 8-A dated September 25, 1987. 4.5 -- First Amendment dated as of October 1, 1987 amending the Rights Agreement dated as of September 23, 1987 between registrant and Manufacturers Hanover Trust Company, as Rights Agent. Incorporated by reference to Exhibit (4)b to registrant's Form 10-K for the year ended December 31, 1990. 4.6 -- Second Amendment dated as of May 1, 1989 amending the Rights Agreement dated as of September 23, 1987 between registrant and Manufacturers Hanover Trust Company, as Rights Agent. Incorporated by reference to Exhibit 1 to registrant's Form 8 dated June 7, 1989. 4.7 -- Rights Agreement dated August 30, 1990 between registrant and Manufacturers Hanover Trust Company, as Rights Agent. Incorporated by reference to Exhibit 1 to registrant's Registration Statement on Form 8-A dated August 31, 1990. 4.8 and 4.9 -- First Amendment dated November 27, 1990 and Second Amendment dated December 7, 1990 to the aforementioned Rights Agreement dated August 30, 1990. Incorporated by reference to Exhibits 2 and 3, respectively, to registrant's Form 8 dated December 7, 1990. 4.10 -- Third Amendment dated February 26, 1992 to the aforementioned Rights Agreement dated August 30, 1990. Incorporated by reference to Exhibit 4 to registrant's Form 8 dated March 17, 1992. 4.11 -- Deposit Agreement dated as of November 15, 1992 among the registrant, Chemical Bank, as Depositary and all holders from time to time of depositary receipts issued thereunder. Incorporated by reference to Exhibit 4(j) to registrant's Registration Statement on Form S-3 (File No. 33-65274). 5 -- Opinion of White & Case. 23.1 -- Consent of Arthur Andersen LLP. 23.2 -- Consent of White & Case (included in Exhibit 5). 24 -- Power of Attorney of certain officers and directors.
II-6 EX-1.1 2 FORM OF STANDBY PURCHASE AGREEMENT 1 NEWMONT MINING CORPORATION Standby Agreement New York, New York November 13, 1995 Salomon Brothers Inc As Representative of the several Purchasers c/o Salomon Brothers Inc Seven World Trade Center New York, New York 10048 Dear Sirs: Newmont Mining Corporation, a Delaware corporation (the "Company"), intends to call for redemption on December 14, 1995 (the "Redemption Date"), all its outstanding Depositary Shares (the "Redeemable Securities"), each representing ownership of one-half of a share of the Company's $5.50 Convertible Preferred Stock, par value $5.00 (the "Convertible Preferred Stock"), at $51.925 plus accrued and unpaid dividends to and including the Redemption Date for a total redemption price of $52.605 per share of Redeemable Securities. The Redeemable Securities representing one or more whole shares of Convertible Preferred Stock are convertible into whole shares of the Common Stock, $1.60 par value, of the Company ("Common Stock") at any time prior to 5:00 P.M., New York City time, on December 4, 1995 (the "Conversion Date"). In order to ensure that the Company will have available sufficient funds to redeem any Redeemable Securities not converted prior to 5:00 P.M., New York City time, on the Conversion Date, the Company desires to make arrangements pursuant to which the purchasers named in Schedule I hereto (each a "Purchaser" and collectively the "Purchasers"), for whom you (the "Representative") are acting as Representative, will following the Conversion Date purchase whole shares of Common Stock that would have been issuable upon the conversion of the Redeemable Securities that have not been surrendered for conversion prior to 5:00 P.M., New York City time, on the Conversion Date. 1. Representations and Warranties. The Company represents and warrants to, and agrees with, each Purchaser as set forth below in this Section 1. 2 2 (a) The Company meets the requirements for use of Form S-3 under the Securities Act of 1933, as amended (the "Act"). A registration statement including a prospectus, relating to the Securities (as defined below) has been or will be filed with the Securities and Exchange Commission (the "Commission") and has become effective or will become effective within one business day of the date hereof. Such registration statement, as amended at the Execution Time (as defined below), is hereinafter referred to as the "Registration Statement", and the prospectus included in such Registration Statement, and as supplemented in the form used to confirm sales of the Securities by certain selling stockholders, including all material incorporated by the reference therein, is hereinafter referred to as the "Prospectus". (b) On the Effective Date (as defined below), the Registration Statement did, and the Prospectus (and any supplements thereto) will, as long as a Prospectus is required to be delivered in connection with sales of the Securities, comply in all material respects with the applicable requirements of the Act and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations thereunder; on the Effective Date, the Registration Statement did not and (if applicable) will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and the Prospectus (together with any supplement thereto), as long as a Prospectus is required to be delivered in connection with sales of the Securities, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to the information contained in or omitted from the Registration Statement or the Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished to the Company by or on behalf of any Purchaser through the Representative specifically for inclusion in the Registration Statement or the Prospectus (or any supplement thereto). The term "Effective Date" shall mean each date that the Registration Statement and any post-effective amendment or amendments thereto became or 3 3 become effective and each date after the date hereof on which a document incorporated by reference in the Registration Statement is filed with the Commission; provided that filing occurs during the time when a Prospectus relating to the Securities is required to be delivered under the Act. (c) The Redeemable Securities representing one or more whole shares of Convertible Preferred Stock are convertible into shares of Common Stock at a conversion price of $36.395 per share of Common Stock. At the