Registration No. 333-86890
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 3
to
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------
NEWMONT MINING CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
84-1611629
(I.R.S. Employer Identification No.)
1700 Lincoln Street
Denver, Colorado 80203
(303) 863-7414
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
Britt D. Banks, Esq.
Newmont Mining Corporation
1700 Lincoln Street
Denver, Colorado 80203
(303) 863-7414
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Maureen Brundage, Esq.
White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
(212) 819-8200
Approximate date of commencement of proposed sale to the public: From time
to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.|X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
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.
SUBJECT TO COMPLETION, DATED ________, 2003
NEWMONT MINING CORPORATION
5,054,653 Shares of Common Stock
Issuable upon Exercise
of
Class B Warrants
of
Newmont Mining Corporation of Canada Limited
(formerly known as Franco-Nevada Mining Corporation Limited)
---------------------------
This prospectus relates to shares of common stock of Newmont Mining
Corporation that may be issued from time to time upon the exercise of
outstanding Class B Warrants of Newmont Mining Corporation of Canada Limited
(formerly known as Franco-Nevada Mining Corporation Limited), a subsidiary of
Newmont Mining Corporation. Each Class B Warrant is exercisable for 2.464 shares
of common stock of Newmont Mining Corporation upon surrender of one Warrant and
C$100, subject to adjustment. As of October 22, 2003, 2,051,401 Class B Warrants
were outstanding. As used in this prospectus, "$" means U.S. dollars and "C$"
means Canadian dollars.
The Newmont Mining Corporation common stock trades on the New York Stock
Exchange under the symbol "NEM" and in the form of Australian CHESS depositary
interests on the Australian Stock Exchange under the symbol "NEM".
See "Risk Factors" beginning on page 3 regarding factors you should
consider before exercising your Warrants for shares of our common stock.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
This prospectus is dated , 2003.
The information contained in this prospectus is not complete and may be changed.
We may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
TABLE OF CONTENTS
NEWMONT MINING CORPORATION....................................................3
RISK FACTORS..................................................................3
FORWARD-LOOKING STATEMENTS...................................................12
THE ACQUISITION OF FRANCO-NEVADA.............................................13
USE OF PROCEEDS..............................................................13
DESCRIPTION OF THE WARRANTS..................................................13
DESCRIPTION OF THE NEWMONT MINING CORPORATION CAPITAL STOCK..................14
U.S. FEDERAL INCOME TAX CONSIDERATIONS AS A REAL PROPERTY
HOLDING CORPORATION..........................................................24
PLAN OF DISTRIBUTION.........................................................24
LEGAL OPINION................................................................25
EXPERTS......................................................................25
WHERE YOU CAN FIND MORE INFORMATION..........................................26
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NEWMONT MINING CORPORATION
Newmont Mining Corporation's original predecessor corporation was
incorporated in 1921 under the laws of Delaware. On February 13, 2002, at a
special meeting of the stockholders of Newmont, stockholders approved adoption
of an Agreement and Plan of Merger that provided for a restructuring of Newmont
to facilitate the February 2002 acquisitions described below and to create a
more flexible corporate structure. Newmont merged with an indirect, wholly-owned
subsidiary, which resulted in Newmont becoming a direct wholly-owned subsidiary
of a new holding company. The new holding company was renamed Newmont Mining
Corporation. There was no impact to the consolidated financial statements of
Newmont as a result of this restructuring and former stockholders of Newmont
became stockholders of the new holding company. In this prospectus, "Newmont,"
"we," "our" and "us" refer to Newmont Mining Corporation and/or our affiliates
and subsidiaries.
On February 16, 2002, Newmont completed the acquisition of Franco-Nevada
Mining Corporation Limited, a Canadian company, pursuant to a Plan of
Arrangement. As a result, Franco-Nevada became a subsidiary of Newmont and
subsequently changed its name to Newmont Mining Corporation of Canada Limited.
On February 20, 2002, Newmont gained control of Normandy Mining Limited, an
Australian company, through an off-market bid for all of the ordinary shares of
Normandy. On February 26, 2002, when Newmont's off-market bid for Normandy
expired, Newmont had a relevant interest in more than 96% of Normandy's
outstanding shares. Subsequently, Newmont exercised its compulsory acquisition
rights under Australian law to acquire all of the shares of Normandy.
We are engaged in the production of gold, the exploration for gold and the
acquisition and development of gold properties worldwide. We produce gold from
operations in North America, South America, Australia, New Zealand, Indonesia,
Uzbekistan and Turkey. We are also engaged in the production of, and exploration
for, silver, copper and zinc.
Our principal executive offices are located at 1700 Lincoln Street, Denver,
Colorado 80203 and our telephone number is (303) 863-7414.
RISK FACTORS
Investment in our securities is subject to risks and uncertainties.
Every investor or potential investor in Newmont should carefully consider
the risks that are set forth below, which have been separated into two groups:
- risks related to the gold mining industry generally; and
- risks related to our operations.
Other risks may be subsequently identified and the risk factors set forth
below may be modified or updated in documents that we file subsequent to the
date of this prospectus with the SEC which are incorporated by reference into
this prospectus, as described in "Where You Can Find More Information."
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Risks Related to the Gold Mining Industry Generally
A Substantial or Extended Decline in Gold Prices Would Have a Material
Adverse Effect on Newmont
Our business is extremely dependent on the price of gold, which is affected
by numerous factors beyond our control. Factors tending to put downward pressure
on the price of gold include:
- sales or leasing of gold by governments and central banks;
- a low rate of inflation and a strong U.S. dollar;
- global and regional recession or reduced economic activity;
- speculative trading;
- decreased perception of geopolitical or economic risk;
- decreased demand for gold for industrial uses, use in jewelry, and
investment;
- high supply of gold from production, disinvestment, and scrap and
hedging;
- sales by gold producers in forward transactions and other hedging
transactions; and
- devaluing local currencies (relative to gold priced in U.S. dollars)
leading to lower production costs and higher production in certain
major gold-producing regions.
Any drop in the price of gold adversely impacts our revenues, profits and
cash flows, particularly in light of our "no-hedging" philosophy. We have
recorded asset writedowns in recent years as a result of a sustained period of
low gold prices. We may experience additional asset impairments as a result of
low gold prices in the future.
In addition, sustained low gold prices can:
- reduce revenues further by production cutbacks due to cessation of the
mining of deposits or portions of deposits that have become uneconomic
at the then-prevailing gold price;
- halt or delay the development of new projects;
- reduce funds available for exploration, with the result that depleted
reserves are not replaced; and
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- reduce existing reserves, by removing ores from reserves that cannot be
economically mined or treated at prevailing prices.
Also see the discussion of "Gold Price" in Item 1, "Business" in our Annual
Report on Form 10-K for our most recently completed fiscal year.