Execution Time, there were outstanding 5,750,000 shares of Redeemable Securities; the redemption of all the outstanding Redeemable Securities had been duly authorized by the Company; by the close of business on the business day following the Execution Time, all the Redeemable Securities shall have been duly called for redemption in accordance with the Certificate of Designations relating to the Convertible Preferred Stock and the Deposit Agreement (the "Deposit Agreement") dated as of November 15, 1992 between the Company, Chemical Bank, as Depositary (the "Depositary"), and holders of the Redeemable Securities; and the right to convert the Redeemable Securities into shares of Common Stock will, as a result of such call, expire at 5:00 P.M., New York City time, on the Conversion Date. A copy of the form of notice of redemption and the related letter of transmittal (collectively, the "Notice of Redemption") has been heretofore delivered to you. The Redeemable Securities have been duly and validly authorized and issued and are fully paid and nonassessable. The term "Execution Time" shall mean the date and time that this Agreement is executed and delivered by the parties hereto. (d) The Company has neither taken nor will take, directly or indirectly, any action designed to cause or result in, or that has constituted or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Company to facilitate the conversion of the Redeemable Securities. (e) Except as otherwise contemplated hereby, the Company has neither paid nor given, nor will pay or give, directly or indirectly, any commission or other remuneration for soliciting the conversion of Redeemable Securities into Common Stock and cash. 4 4 (f) The execution, delivery and performance of this Agreement, the call of the Redeemable Securities for redemption, the conversion and redemption thereof, the issuance and sale of the Securities and compliance with the terms and provisions thereof, and the consummation of the transactions contemplated by this Agreement will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Restated Certificate of Incorporation or By-Laws of the Company or the terms of any material indenture or other material agreement or instrument to which the Company or any of its subsidiaries is a party or is bound or any statute, rule, regulation, judgment, order or decree applicable to the Company or any of its subsidiaries of any federal or New York State governmental agency or body or court having jurisdiction over the Company or any of its subsidiaries or material properties. 2. Purchase and Conversion of Redeemable Securities. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth: (a) Each Purchaser agrees not to sell 0r otherwise dispose of any Redeemable Securities owned by such Purchaser on the date hereof, except as provided herein and except for any sale or other disposition to another Purchaser. S.G.Warburg & Co. Inc. also agrees to cause Swiss Bank Corporation, London branch to comply with this Subsection 2(a). Each Purchaser, severally and not jointly, agrees to surrender for conversion into Common Stock prior to 5:00 P.M., New York City time, on the Conversion Date all Redeemable Securities owned by such Purchaser on the Conversion Date as set forth in Section 4 hereof or otherwise held by such Purchaser on the Conversion Date. The shares of Common Stock issued to the Purchasers upon the conversion of Redeemable Securities are referred to as the "Conversion Securities". (b) If any Redeemable Securities have not been surrendered for conversion prior to 5:00 P.M., New York City time, on the Conversion Date, the Company shall sell to each Purchaser, and each Purchaser, severally and not jointly, shall purchase from the Company, at a purchase price of $38.29 per share, such number of shares of Common Stock as shall equal the number of shares of Common Stock that would have been issuable upon conversion of all Redeemable Securities not surrendered for conversion multiplied by the percentage set forth opposite such Purchaser's name in Schedule I hereto (rounded to the nearest whole number of 5 5 shares). The shares of Common Stock to be purchased pursuant to this Section 2(b) are referred to as the "Purchased Securities" and, together with the Conversion Securities, the "Securities". (c) It is understood that the Purchasers intend to resell the Securities from time to time at prices prevailing in the open market. On or prior to the tenth day after the Redemption Date, or if such day is not a business day, the next succeeding business day, each Purchaser shall remit to the Company 50% of the excess, if any, of the aggregate proceeds received by such Purchaser from the sale of the Purchased Securities (net of selling concessions, transfer taxes and other expenses of sale) over an amount equal to $38.29 multiplied by the number of Securities sold by such Purchaser. Upon completion of the sale of the Securities, each Purchaser shall furnish to the Company a statement setting forth the aggregate proceeds received on the sale thereof and the applicable selling concessions, transfer taxes and other expenses of sale. For purposes of the foregoing determination, any Securities not sold by or for the account of the Purchaser prior to the close of business on the tenth day after the Redemption Date, or if such date is not a business day, the next succeeding business day shall be deemed to have been sold on such tenth day for an amount equal to the average of the high and low sale prices of the Common Stock on such day as reported on the New York Stock Exchange. Nothing contained herein shall limit the right of the Purchasers, in their discretion, to determine the price or prices at which, or the time or times when, any Securities shall be sold, whether or not prior to the Redemption Date and whether or not for long or short account. (d) Delivery of and payment for the Purchased Securities shall be made at 10:00 A.M., New York City time, on December 8, 1995, or such later date (not later than December 14, 1995) as the Representative and the Company may agree, which date and time may be postponed by agreement between the Representative and