Gold Producers Must Continually Obtain Additional Reserves
Gold producers must continually replace gold reserves depleted by
production. Depleted reserves must be replaced by expanding known ore bodies or
by locating new deposits in order for gold producers to maintain production
levels over the long term. Gold exploration is highly speculative in nature,
involves many risks and frequently is unproductive. No assurances can be given
that any of our new or ongoing exploration programs will result in new mineral
producing operations. Once mineralization is discovered, it may take many years
from the initial phases of drilling until production is possible, during which
time the economic feasibility of production may change. As a result, reserves
may decline as gold is produced if they are not adequately replaced.
Estimates of Proven and Probable Reserves are Uncertain
Estimates of proven and probable reserves are subject to considerable
uncertainty. Such estimates are, to a large extent, based on interpretations of
geologic data obtained from drill holes and other sampling techniques. Gold
producers use feasibility studies to derive estimates of cash operating costs
based upon anticipated tonnage and grades of ore to be mined and processed, the
predicted configuration of the ore body, expected recovery rates of metals from
the ore, comparable facility, equipment, and operating costs, and other factors.
Actual cash operating costs and economic returns on projects may differ
significantly from original estimates. Further, it may take many years from the
initial phase of drilling before production is possible and, during that time,
the economic feasibility of exploiting a discovery may change.
Increased Costs Could Affect Profitability
The total cash costs at any particular mining location are frequently
subject to great variation from one year to the next due to a number of factors,
such as changing ore grade, metallurgy and mining activities in response to the
physical shape and location of the ore body. In addition, cash costs are
affected by the price of commodities such as fuel and electricity. Such
commodities are at times subject to volatile price movements, including
increases that could make production at certain operations less profitable. A
material increase in costs at any one location could have a significant effect
on our profitability.
Mining Accidents or Other Adverse Events at a Mining Location Could Reduce
Our Production Levels
At any of our operations, production may fall below historic or estimated
levels as a result of mining accidents such as a pit wall failure in an open pit
mine, or cave-ins or flooding at underground mines. In addition, production may
be unexpectedly reduced at a location if, during
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the course of mining, unfavorable ground conditions or seismic activity are
encountered; ore grades are lower than expected; the physical or metallurgical
characteristics of the ore are less amenable to mining or treatment than
expected; or our equipment, processes or facilities fail to operate properly or
as expected.
The Use of Hedging Instruments May Prevent Gains Being Realized from
Subsequent Price Increases
Consistent with our "no-hedging" philosophy, we do not intend to enter into
new material gold hedging positions and we intend to decrease our hedge
positions over time by opportunistically delivering gold into our existing hedge
contracts, and by seeking to unwind our hedge positions when economically
attractive. Nonetheless, we currently have gold hedging positions. If the gold
price rises above the price at which future production has been committed under
these hedge instruments, we will have an opportunity loss. However, if the gold
price falls below that committed price, our revenues will be protected to the
extent of such committed production. In addition, we may experience losses if a
hedge counterparty defaults under a contract when the contract price exceeds the
gold price.
For a more detailed description of our hedge positions, see the discussion
in "Hedging" in Item 7A, "Quantitative and Qualitative Disclosures About Market
Risks" in our Annual Report on Form 10-K for our most recently completed fiscal
year.
Currency Fluctuations May Affect the Costs that Newmont Incurs
Currency fluctuations may affect the costs that we incur at our operations.
Gold is sold throughout the world based principally on the U.S. dollar price,
but a portion of our operating expenses are incurred in local currencies. The
appreciation of non-U.S. dollar currencies against the U.S. dollar can increase
the costs of gold production in U.S. dollar terms at mines located outside the
United States, making such mines less profitable. The currencies which primarily
impact our results of operations are the Canadian and Australian dollars.
During 2002, the Canadian and Australian dollars strengthened by an average
of 1% and 5%, respectively, against the U.S. dollar. This increased U.S. dollar
reported operating costs in Canada and Australia by approximately $1.0 million
and $18.3 million, respectively.
For a more detailed description of how currency exchange rates may affect
costs, see the discussion in "Foreign Currency Exchange Rates" in Item 7,
"Management's Discussion and Analysis of Consolidated Financial Condition and
Results of Operations" in our Annual Report on Form 10-K for our most recently
completed fiscal year.
Gold Mining Companies are Subject to Extensive Environmental Laws and
Regulations
Our exploration, mining and processing operations are regulated in all
countries in which we operate under various federal, state, provincial and local
laws and regulations relating to the protection of the environment, which
generally include air and water quality, hazardous waste
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management and reclamation. Furthermore, these laws and regulations are
continually changing and are generally becoming more restrictive. We have made,
and expect to make in the future, expenditures to comply with such laws and
regulations, but we cannot predict the amount of such future expenditures.
Estimated future reclamation costs are based principally on legal and regulatory
requirements. The regulatory environment in which we operate could change in
ways that would substantially increase our costs to achieve compliance. Delays
in obtaining or failure to obtain government permits and approvals or
significant changes in regulation could have a material adverse effect on our
operations or financial position.
In addition, we are involved in several matters concerning environmental
obligations associated with former mining activities. Generally, these matters
concern developing and implementing remediation plans at the various sites
involved. We cannot predict the ultimate resolution of these matters and we may
not have sufficient reserves to cover any liabilities.
For additional information on our potential environmental liabilities, see
the notes to our Consolidated Financial Statements contained in our in our
Annual Report on Form 10-K for our most recently completed fiscal year and any
subsequent Quarterly Report on Form 10-Q for our most recently completed fiscal
quarter.
Risks Related to Newmont Operations
Certain Factors Outside of Our Control May Affect Our Ability to Support
the Carrying Value of Goodwill
At December 31, 2002, the carrying value of our goodwill was approximately
$3.0 billion or 30% of our total assets. Such goodwill has been assigned to our
Merchant Banking Segment ($1.6 billion) and Exploration Segment ($1.1 billion),
and to various mine site reporting units ($300 million in the aggregate). As
further described in our Annual Report on Form 10-K for our most recently
completed fiscal year under "Critical Accounting Policies" in Item 7,
"Management's Discussion and Analysis of Consolidated Financial Condition and
Results of Operations" and in Note 3 to the Consolidated Financial Statements,
this goodwill arose in connection with our February 15, 2002 acquisition of
Normandy and Franco-Nevada, and it represents the excess of the aggregate
purchase price over the fair value of the identifiable net assets of Normandy
and Franco-Nevada as measured at February 15, 2002. Such goodwill was assigned
to reporting units based on independent appraisals performed by Behre Dolbear &
Company, Inc., a mineral industry consulting firm ("Behre Dolbear"). We
evaluate, on at least an annual basis, the carrying amount of goodwill to
determine whether current events and circumstances indicate that such carrying
amount may no longer be recoverable. This evaluation involves a comparison of
the fair value of our reporting units to their carrying values. The fair values
of the applicable reporting units are based in part on certain factors that may
be partially or completely outside of our control, such as the investing
environment, the discovery of proven and probable reserves, commodity prices and
other factors. In addition, we may not be able to easily replicate some of the
assumptions underlying the Merchant Banking and Exploration Segment February 15,
2002 appraisals, even though these assumptions were based on historical
experience and we consider these assumptions to be reasonable under the
circumstances. With respect to the Merchant Banking Segment, these assumptions
included (i) an initial investment of
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$300 million; (ii) additional annual investments of $50 million commencing in
year two (2003) of a seven-year time horizon; (iii) an average long-term
after-tax return of 37.3%; (iv) the immediate reinvestment of average annual
returns; and (v) discount rates ranging from 8% to 9%. With respect to the
Exploration Segment, these assumptions included (i) 1.6 million recoverable
ounces of additions to proven and probable reserves through new discoveries in
the first year following the acquisition; (ii) an annual growth rate for such
reserve additions of 23.1% over a ten-year period; (iii) a fair value for each
recoverable ounce of reserve additions of approximately $58; and (iv) a discount
rate of 15%.