the Company or as provided in Section 9 hereof (such date and time of delivery and payment for the Purchased Securities being herein called the "Closing Date"). Delivery of the Purchased Securities shall be made to the Representative for the respective accounts of the several Purchasers against payment by the several Purchasers through the Representative of the purchase price thereof to or upon the order of the Company by certified or official bank check or checks drawn on or by a New York Clearing House bank and payable in next day funds. Delivery 6 6 of the Purchased Securities shall be made at such location as the Representative shall reasonably designate at least one business day in advance of the Closing Date and payment for the Purchased Securities shall be made at the office of Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York. Certificates for the Purchased Securities shall be registered in such names and in such denominations as the Representative may request not less than three full business days in advance of the Closing Date. The Company agrees to have the Purchased Securities available for inspection, checking and packaging by the Representative in New York, New York, not later than 1:00 P.M. on the business day prior to the Closing Date. 3. Compensation. As compensation for the commitment of the Purchasers hereunder, the Company will pay to the Representative for the respective accounts of (A) each of the Representative and Goldman, Sachs & Co., an amount equal to the sum of (i) $1,421,606 plus (ii) if the aggregate number of the Purchased Securities exceeds 1,974,859 shares, an additional $1.3402 per Purchased Security for the aggregate number of all such Purchased Securities purchased by the Representative and Goldman, Sachs & Co., and if the aggregate number of Purchased Securities exceeds 394,972 shares but is less than or equals 1,974,859 shares, an additional $0.9573 per Purchased Security for the aggregate number of all such Purchased Securities purchased by the Representative and Goldman, Sachs & Co., and (B) S.G. Warburg & Co. Inc. an amount equal to the sum of (i) $1,310,699 plus (ii) if the aggregate number of the Purchased Securities exceeds 1,974,859 shares, an additional $1.34 per Purchased Security for the aggregate number of all such Purchased Securities purchased by S.G. Warburg & Co. Inc. and if the aggregate number of Purchased Securities exceeds 394,972 shares but is less than or equals 1,974,859 shares, an additional $0.96 per Purchased Security for the aggregate number of all such Purchased Securities purchased by S.G. Warburg & Co. Inc. Such compensation shall be paid to the Representative for the respective accounts of the several Purchasers by certified or official bank check or checks drawn on or by a New York Clearing House bank and payable in next day funds on (A) if the Purchasers are required to purchase any Purchased Securities, the Closing Date, or (B) otherwise, as soon as practicable after the Redemption Date (but in no event later than two business days thereafter). 7 7 4. Additional Purchases. The Purchasers may purchase Redeemable Securities in such amounts and at such prices as the Purchaser may deem advisable. All Redeemable Securities owned by the Purchasers on the Conversion Date will be converted by the Purchasers into Common Stock in accordance with Section 2(a) hereof. The Common Stock acquired by the Purchasers upon conversion of any Redeemable Securities acquired pursuant to this Section 4 may be sold at any time or from time to time by the Purchasers. It is understood that, for the purpose of stabilizing the price of the Common Stock or otherwise, the Purchasers may make purchases and sales of Common Stock, in the open market or otherwise, for long or short account, on such terms as they may deem advisable and they may overallot in arranging sales. 5. Certain Agreements of the Company. The Company agrees with the several Purchasers that it will furnish to the Purchasers and counsel for the Purchasers, without charge, one signed copy of the registration statement relating to the Securities, including all exhibits, in the form it became effective and of all amendments thereto and that: (a) During the time when a prospectus relating to the Securities is required to be delivered under the Act, (i) the Company will advise the Purchasers promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will, except in the case of a supplement relating only to sales of the Securities by certain selling stockholders, afford the Purchasers a reasonable opportunity to comment on any such proposed amendment or supplement, (ii) the Company will advise the Purchasers promptly of the filing of any such amendment or supplement and will provide evidence satisfactory to the Purchasers of such filing, (iii) the Company will advise the Purchasers promptly of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued and (iv) the Company will advise the Purchasers promptly of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. 8 8 (b) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with the Act, the Company promptly will prepare and file with the Commission an amendment or supplement which will correct such statement or omission or effect such compliance. Neither the Purchasers' consent to nor the Purchasers' delivery of any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6. (c) The Company will make generally available to its security holders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earning statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the Rules and Regulations (including, at the option of the Company, Rule 158 under the Act). (d) The Company will furnish to the Purchasers, without charge, copies of the Registration Statement, including all exhibits, any related prospectus relating to the Securities, any related prospectus supplement and, during the time when a prospectus relating to the Securities is required to be delivered under the Act, all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requested. (e) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Purchasers reasonably designate and will continue such qualifications in effect so long as required for the distribution of the Securities; provided, however, that in no event shall the Company be required to qualify as a foreign corporation or as a dealer in securities or to take any action that would subject it to general or unlimited service of process in any such jurisdiction. 