Our assumptions set forth above are subject to risks and uncertainties. In
the absence of any mitigating valuation factors, our failure to achieve one or
more of the February 15, 2002 appraisal assumptions will over time result in an
impairment charge. Accordingly, we cannot give you any assurance that
significant non-cash impairment losses will not be recorded in the future due to
possible declines in the fair values of our reporting units. For a more detailed
description of the estimates, assumptions and related risks involved in
assessing the recoverability of the carrying value of goodwill, see the
discussion under "Critical Accounting Policies" in Item 7, "Management's
Discussion and Analysis of Consolidated Financial Condition and Results of
Operations" in our Annual Report on Form 10-K for our most recently completed
fiscal year.
Our Level of Indebtedness May Affect Our Business
As a result of our acquisitions, our level of indebtedness has increased,
although net indebtedness is a smaller percentage of our total capitalization
than it was prior to the acquisitions. As of September 30, 2003, our debt was
$1.4 billion. This level of indebtedness could have important consequences for
our operations, including:
- We may need to use a large portion of our cash flow to repay principal
and pay interest on our debt, which will reduce the amount of funds
available to finance our operations and other business activities;
- Our debt level may make us vulnerable to economic downturns and adverse
developments in our businesses and markets; and
- Our debt level may limit our ability to pursue other business
opportunities, borrow money for operations or capital expenditures in
the future or implement our business strategy.
We expect to obtain the funds to pay our expenses and to pay principal and
interest on our debt by utilizing cash flow from operations. Our ability to meet
these payment obligations will depend on our future financial performance, which
will be affected by financial, business, economic and other factors. We will not
be able to control many of these factors, such as economic conditions in the
markets in which we operate. We cannot be certain that our future cash flow from
operations will be sufficient to allow us to pay principal and interest on our
debt and meet our other obligations. If cash flow from operations is
insufficient, we may be required to refinance all or part of our existing debt,
sell assets, borrow more money or issue additional
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equity. We cannot be sure that we will be able to do so on commercially
reasonable terms, if at all.
Our Operations Outside North America and Australia are Subject to the Risks
of Doing Business Abroad
Exploration, development and production activities outside of North America
and Australia are potentially subject to political and economic risks,
including:
- cancellation or renegotiation of contracts;
- disadvantages of competing against companies from countries that are
not subject to U.S. laws and regulations, including the Foreign Corrupt
Practices Act;
- changes in foreign laws or regulations;
- changes in tax laws;
- royalty and tax increases or claims by governmental entities, including
retroactive claims;
- expropriation or nationalization of property;
- currency fluctuations (particularly in countries with high inflation);
- foreign exchange controls;
- restrictions on the ability of local operating companies to sell gold
offshore for U.S. dollars, and on the ability of such companies to hold
U.S. dollars or other foreign currencies in offshore bank accounts;
- import and export regulations, including restrictions on the export of
gold;
- restrictions on the ability to pay dividends offshore;
- environmental controls;
- risks of loss due to civil strife, acts of war, guerrilla activities,
insurrection and terrorism; and
- other risks arising out of foreign sovereignty over the areas in which
our operations are conducted.
Consequently, our exploration, development, and production activities
outside of North America and Australia may be substantially affected by factors
beyond our control, any of which could materially adversely affect our financial
position or results of operations. Furthermore, in
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the event of a dispute arising from such activities, we may be subject to the
exclusive jurisdiction of courts outside North America or Australia or may not
be successful in subjecting persons to the jurisdiction of the courts in North
America or Australia, which could adversely affect the outcome of a dispute.
We have substantial investments in Indonesia, a nation that since 1997 has
undergone financial crises and devaluation of its currency, outbreaks of
political and religious violence, changes in national leadership, and the
secession of East Timor, one of its former provinces. Despite democratic
elections in 1999, a change in government occurred in late July 2001, and civil
unrest, independence movements, and tensions between the civilian government and
the military continue. These problems heighten the risk of abrupt changes in the
national policy toward foreign investors, which in turn could result in
unilateral modification of concessions or contracts, increased taxation, or
expropriation of assets. If this were to occur with respect to our Contracts of
Work, our financial condition and results of operations could be materially
adversely affected.
During the last two years, Minera Yanacocha, of which we own a 51.35%
interest, has been the target of numerous local political protests, including
ones that blocked the road between the Yanacocha mine complex and the city of
Cajamarca in Peru. We cannot predict whether these incidents will continue, nor
can we predict the government's continuing positions on foreign investment,
mining concessions, land tenure, environmental regulation or taxation. The
continuation or intensification of protests or a change in prior governmental
positions could adversely affect our operations in Peru.
Recent violence reportedly committed by radical elements in Indonesia and
other countries, and the presence of U.S. forces in Iraq and Afghanistan may
increase the risk that operations owned by U.S. companies will be the target of
further violence. If any of our operations were so targeted, it could have an
adverse effect on our business.
Remediation Costs for Federal Superfund Law Liabilities May Exceed the
Provisions We Have Made
We have conducted extensive work at two inactive sites in the United
States. At one of these sites, remediation requirements have not been finally
determined, and, therefore, the final cost cannot be estimated. At a third site
in the United States, an inactive uranium mine and mill formerly operated by one
of our subsidiaries, remediation work at the mill is ongoing, but remediation at
the mine is subject to dispute and has not yet commenced. The environmental
standards that may ultimately be imposed at this site as a whole remain
uncertain and there is a risk that the costs of remediation may exceed the
provision our subsidiary has made for such remediation by a material amount.
Whenever a previously unrecognized remediation liability becomes known or a
previously estimated cost is increased, the amount of that liability or
additional cost is expensed and this can materially reduce net income in that
period.
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Occurrence of Events for Which We are Not Insured May Affect Our Cash Flow
and Overall Profitability
We maintain insurance to protect ourselves against certain risks related to
our operations. This insurance is maintained in amounts that we believe to be
reasonable depending upon the circumstances surrounding each identified risk.