9 9 (f) The Company will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company's counsel and accountants in connection with the registration of the Securities under the Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Purchasers and dealers in such quantities as are agreed herein; (ii) the cost of printing any Agreement among Purchasers, this Agreement, any Blue Sky Memorandum and any other documents in connection with the offering, purchase, sale and delivery of the Securities; (iii) all expenses in connection with the qualification of the Securities for offering and sale under state securities laws as provided in Section 5(f), including the reasonable fees and disbursements of counsel for the Purchasers in connection with such qualification and in connection with the Blue Sky survey; (iv) the cost of preparing the Securities; (v) the fees and expenses in connection with the listing, if any, of the Securities or any Common Stock issuable upon conversion of Redeemable Securities; (vi) the fees and expenses of any transfer agent relating to any Common Stock or any Convertible Preferred Stock; (vii) the fees and expenses of the Depositary relating to any Redeemable Securities; (viii) the cost of preparing, printing and distributing the Notice of Redemption and related documents; (ix) the cost of any advertising pursuant to Section 5(g) and (x) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section; provided, however, that, except as provided in this Section, Section 7 and Section 10 hereof, the Purchasers will pay all of their own costs and expenses, including the fees of their counsel, and transfer taxes on resale of any of the Securities by them. (g) The Company will mail or cause to be mailed not later than the business day following the date of execution hereof the Notice of Redemption by first class mail to the registered holders of the Redeemable Securities as of the close of business on the record date selected by the Depositary, which mailing will conform to the requirements of the Certificate of Designations of the Company creating the Convertible 10 10 Preferred Stock. The Company will not withdraw or revoke the Notice of Redemption or attempt to do so. (h) The Company will advise the Representative daily of the amount of Redeemable Securities surrendered on the previous day for conversion. (i) The Company will not take any action the effect of which would be to require an adjustment in the conversion price of the Redeemable Securities. (j) Until the Redemption Date, the Company will (i) notify you promptly of any material change affecting any of its representations, warranties, agreements or indemnities herein and will take such steps as you may reasonably request to remedy and/or publicize the same to the extent required by law and (ii) furnish you such other information concerning the Company as you may reasonably request. (k) The Company will not, prior to the Redemption Date and for a period of 60 days following the Redemption Date, without the prior written consent of the Representative, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any other shares of Common Stock or any securities convertible into, or exchangeable for, shares of Common Stock; provided, however , that (x) the Company may issue and sell Common Stock pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect on the Conversion Date and in connection with any bonuses paid in securities of the Company; (y) the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding on the Conversion Date; and (z) the Company may issue Common Stock in connection with corporate acquisitions; and provided further that the Company will no longer be bound by this provision if the Purchasers do not purchase in excess of 394,972 Purchased Securities pursuant to this Agreement. (l) The Company has complied and, until the distribution of the Securities is completed, will comply with all of the provisions of Florida H.B. 1771, codified as Section 517.075 of the Florida statutes, and all regulations promulgated thereunder relating to issuers doing business with Cuba. 11 11 6. Conditions to the Obligations of the Purchasers. The obligations of the Purchasers hereunder to convert Redeemable Securities and to purchase any Purchased Securities will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the written statements of Company officers made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Representative shall have received letters, dated the date that is one day after the date of this Agreement and the Closing Date, of Arthur Andersen & Co., in form and substance satisfactory to the Representative, confirming that they are independent public accountants within the meaning of the Act and the applicable published Rules and Regulations thereunder and with respect to the financial and other statistical and numerical information contained in the Registration Statement and incorporated therein. (b) The Registration Statement shall have become effective not later than 12 noon on the date following the execution of this Agreement. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or any Purchaser, shall be contemplated by the Commission. (c) Subsequent to the Execution Time, there shall not have occurred (i) any downgrading in the rating of any senior debt securities of the Company by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (ii) any suspension or limitation in trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such Exchange; (iii) any suspension in trading in the Common Stock of the Company on the New York Stock Exchange imposed by the New York Stock Exchange or the Commission; (iv) any general banking moratorium declared by Federal or New York authorities; and (v) 12 12 any outbreak or material escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency which, in the reasonable judgment of the Representative, is so material and adverse as to make it impractical or inadvisable to proceed with the completion of the sale of and payment for the Securities. (d) The Representative shall have received an opinion, dated the date that is one day after the date of this Agreement and the Closing Date, of White & Case, counsel for the Company, to the effect that: (i) The Company has been duly incorporated and is an existing corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Prospectus; (ii) The shares of capital stock of the Company outstanding on the date of this Agreement and the Closing Date, as the case may be, have been duly authorized, are validly issued, fully paid and non-assessable, and conform in all material respects to the description thereof contained in the Prospectus; (iii) The outstanding Redeemable Securities have been duly and validly issued and are fully paid and nonassessable; assuming the mailing of the Notice of Redemption in accordance with Section 5(g) hereof, all the Redeemable Securities will have been duly called for redemption by the close of business on the business day following the Execution Time and the right to convert the Redeemable Securities into shares of Common Stock will expire at 5:00 P.M., New York City time, on December 4, 1995; the Securities have been duly and validly authorized and, when issued and delivered upon conversion of any Redeemable Securities or when issued delivered and paid for by the Purchasers, as the case may be, will be fully paid and nonassessable; and the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; 13 13 (iv) The Securities conform in all material respects to the description thereof contained in the Prospectus; (v) No consent, approval, authorization or order of, or filing with, any New York State or Federal governmental agency or body or any New York State or Federal court having jurisdiction over the Company or any of its material properties is required to be obtained or made by the Company for the consummation of the transactions contemplated by this Agreement, except such as have been obtained and made under the Act and such as may be required under state securities or Blue Sky laws (as to which such counsel need express no opinion); (vi) The execution, delivery and performance of this Agreement, the call of the Redeemable Securities for redemption, the conversion and redemption thereof, the issuance and sale of the Securities will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Restated Certificate of Incorporation or By-Laws of the Company or any statute, rule, regulation or order applicable to the Company or any of its subsidiaries of which such counsel is aware of any federal or New York State governmental agency or body or court having jurisdiction over the Company or any of its material properties (other than those that may be required under the Act and under applicable state securities or Blue Sky laws as to which such counsel need express no opinion) and the Company has full corporate power and authority to authorize, issue and sell the Securities as contemplated by this Agreement; (vii) The Registration Statement, as of its effective date, and the Prospectus, as of its date, and any amendment or supplement thereto, as of its date, appeared on their face to comply as to form in all material respects with the requirements of the Act and the Rules and Regulations thereunder; nothing has come to such counsel's attention which causes it to believe that the Registration Statement, as of its effective date, or the Prospectus, as of its date, or any such amendment or supplement, as of its 14 14 date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus in the light of the circumstances under which they were made) not misleading; it being understood that such counsel need express no opinion as to the financial statements and schedules or other financial or statistical data contained in or omitted from or incorporated by reference in any of the above-mentioned documents; and (viii) This Agreement has been duly authorized, executed and delivered by the Company. (e) The Representative shall have received an opinion, dated the date that is one day after the date of this Agreement and the Closing Date, from Graham M. Clark, Jr., Esq., Senior Vice President and General Counsel of the Company, to the effect that: (i) The Company and Newmont Gold Company have been duly incorporated and are existing corporations in good standing in their state of incorporation and have been duly qualified to do business and are in good standing as foreign corporations in all jurisdictions in which their respective ownership of property or the conduct of their respective businesses requires such qualification (except where the failure to so qualify would not have a material adverse effect upon the Company and its subsidiaries taken as a whole), and have all power and authority necessary to own their respective properties and conduct the businesses in which they are engaged as described in the Prospectus; (ii) The execution, delivery and performance of this Agreement, the call of the Redeemable Securities for redemption, the conversion and redemption thereof and the issuance and sale of the Securities and compliance with the terms and provisions thereof, and the consummation of the transactions contemplated by this Agreement will not result in a breach or violation of any of the terms and provisions of, or constitute a default under any order, rule or regulation applicable to the Company or any of its subsidiaries of which 15 15 such counsel is aware of any court or governmental agency or body having jurisdiction over the Company or any of its material properties or any material agreement or instrument to which the Company or any material subsidiary is a party or by which the Company or any such subsidiary is bound or to which any of the properties of the Company or any such subsidiary is subject, or the Restated Certificate of Incorporation or By-Laws of the Company or any such subsidiary; (iii) Such counsel is not aware of any consent, approval, authorization or order of, or filing with, any governmental agency or body or