However, we may elect not to have insurance for certain risks because of the
high premiums associated with insuring those risks or for various other reasons;
in other cases, insurance may not be available for certain risks. Some concern
always exists with respect to investments in parts of the world where civil
unrest, war, nationalist movements, political violence or economic crisis are
possible. These countries may also pose heightened risks of expropriation of
assets, business interruption, increased taxation and a unilateral modification
of concessions and contracts. We do not maintain insurance against political
risk. Occurrence of events for which we are not insured may affect our cash flow
and overall profitability.
Our Business Depends on Good Relations with Our Employees
We may experience difficulties in integrating labor policies, practices,
and strategies with our acquired subsidiaries. In addition, problems with or
changes affecting employees of one subsidiary may affect relations with
employees of other subsidiaries.
At December 31, 2002, unions represented approximately 37% of our worldwide
work force. On that date, we had 958 employees at our Carlin, Nevada operations,
244 employees in Canada at our Golden Giant operation, 3,446 employees in
Indonesia at our Batu Hijau operations, 47 employees in New Zealand at our
Martha operation, 351 employees in Bolivia at our Kori Kollo operation, and 494
employees in Australia at our Golden Grove, Pajingo, Tanami and Yandal
operations combined, working under a collective bargaining agreement or similar
labor agreement.
Currently there are labor agreements in effect for all of these workers
except those in Carlin, Nevada. The Operating Engineers Local Union No. 3 of the
International Union of Operating Engineers, AFL-CIO is the bargaining agent for
these employees. The Carlin labor agreement expired on September 30, 2002. We
are currently in negotiations with the union to reach an acceptable contract,
but also have developed contingency plans in case of a work stoppage or strike.
We cannot predict when or if we will reach an agreement with the union. If no
such agreement is reached or if the negotiations take an excessive amount of
time, there may be a heightened risk of a prolonged work stoppage.
Our Earnings also Could be Affected by the Prices for Other Commodities
Our revenues and earnings also could be affected by the prices of other
commodities such as copper and zinc, although to a lesser extent than by the
price of gold. The prices of copper and zinc are affected by numerous factors
beyond our control. For more information, see the
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discussion under "Copper and Zinc" in Item 1, "Business" and the discussion
under Item 2, "Properties" in our Annual Report on Form 10-K for our most
recently completed fiscal year.
Title to Some of Our Properties May Be Defective or Challenged
Although we have conducted title reviews of our properties, title review
does not necessarily preclude third parties from challenging our title. While we
believe that we have satisfactory title to our properties, some risk exists that
some titles may be defective or subject to challenge. In addition, some of our
Australian properties could be subject to native title or traditional landowner
claims, but these claims would not deprive us of the properties. For information
regarding native title or traditional landowner claims, see the discussion under
the Australia section of Item 2, "Properties" in our Annual Report on Form 10-K
for our most recently completed fiscal year.
We Compete With Other Mining Companies
We compete with other mining companies to attract and retain key executives
and other employees with technical skills and experience in the mining industry.
We also compete with other mining companies for rights to mine properties
containing gold and other minerals. There can be no assurance that we will
continue to attract and retain skilled and experience employees, or to acquire
additional rights to mine properties.
Our Anti-Takeover Provisions Could Limit Amounts Offered in a Takeover
Article Ninth of our certificate of incorporation and our rights agreement
may make it more difficult for various corporations, entities or persons to
acquire control of us or to remove management. Article Ninth of our certificate
of incorporation requires us to obtain the approval of holders of 80% of all
classes of our capital stock who are entitled to vote in the election of
directors, voting together as one class, to enter into certain types of
transactions generally associated with takeovers, unless our Board of Directors
approves the transaction before the other corporation, entity or person acquires
10% or more of our outstanding shares. In addition, the Board has declared a
dividend of one preferred share purchase right for each outstanding share of our
common stock under a rights agreement, dated as of February 13, 2002, between
Newmont and Mellon Investor Services LLC, as the rights agent. The rights
agreement, in effect, imposes a significant penalty upon any person or group
that acquires 15% or more of our outstanding common stock without the approval
of the Board. While the anti-takeover provisions protect stockholders from
coercive or otherwise unfair takeover tactics, they may also limit the premium
over market price available to holders of common stock in a takeover situation.
FORWARD-LOOKING STATEMENTS
Some statements contained in this prospectus (including information
incorporated by reference) are "forward-looking statements" within the meaning
of Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934 and are intended to be covered by the safe harbor provided
for under those sections. Our forward-looking statements include estimates of
future production, capital expenditures and other costs and expenses, reserve
estimates, projected acquisition synergies and the other statements set forth
under "Forward-
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Looking Statements" in Item 1, "Business" of our Annual Report on Form 10-K for
our most recently completed fiscal year, which is incorporated by reference into
this prospectus.
Our forward-looking statements are subject to risks, uncertainties and
other factors which could cause actual results to differ materially from future
results expressed, projected or implied by those forward-looking statements.
Important factors that could cause actual results to differ materially from our
forward-looking statements include gold and other commodity prices, currency
fluctuations, higher than anticipated production costs, potential environmental
liabilities, uncertainty in proven and probable gold reserves and political and
economic risks in the countries in which we operate, as well as the other
factors described in Item 1A, "Risk Factors" in our Annual Report on Form 10-K
for our most recently completed fiscal year, which is incorporated by reference
into this prospectus and "Risk Factors" above in this prospectus. Given these
uncertainties, readers are cautioned not to place undue reliance on our
forward-looking statements.
We do not undertake any obligation to release publicly any revisions to our
forward-looking statements to reflect events or circumstances after the date of
the document, or to reflect the occurrence of unanticipated events, except as
may be required under applicable securities laws.
THE ACQUISITION OF FRANCO-NEVADA
On February 16, 2002, we completed our acquisition of Franco-Nevada Mining
Corporation of Canada Limited pursuant to an arrangement agreement, dated as of
November 14, 2001. Pursuant to the arrangement agreement, each Franco-Nevada
common shareholder received in exchange for each Franco-Nevada common share
either: (1) 0.80 of an exchangeable share of Franco-Nevada (exchangeable for
Newmont common stock) or (2) 0.80 of a share of Newmont common stock.
Franco-Nevada became a subsidiary of Newmont and subsequently changed its name
to Newmont Mining Corporation of Canada Limited.
USE OF PROCEEDS
The shares of common stock will be issued to holders of the Class B
Warrants upon exercise of those Warrants and payment of the relevant exercise
price. Newmont Mining Corporation of Canada Limited will receive the exercise
price paid in connection with each exercise of the Class B Warrants and will use
the aggregate proceeds for general corporate purposes.
DESCRIPTION OF THE WARRANTS
The following is a summary of the terms of the Warrants relating to the
exercise rights of those Warrants, as well as other material terms of the
Warrants. For additional information regarding the Warrants, please refer to the
warrant agreements under which the Warrants were issued. Copies of the warrant
agreements can be obtained from Newmont.