any court having jurisdiction over the Company or any of its material properties that is required to be obtained or made by the Company for the consummation of the transactions contemplated by this Agreement, except such as may be required under the Act and under state securities or Blue Sky laws (as to which such counsel need express no opinion); (iv) The documents incorporated by reference in the Prospectus (other than the financial statements and related schedules and other financial and statistical data contained therein or omitted therefrom, as to which such counsel need express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder; and nothing has come to such counsel's attention which causes such counsel to believe that any of such documents, when such documents were so filed, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents were so filed, not misleading; (v) Nothing has come to such counsel's attention which causes such counsel to believe that the Registration Statement, as of its effective date, or the Prospectus, as of its date, or any such amendment or supplement, as of its date, contained or contains any untrue statement of a material fact or omitted or omits to state 16 16 any material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus in the light of the circumstances under which they were made) not misleading; it being understood that such counsel need express no opinion as to the financial statements and schedules or other financial or statistical data contained in or omitted from or incorporated by reference in any of the above-mentioned documents; and (vi) The statements contained in the Company's Annual Reports on Form 10-K for the year ended December 31, 1994 under the heading "Item 3. Legal Proceedings", and the statements contained in the Company's Quarterly Reports on Form 10-Q for the quarters ended March 31, 1995, June 30 and September 30, 1995 under the heading "Item 1. Legal Proceedings", in each case, which are incorporated by reference in the Prospectus, insofar as such statements constitute a summary of the legal documents, matters or proceedings referred to therein, fairly present the information called for with respect to such legal documents, matters and proceedings. (f) The Representative shall have received from Davis Polk & Wardwell, counsel for the Purchasers, such opinion or opinions, dated the date that is one day after the date of this Agreement and the Closing Date, with respect to the incorporation of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (g) The Representative shall have received a certificate, dated the date that is one day after the date of this Agreement and the Closing Date, of the Chairman of the Board of Directors, President and Chief Executive Officer, any Senior Vice President or the Treasurer and a principal financial or accounting officer of the Company in which such officers, to their knowledge, shall state that the representations and warranties of the Company in this Agreement are true and correct at and as of the date of this Agreement or the Closing Date, as the case may be, that the Company has complied with all agreements and satisfied all 17 17 conditions on its part to be performed or satisfied hereunder at or prior to the date of this Agreement or the Closing Date, as the case may be, that no stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted by the Commission and that, subsequent to the date of the most recent financial statements in the Prospectus, there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Prospectus or as described in such certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representative and counsel for the Purchasers, this Agreement and all obligations of the Purchasers hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or telegraph confirmed in writing. The Company will furnish the Purchasers, without charge, with such conformed copies of such opinions, certificates, letters and documents as they reasonably request. 7. Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Purchaser against any losses, claims, damages or liabilities, joint or several, to which such Purchaser may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each such Purchaser for any legal or other expenses reasonably incurred by such Purchaser, in connection with investigating or defending any such loss, claim, damage, liability or 18 18 action as such expenses are incurred; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with information furnished to the Company by any Purchaser specifically for inclusion therein; and provided further, that the Company shall not be liable to any Purchaser under the indemnity agreement in this subsection (a) to the extent that any such loss, claim, damage or liability of such Purchaser results from the fact that such Purchaser sold Securities to a person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus as then amended or supplemented in any case where such delivery is required by the Act if the Company has previously furnished copies thereof to such Purchaser and the loss, claim, damage or liability results from an untrue statement or omission of a material fact contained in the earlier prospectus which was corrected in the Prospectus as then amended, supplemented or modified. (b) Each Purchaser will severally indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with information furnished to the Company by such Purchaser specifically for the use therein, and will reimburse any legal or other expenses reasonably incurred by the Company in connection with the investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred. The Company acknowledges that the statements set forth in the last paragraph of the second cover page, in the first paragraph of the second page and under the heading "Standby Arrangement" in the Prospectus constitute the only information furnished by or on behalf of the several Purchasers for inclusion in the Prospectus, and you, as the Representative, confirm that such statements are correct. 