The Class B Warrants were issued pursuant to the warrant agreements dated
as of November 12, 1993 and January 8, 1999, as amended and supplemented, each
between Euro-Nevada Mining Corporation Limited and Computershare Trust Company
of Canada (formerly
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Montreal Trust Company of Canada), as agent. As of October 22, 2003, 2,051,401
Class B Warrants were outstanding.
As a result of our acquisition of Franco-Nevada, the Warrants are
exercisable at any time into shares of our common stock. Each Class B Warrant is
exercisable for 2.464 shares of our common stock upon surrender of one Warrant
and C$100, subject to adjustment. The Warrants may be exercised at any time. The
Class B Warrants expire on November 12, 2003.
DESCRIPTION OF THE NEWMONT MINING CORPORATION
CAPITAL STOCK
Your rights as a stockholder of Newmont will be governed by Delaware law,
our certificate of incorporation and our by-laws. The following is a summary of
the material terms of our capital stock. For additional information regarding
our capital stock, please refer to the applicable provisions of Delaware law,
our certificate of incorporation and by-laws and the rights agreement, dated as
of February 13, 2002, between us and Mellon Investor Services LLC, as rights
agent, relating to rights to purchase shares of our series A junior
participating preferred stock. Copies of our certificate of incorporation, our
by-laws and our rights agreement are exhibits to the registration statement of
which this prospectus is a part.
As of October 22, 2003, we had 755,000,000 shares of authorized capital
stock. Those shares consisted of:
- 5,000,000 shares of preferred stock, par value $5.00 per share, of which
one share of special voting stock was outstanding; and
- 750,000,000 shares of common stock, par value $1.60 per share, of which (1)
365,960,090 shares were outstanding, including shares evidenced by
Australian CHESS depositary interests which represent beneficial ownership
of shares of common stock of Newmont on a ten-for-one basis, and (2)
43,357,329 shares were issuable upon conversion of the exchangeable shares
of Newmont Mining Corporation of Canada Limited (formerly known as
Franco-Nevada Mining Corporation Limited) which were issued in connection
with our acquisition of Franco-Nevada, have economic rights equivalent to
those of our common stock and are exchangeable on a one-for-one basis with
shares of our common stock.
The holder of the outstanding share of special voting stock exercises the
voting and other rights attached to the share as trustee for and on behalf of
the registered holders of outstanding shares of the exchangeable shares.
Common Stock
The following is a summary of the terms of our common stock. For additional
information regarding our common stock, please refer to our certificate of
incorporation, our by-laws and the applicable provisions of Delaware law.
Dividend Rights
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Holders of our common stock may receive dividends when, as and if declared
by our Board out of funds of Newmont legally available for the payment of
dividends. Subject to the terms of any outstanding preferred stock, holders of
our common stock may not receive dividends until we have satisfied our
obligations to any holders of our preferred stock.
As a Delaware corporation, we may pay dividends out of surplus or, if there
is no surplus, out of net profits for the fiscal year in which a dividend is
declared and/or the preceding fiscal year. Section 170 of the Delaware General
Corporation Law also provides that dividends may not be paid out of net profits
if, after the payment of the dividend, capital is less than the capital
represented by the outstanding stock of all classes having a preference upon the
distribution of assets.
Currently, we pay dividends on our common stock each quarter. The
determination of the amount and timing of future dividends will be made by our
Board of Directors from time to time and will depend on our future earnings,
capital requirements, financial conditions and other relevant factors.
Voting and Other Rights
Holders of our common stock are entitled to one vote per share and, in
general, a majority of votes cast with respect to a matter will be sufficient to
authorize action upon routine matters.
Holders of shares of our special voting share are entitled to vote, as a
single class, together with the holders of shares of our common stock on all
matters on which our stockholders are entitled to vote. The holders of record of
a majority of the outstanding shares of our capital stock entitled to vote at
the meeting of our stockholders must be present in person or represented by
proxy at the meeting in order to constitute a quorum for all matters to come
before the meeting. For purposes of determining the presence of a quorum,
"shares of our capital stock" includes shares of our common stock (including
shares represented by Australian CHESS depositary interests), as well as the
maximum number of shares of our common stock that the holder of the special
voting share is entitled to vote at the meeting on behalf of the holders of the
outstanding exchangeable shares. For additional information regarding our
special voting share, please see the discussion in "-- Special Voting Stock"
beginning on page 9 of this prospectus.
Special meetings of our stockholders may be called by our Board of
Directors or by the Chairman of the Board or by our President, and will be
called by the Chairman of the Board or by our President or Secretary upon a
written request stating the purposes of the proposed meeting and signed by a
majority of our Board of Directors or stockholders owning at least 25% of our
outstanding capital stock entitled to vote at the meeting.
Written notice of a meeting of our stockholders is given personally or by
mail, not less than 10 days nor more than 60 days before the date on which the
meeting is held, to each stockholder of record entitled to vote at the meeting.
The notice must state the time, place and purposes of the meeting. In the event
of a special meeting called upon the written request of our stockholders, the
notice will describe any business set forth in the statement of purpose in the
written stockholder request, as well as any additional business that our Board
of Directors proposes to be conducted at the meeting. If mailed, the notice will
be sent to our stockholders at
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their respective addresses appearing on our stock records or to such other
addresses as they may designate in writing, and will be deemed given when
mailed. A waiver of any notice, signed by a stockholder before or after the time
for the meeting, will be deemed equivalent to that stockholder having received
the notice.
Our Board of Directors is not classified. Directors are to be elected by a
plurality of those shares of our capital stock present and entitled to vote at a
meeting of stockholders, and our stockholders do not have the right to cumulate
their votes in the election of directors.
Liquidation
In the event of any liquidation, dissolution or winding up of Newmont,
holders of our common stock would be entitled to receive proportionately any
assets legally available for distribution to our stockholders with respect to
shares held by them, subject to any prior rights of the holders of any of our
preferred stock then outstanding. Immediately prior to any liquidation,
dissolution or winding up of Newmont, all holders of exchangeable shares would
be become holders of our common stock pursuant to the terms of the exchangeable
shares and would therefore be entitled to share ratably in any distribution to
other holders of common stock.
Redemption
Newmont common stock is not redeemable or convertible.
Preferred Share Purchase Rights
Each issued share of our common stock includes a preferred stock purchase
right. See "Anti-Takeover Provisions - Stockholders Rights Plan" below.
Other Provisions
All of the issued and outstanding shares of our common stock are validly
issued, fully paid and nonassessable. Holders of our common stock have no
preemptive rights with respect to any securities of Newmont.
Listing
Our common stock trades on the New York Stock Exchange under the symbol
"NEM." ChaseMellon Stockholder Services, L.L.C. is the registrar, transfer
agent, conversion agent and dividend disbursing agent for the common stock.
Our common stock also trades in the form of Australian CHESS depositary
interests on the Australian Stock Exchange under the symbol "NEM".