19 19 (c) Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under subsection (a) or (b) above, notify the indemnifying party of the commencement thereof; but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than under subsections (a) or (b) above. In case any such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein, and to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this Section for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable cost of investigation. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement. (d) If the indemnity provided for in this Section is unavailable (other than as a result of the provisos contained in subsection (a) or (b)) or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as result of the losses, claims, damages or liabilities or actions in respect thereof referred to in subsection (a) or (b) above in such proportion as is appropriate to reflect the relative fault of the Company on the one hand and the Purchasers on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities as well as any other relevant equitable considerations including, relative benefit. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company 20 20 or the Purchasers and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Purchasers agree that it would not be just and equitable if contributions pursuant to this subsection (d) were determined by pro rata allocation (even if the Purchasers were treated as one entity for such purpose) or any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), no Purchaser shall be required to contribute any amount in excess of the aggregate of (i) such Purchaser's total compensation pursuant to Section 3 hereof and (ii) the net proceeds to such Purchaser from the resale of Purchased Securities in accordance with Section 2(c) hereof. No person guilty of such fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Purchasers' obligations in the subsection (d) to contribute are several in proportion to their respective purchase obligations and not joint. 8. Soliciting Conversions. The Purchasers may assist the Company in soliciting conversion of the Redeemable Securities by the holders thereof but shall not be entitled to compensation by the Company for any such assistance. 9. Default by a Purchaser. If any one or more Purchasers shall fail to purchase and pay for any of the Securities agreed to be purchased by such Purchaser or Purchasers hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Purchasers shall be obligated severally to take up and pay for (in the respective proportions which the percentage set forth opposite their names in Schedule I hereto bears to the aggregate percentage set forth opposite the names of all remaining Purchasers) the Securities which the defaulting Purchaser or Purchasers agreed but failed to purchase; provided; however, that in the event that the aggregate 21 21 percentage which the defaulting Purchaser or Purchasers agreed but failed to purchase shall exceed 10%, the remaining Purchasers shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting Purchaser does not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Purchaser or the Company. In the event of a default by any Purchaser as set forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding seven days, as the Representative shall determine in order that the required changes in Registration Statement and the Prospectus or in any other documents or arrangements may be effected. As used in this Agreement, the term "Purchaser" includes any person substituted for a Purchaser under this Section. Nothing contained in this Agreement shall relieve any defaulting Purchaser of its liability, if any, to the Company and any nondefaulting Purchaser for damages occasioned by its default hereunder. 10. Survival of Certain Representations and Obligations. The respective indemnities, agreements, representations, warranties and other statements of the Company or its officers and of the several Purchasers set forth in or made in writing pursuant to this Agreement will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of any Purchaser, the Company or any of their respective representatives, officers or directors or any controlling person and will survive the conversion of any Redeemable Securities and the delivery of and payment for the Securities. If for any reason the purchase of the Securities by the Purchasers under this Agreement is not consummated, the Company shall remain responsible for the expenses to be paid or reimbursed by it pursuant to Section 5(g) and the respective obligations of the Company and the Purchasers pursuant to Section 7 shall remain in effect. If the purchase of the Securities by the Purchasers is not consummated for any reason, other than solely because of the termination of this Agreement pursuant to Section 9 or the occurrence of any event specified in clause (ii), (iv) or (v) of Section 6(c), the Company will reimburse the Purchasers for all out-of-pocket expenses (including reasonable fees and disbursements of counsel) incurred by them in connection with the offering of the Securities, but the Company shall be under no further liability to any Purchaser except as provided in Section 7. 22 22 11. Notices. All statements, requests, notices and agreements hereunder shall be in writing and if to the Purchasers shall be sufficient in all respects, if delivered or sent by first class mail, telex, or facsimile transmission (confirmed in writing by overnight courier sent on the day of such facsimile transmission) to the address of the Representative as set forth in this Agreement; and if to the Company shall be sufficient in all respects if delivered or sent by first class mail, telex, or facsimile transmission (confirmed in writing by overnight courier sent on the day of such facsimile transmission) to the address of the Company set forth in the Registration Statement, Attention: Secretary. 12. Successors. This Agreement will inure to the benefit of and be binding upon the Company and such Purchasers as are identified in this Agreement and their respective successors and the officers and directors and controlling persons referred to in Section 7, and no other person will have any right or obligation hereunder. 13. Time of Essence. Time shall be of the essence of this Agreement. As used herein the term "business day" shall mean any day when the Commission's office in Washington, D.C. is open for business. 14. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. 15. Counterparts. This Agreement may be executed by any ne or more of the parties hereto and thereto in any number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument. 23 23 If the foregoing is in accordance with your understanding, please sign and return three counterparts hereof. Very truly yours, NEWMONT MINING CORPORATION By ------------------------------------- Name: Title: Accepted as of the date hereof: SALOMON BROTHERS INC GOLDMAN, SACHS & CO. S.G. WARBURG & Co. INC. By: SALOMON BROTHERS INC By: -------------------------- Name: Title: Vice President On behalf of each of the Purchasers EX-5 3 OPINION OF WHITE & CASE 1 EXHIBIT 5 November 14, 1995 Newmont Mining Corporation 1700 Lincoln Street Denver, Colorado 80203 Dear Sirs: We have examined the Registration Statement on Form S-3 (the "Registration Statement") under the Securities Act of 1933, as amended (the "Securities Act"), in the form in which it is to be filed today by Newmont Mining Corporation, a Delaware corporation (the "Company"), with the Securities and Exchange Commission (the "Commission"), relating to the issuance from time to time of a maximum of 7,899,436 shares (the "Shares") of Common Stock, par value $1.60 per share of the Company that have been or may be acquired by (i) Salomon Brothers Inc, Goldman Sachs & Co. and SBC Warburg, a division of Swiss Bank Corporation (collectively the "Purchasers") upon conversion of the Depositary Shares (the "Depositary Shares") of the Company, (ii) the Purchasers pursuant to the standby arrangement described in the Prospectus forming part of the Registration Statement (the "Standby Arrangement") and (iii) certain other stockholders to be identified in Prospectus Supplements to the Prospectus forming part of the Registration Statement who elect to have sales made by them prior to December 7, 1995 of shares of Common Stock that were issued upon conversion of the Depositary Shares covered by the Registration Statement. Based upon our examination of such documents, certificates, records, authorizations and proceedings as we have deemed relevant, it is our opinion that the Shares have been duly authorized by all necessary corporate action by the Company and, when issued, delivered and, in the case of Shares purchased by the Purchasers pursuant to the Standby Arrangement, paid for as contemplated by the Prospectus forming part of the Registration Statement, will be validly issued, fully paid and nonassessable. We consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm appearing under the caption "Validity of Common Stock" in the Prospectus forming part of the Registration Statement. In giving this consent, we do not hereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the Commission. Very truly yours, White & Case EX-23.1 4 CONSENT OF ARTHUR ANDERSEN LLP 1 [ARTHUR ANDERSEN LLP LETTERHEAD] EXHIBIT 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our report dated March 14, 1995 included in Newmont Mining Corporation's Form 10-K for the year ended December 31, 1994 and to all references to our Firm included in this registration statement. /s/ ARTHUR ANDERSEN LLP ----------------------------- Denver, Colorado November 13, 1995 EX-24 5 POWER OF ATTORNEY 1 EXHIBIT 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Timothy J. Schmitt and Graham M. Clark, Jr., and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and revocation, in his name and on his behalf, to do any and all acts and things and to execute any and all instruments which they and each of them may deem necessary or advisable to enable Newmont Mining Corporation (the "Company") to comply with the Securities Act of 1933, as amended (the "Act"), and any rules, regulations or requirements of the Securities and Exchange Commission in respect thereof, in connection with the registration under the Act of up to, and including, the number of shares of Common Stock of the Company that is the maximum number of shares issuable upon conversion of all outstanding shares of the Company's $5.50 Convertible Preferred Stock, $5.00 par value per share, including power and authority to sign his name in any and all capacities (including his capacity as a Director and/or Officer of the Company) to a Registration Statement on Form S-3 or such other form as may be appropriate, and to any and all amendments, including post-effective amendments, to such Registration Statement, and to any and all instruments or documents filed as part of or in connection with such Registration Statement or any amendments thereto; and the undersigned hereby ratifies and confirms all that said attorneys-in-fact and agents, or any of them, shall lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned have subscribed these presents as of the 13th day of November, 1995. Signature Title - --------- ----- /s/ Rudolph I.J. Agnew Director - --------------------------------- Rudolph I.J. Agnew /s/ J.P. Bolduc Director - --------------------------------- J.P. Bolduc 2 /s/ Ronald C. Cambre Chairman, President and - --------------------------------- Chief Executive Officer Ronald C. Cambre and Director (Principal Executive Officer) /s/ Joseph P. Flannery Director - --------------------------------- Joseph P. Flannery /s/ Thomas A. Holmes Director - --------------------------------- Thomas A. Holmes /s/ Robin A. Plumbridge Director - --------------------------------- Robin A. Plumbridge /s/ Moeen A. Qureshi Director - --------------------------------- Moeen A. Qureshi /s/ Michael K. Reilly Director - --------------------------------- Michael K. Reilly /s/ William I.M. Turner, Jr. Director - --------------------------------- William I.M. Turner, Jr. /s/ Wayne W. Murdy Senior Vice President - --------------------------------- and Chief Financial Officer Wayne W. Murdy (Principal Financial Officer) /s/ Gary E. Farmar Vice President and Controller - --------------------------------- (Principal Accounting Gary E. Farmar Officer) -2- -----END PRIVACY-ENHANCED MESSAGE-----