Newmont CDIs
The Newmont Australian CHESS depositary interests (the "CDIs") are units of
beneficial ownership in our common stock held by CHESS Depositary Nominees Pty
Ltd. (ACN 071346506) ("CDN"), a wholly owned subsidiary of the Australian Stock
Exchange Limited
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(ACN 008624691). The Newmont CDIs entitle holders to dividends and other rights
economically equivalent to our common stock on a ten-for-one basis, including
the right to attend Newmont stockholders' meeting. The Newmont CDIs are
convertible at the option of the holders into our common stock on a ten-for-one
basis. CDN, as the stockholder of record, will vote the underlying shares of our
common stock in accordance with the directions of the CDI holders.
Preferred Stock - General
Our preferred stock is issuable in series. Our Board has the power to fix
various terms for each series of preferred stock, including the following:
- voting powers,
- designations,
- preferences,
- the relative participating and option or other rights,
- qualifications, and
- limitations and restrictions.
A description of our outstanding preferred stock is set forth below.
Special Voting Stock
The following is a summary of our special voting stock, which consists of a
share of preferred stock with special voting rights. For additional information
regarding our special voting stock, please refer to the certificate of
designations setting forth the terms of the special voting stock. The
certificate of designations is an exhibit to the registration statement of which
this prospectus is a part.
Computershare Trust Company of Canada, as trustee under a voting and
exchange trust agreement, holds the outstanding share of special voting stock.
The holder of the special voting share exercises the voting and other rights
attached to the share as trustee for and on behalf of the registered holders of
the exchangeable shares of our wholly-owned subsidiary, Newmont Mining
Corporation of Canada Limited, formerly known as Franco-Nevada Mining
Corporation Limited ("Newmont Canada"). The exchangeable shares have economic
rights equivalent to those of our common stock and are exchangeable on a
one-for-one basis with shares of our common stock. Upon the unanimous approval
of Newmont's Board of Directors, Newmont Canada may from time to time issue
additional exchangeable shares. The following is a summary description of the
material provisions of the rights, privileges, restrictions and conditions
attaching to the special voting share and the related exchangeable shares as
they affect Newmont.
Ranking
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With respect to distributions of assets upon liquidation, dissolution or
winding up of Newmont, the special voting share ranks (1) senior to our common
stock, (2) on parity with our other preferred stock and (3) junior to any other
class or series of capital stock of Newmont.
Dividend Rights
The special voting share is not entitled to receive dividends.
Holders of exchangeable shares are entitled to receive dividends from
Newmont Canada which are equivalent to any declared by our Board of Directors on
our common stock. These dividends will be paid out of money, assets or property
of Newmont Canada properly applicable to the payment of dividends, or out of
authorized but unissued shares of Newmont Canada, as applicable. Holders of
exchangeable shares are not entitled to any dividends other than or in excess of
the foregoing dividends. The record date for the determination of the holders of
exchangeable shares entitled to receive payment of, and the payment date for,
any dividend declared on the exchangeable shares will be the same dates as the
record date and payment date, respectively, for the corresponding dividend
declared on shares of our common stock.
Voting Rights
Holders of exchangeable shares are not holders of our common stock and,
therefore, do not have the direct right to vote on matters relating to Newmont
on which our stockholders are entitled to vote.
The holder of the special voting share has the right to vote together with
the holders of our common stock on all matters on which holders of our common
stock are entitled to vote. The holder of the special voting share is entitled
to cast a number of votes equal to the lesser of (1) the number of exchangeable
shares outstanding from time to time (except those exchangeable shares held by
us or our affiliates) and (2) 10% of the total number of votes attached to the
shares of our common stock then outstanding. The holder of the special voting
share will exercise the voting and others rights attached to the share only on
the basis of instructions received from holders of exchangeable shares, as
trustee for and on behalf of the registered holders of the exchangeable shares.
Certain Restrictions
So long as any of the exchangeable shares not owned by us or our affiliates
are outstanding:
(1) without the approval of the holders of the exchangeable shares and
Newmont Canada (unless in each case the economic equivalent is simultaneously
issued, distributed or made, as the case may be, to the holders of exchangeable
shares), we will not:
- issue or distribute shares of our common stock, or securities
exchangeable for or convertible into or carrying rights to
acquire shares of our common stock, to the holders of all or
substantially all of the then outstanding shares of our common
stock by way of stock dividend or other distribution, other than
an issue of shares of our common stock, or
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securities exchangeable for or convertible into or carrying
rights to acquire shares of our common stock, to holders of
shares of our common stock (a) who exercise an option to receive
dividends in shares of our common stock or securities
exchangeable for or convertible into or carrying rights to
acquire shares of our common stock, in lieu of receiving cash
dividends, or (b) pursuant to any dividend reinvestment plan or
similar arrangement;
- issue or distribute rights, options or warrants to the holders of
all or substantially all of the then outstanding shares of our
common stock entitling them to subscribe for or to purchase
shares of our common stock, or securities exchangeable for or
convertible into or carrying rights to acquire shares of our
common stock;
- issue or distribute to the holders of all or substantially all of
our then outstanding shares of common stock (a) shares or
securities (including evidences of indebtedness) of Newmont of
any class (other than shares of our common stock or securities
convertible into or exchangeable for or carrying rights to
acquire shares of our common stock), or (b) rights, options,
warrants or other assets other than those referred to above;
- subdivide, redivide or change our then outstanding shares of
common stock into a greater number of shares of our common stock;
- reduce, combine, consolidate or change our then outstanding
shares of common stock into a lesser number of shares of our
common stock; or
- reclassify or otherwise change shares of our common stock or
effect an amalgamation, merger, reorganization or other
transaction affecting shares of our common stock.
(2) in the event that a tender offer, share exchange offer, issuer
bid, takeover bid or similar transaction with respect to shares of our common
stock is proposed by us or is proposed to us or our stockholders and is
recommended by our Board, or is otherwise effected or to be effected with the
consent or approval of the our Board, and the exchangeable shares are not
redeemed by Newmont Canada or purchased by us (or our wholly-owned subsidiary
Newmont Holdings ULC), we will expeditiously and in good faith take all actions
and do all things as are reasonably necessary or desirable to enable and permit
holders of exchangeable shares (other than us and our affiliates) to participate
in the transaction to the same extent and on an economically equivalent basis as
the holders of shares of our common stock, without discrimination. Without
limiting the generality of the foregoing, we will take all actions and do all
things as are reasonably necessary or desirable to ensure that holders of
exchangeable shares may participate in each similar transaction without being
required to retract exchangeable shares as against Newmont Canada or, if so
required, to ensure that any retraction, shall be effective only upon, and shall
be conditional upon, the closing of that transaction and only to the extent
necessary to participate in the transaction.
Liquidation Rights
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In the event of the liquidation, dissolution or winding-up of Newmont, (1)
the holder of the special voting share will be entitled to receive an amount
equal to $0.001 and (2) all of the exchangeable shares will automatically be
exchanged for shares of our common stock. We will purchase each exchangeable
share on the fifth business date prior to the liquidation, dissolution or
winding up for a purchase price per share to be satisfied by the delivery of one
share of our common stock, together with all declared and unpaid dividends on
the exchangeable shares, if any.
In the event of the liquidation, dissolution or winding-up of Newmont
Canada, we (or Newmont Holdings ULC) have the right to purchase all, but not
less than all, of the outstanding exchangeable shares from the holders thereof
upon payment of a liquidation amount. The liquidation amount will be the amount
per exchangeable share that a holder of exchangeable shares is entitled to
receive pursuant to the provisions attached to the exchangeable shares on the
liquidation, dissolution or winding-up of Newmont Canada, to be satisfied by the
delivery of one share of our common stock, together with all declared and unpaid
dividends on the exchangeable shares, if any.
Redemption and Retraction
The special voting share is not redeemable or convertible, except, if no
exchangeable shares, other than exchangeable shares held by us or our
affiliates, or securities which could give rise to the issuance of any
exchangeable shares to any person are outstanding, the special voting share will
automatically be redeemed for $0.001.
Holders of exchangeable shares are entitled at any time, upon delivery of a
certificate representing their exchangeable shares and a duly executed
retraction request, to require Newmont Canada to redeem their exchangeable
shares. The retraction price will be the amount per exchangeable share that a
holder of exchangeable shares is entitled to receive pursuant to the provisions
attached to the exchangeable shares on a retraction of an exchangeable share, to
be satisfied by the delivery of one share of our common stock, together with all
declared and unpaid dividends on the exchangeable shares, if any. Newmont Canada
must deliver all retraction requests to us (or Newmont Holdings ULC), whereupon
we (or Newmont Holdings ULC), instead of Newmont Canada, will have the right to
purchase for the retraction price the exchangeable shares that are the subject
of the request. If we do not exercise this right, Newmont Canada is required to
effect the redemption.
On or at any time after the seventh anniversary of the date on which the
exchangeable shares were first issued, subject to acceleration in some
circumstances, Newmont Canada is required to redeem all the outstanding
exchangeable shares. The redemption price will be the amount per exchangeable
share that a holder of exchangeable shares is entitled to receive pursuant to
the provisions of the exchangeable shares on a redemption of exchangeable
shares, to be satisfied by the delivery of one share of our common stock,
together with all declared and unpaid dividends, if any. In this event, we (or
Newmont Holdings ULC) will have the overriding right to acquire the outstanding
exchangeable shares in exchange for the redemption price on the redemption date.
If we exercise this right, Newmont Canada's obligation to redeem the
exchangeable shares will terminate.
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Listing
The exchangeable shares are listed on the Toronto Stock Exchange under the
symbol "NMC".
Anti-Takeover Provisions
Article Ninth of our certificate of incorporation and our rights agreement
may make it more difficult for various corporations, entities or persons to
acquire control of us or to remove management.
Approval of Various Mergers, Consolidations, Sales and Leases
Article Ninth of our certificate of incorporation requires us to get the
approval of the holders of 80% of all classes of our capital stock who are
entitled to vote in elections of directors, voting together as one class, to
enter into the following types of transactions:
- a merger or consolidation between us and another corporation that holds
10% or more of our outstanding shares;
- the sale or lease of all or a substantial part of our assets to another
corporation or entity that holds 10% or more of our outstanding shares;
or
- any sale or lease to us of assets worth more than $10 million in
exchange for our securities by another corporation or entity that holds
10% or more of our outstanding shares.
However, Article Ninth does not apply to any transaction if:
- our Board approves the transaction before the other corporation, person
or entity becomes a holder of 10% or more of our outstanding shares; or
- we or our subsidiaries own a majority of the outstanding voting shares
of the other corporation.
Article Ninth can only be altered or repealed with the approval of the
holders of 80% of all classes of our capital stock who are entitled to vote in
elections of directors, voting together as one class.
Stockholders Rights Plan
On January 30, 2002, our Board declared a dividend of one preferred share
purchase right for each outstanding share of our common stock. The dividend was
paid on February 15, 2002 to the stockholders of record on February 15, 2002.
The rights were issued pursuant to the terms of the Rights Agreement, dated as
of February 13, 2002 between Newmont and Mellon Investor Services LLC, as the
rights agent.
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Our Board has adopted this rights agreement to protect stockholders from
coercive or otherwise unfair takeover tactics. In general terms, it works by
imposing a significant penalty upon any person or group which acquires 15% or
more of our outstanding common stock without the approval of our Board of
Directors. The rights agreement should not interfere with any merger or other
business combination approved by our Board.
The following is a summary description of our rights agreement and should
be read together with the entire rights agreement, which is included as an
exhibit to the registration statement of which this prospectus forms a part.
The Rights. Our Board authorized the issuance of a right with respect to
each share of common stock outstanding on February 15, 2002. The rights
initially trade with, and are inseparable from, shares of our common stock. The
rights are evidenced only by certificates that represent shares of our common
stock. New rights will accompany any new shares of our common stock that we
issue after February 15, 2002 until the Distribution Date described below.
Exercise Price. Each right allows its holder to purchase from Newmont one
one-thousandth of a share of Series A Junior Participating Preferred Stock
("preferred share") for $100, once the rights become exercisable. This portion
of a preferred share will give the stockholder approximately the same dividend,
voting and liquidation rights as would one share of common stock. Prior to
exercise, the right does not give its holder any dividend, voting or liquidation
rights.
Exercisability. The rights are not exercisable until:
- 10 days after the public announcement that a person or group has
become an "Acquiring Person" by obtaining beneficial ownership of
15% or more of our outstanding common stock, or, if earlier, or
- 10 business days (or a later date determined by our Board before
any person or group becomes an Acquiring Person) after a person
or group begins a tender or exchange offer which, if completed,
would result in that person or group becoming an Acquiring
Person.
We refer to the date when the rights become exercisable as the
"Distribution Date." Until that date, the common stock certificates also
evidence the rights, and any transfer of shares of common stock constitutes a
transfer of rights. After that date, the rights will separate from the common
stock and be evidenced by book-entry credits or by rights certificates that we
will mail to all eligible holders of common stock. Any rights held by an
Acquiring Person are void and may not be exercised.
Our Board may reduce the threshold at which a person or group becomes an
Acquiring Person from 15% to not less than 10% of the outstanding common stock.
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Consequences of a Person or Group Becoming an Acquiring Person.
- Flip In. If a person or group becomes an Acquiring Person, all
holders of rights except the Acquiring Person may, for $100,
purchase shares of our common stock prior to the acquisition.
- Flip On. If we are later acquired in a merger of similar
transaction after the Distribution Date, all holders of rights
except the Acquiring Person may, for $100, purchase shares of the
acquiring corporation with a market value of $200 based on the
market price of the acquiring corporation's stock, prior to the
merger.
Preferred Share Provisions. Each one one-thousandth of a preferred share,
if issued:
- will not be redeemable;
- will entitle holders to quarterly dividend payments of $0.001 per
share, or an amount equal to the dividend paid on one share of
common stock, whichever is greater;
- will entitle holders upon liquidation either to receive $1.00 per
share or an amount equal to the payment made on one share of
common stock, whichever is greater;
- will have the same voting power as one share of common stock; and
- if shares of our common stock are exchanged by merger,
consolidation or a similar transaction, will entitle holders to a
per share payment equal to the payment made on one share of
common stock.
The value of one one-thousandth interest in a preferred share should
approximate the value of one share of common stock.
Expiration. The rights will expire on February 13, 2012.
Redemption. Our Board of Directors may redeem the rights for $0.001 per
right at any time before any person or group becomes an Acquiring Person. If our
Board redeems any rights, it must redeem all of the rights. Once the rights are
redeemed, the only right of the holders of rights will be to receive the
redemption price of $0.001 per right. The redemption price will be adjusted if
we have a stock split or stock dividends of our common stock.
Exchange. After a person or group becomes an Acquiring Person, but before
an Acquiring Person owns 50% or more of our outstanding common stock, our Board
may extinguish the rights by exchanging one share of common stock or an
equivalent security for each right, other than rights held by the Acquiring
Person.
Anti-Dilution Provisions. Our Board may adjust the purchase price of the
preferred shares, the number of preferred shares issuable and the number of
outstanding rights to prevent
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dilution that may occur from a stock dividend, a stock split or a
reclassification of the preferred shares or common stock. No adjustments to the
purchase price of less than 1% will be made.
Amendments. The terms of the rights agreement may be amended by our Board
without the consent of the holders of the rights. However, our Board may not
amend the rights agreement to lower the threshold at which a person or group
becomes an Acquiring Person to below 10% of our outstanding common stock. In
addition, the Board may not cause a person or group to become an Acquiring
Person by lowering this threshold below the percentage interest that the person
or group already owns. After a person or group becomes an Acquiring Person, our
Board may not amend the agreement in a way that adversely affects holders of the
rights.
U.S. FEDERAL INCOME TAX CONSIDERATIONS AS A
REAL PROPERTY HOLDING CORPORATION
We believe that we may be considered a U.S. real property holding
corporation within the meaning of the Internal Revenue Code of 1986, as amended,
or the Code, although we are still analyzing the impact of the acquisitions of
Franco-Nevada Mining Corporation Limited and Normandy Mining Limited. If we are
considered a U.S. real property holding corporation, even if you are not a U.S.
person as defined in the Code and lack other connections with the United States,
you may be subject to a tax on any gain realized on the disposition of shares of
our common stock acquired by you upon exercise of any Warrants if at the time of
the disposition our common stock is not regularly traded on an established
securities market. This tax, however, would not apply to a disposition of shares
held by you solely as a creditor. You also may be subject to a withholding tax
on the proceeds from the disposition of the shares of our common stock.
Currently, our common stock is regularly traded on an established securities
market and, therefore, the tax and the withholding tax described above would not
apply to a disposition of shares, except as provided below. The tax described
above would apply to the disposition by you of shares of our common stock even
though our common stock is regularly traded on an established securities market
if you are a non-U.S. person who actually or constructively beneficially owns
more than 5% of the total fair market value of all our outstanding common stock
at any time during the five year period immediately preceding the disposition.
The withholding tax described above, however, would not apply to the
disposition, except in certain circumstances.
We urge you to consult your own tax advisors regarding the U.S. federal tax
consequences of an investment in our common stock, as well as the tax
consequences under any state, local or foreign tax laws.
PLAN OF DISTRIBUTION
We are registering by this prospectus shares of our common stock (and
associated preferred stock purchase rights) for issuance to holders of the
Warrants described above upon exercise of those warrants as provided in the
relevant warrant agreements.
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LEGAL OPINION
White & Case LLP will issue for us an opinion about the legality of the
shares of common stock that may be offered by this prospectus.
EXPERTS
The financial statements of Newmont Mining Corporation incorporated in this
prospectus by reference to the Annual Report on Form 10-K/A for the year ended
December 31, 2002 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
The financial statements of Newmont Mining Corporation incorporated in this
prospectus by reference to the Annual Report on Form 10-K/A for the year ended
December 31, 2001 have been so incorporated in reliance on the report (which
contains an explanatory paragraph relating to various restatements described in
Note 23 to the financial statements) of PricewaterhouseCoopers LLP, independent
accountants, given on the authority of said firm as experts in auditing and
accounting.
The financial statements of Nusa Tengarra Partnership V.O.F., an equity
investee of Newmont, incorporated in this prospectus by reference to the Annual
Report on Form 10-K/A for the year ended December 31, 2002 have been so
incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
The financial statements of Nusa Tengarra Partnership V.O.F. incorporated
in this prospectus by reference to the Annual Report on Form 10-K/A for the year
ended December 31, 2001 have been so incorporated in reliance on the report
(which contains an explanatory paragraph relating to various restatements in
Note 16 to the financial statements) of PricewaterhouseCoopers LLP, independent
accountants, given on the authority of said firm as experts in auditing and
accounting.
The audited consolidated financial statements of Franco-Nevada Mining
Corporation Limited (now Newmont Mining Corporation of Canada Limited) as of
March 31, 2001 and 2000 and for each of the three years ended March 31, 2001,
incorporated in this prospectus by reference to the Current Report on Form 8-K/A
filed on April 15, 2003, have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
The financial statements of Normandy Mining Limited (now Newmont Australia
Limited) as of June 30, 2001 and 2000 and for the years then ended, incorporated
in this prospectus by reference to Amendment No. 2 to the Current Report on Form
8-K/A filed by Newmont Mining Corporation on April 15, 2003 have been audited by
Deloitte Touche Tohmatsu, independent auditors, as stated in their report (which
report expresses an unqualified opinion and includes an explanatory paragraph
referring to the restatement of the reconciliation to accounting principles
generally accepted in the United States of America in Note 40, as discussed in
Note 41), which is incorporated herein by reference, and have been so
incorporated
-25-
in reliance upon the report of such firm given upon their authority
as experts in accounting and auditing.
Behre Dolbear & Company, Inc., a mineral industry consulting firm,
performed an independent appraisal of goodwill assigned to our reporting units
in connection with the February 2002 acquisitions of Franco-Nevada Mining
Corporation Limited (now Newmont Mining Corporation of Canada Limited) and
Normandy Mining Limited (now Newmont Australia Limited). The financial
statements of Newmont incorporated in this prospectus by reference to the Annual
Report on Form 10-K/A for the year ended December 31, 2002 have been so
incorporated in reliance on the appraisal of Behre Dolbear & Company, Inc.,
given on the authority of said firm as experts in mining industry appraisals.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public from our
web site at http://www.newmont.com or from the SEC's web site at
http://www.sec.gov. The information on our web site is not incorporated by
reference into and is not made a part of this prospectus. You may also read and
copy any document we file at the SEC's public reference room in Washington, D.C.
Please call the SEC at 1-800-732-0330 for further information on the public
reference rooms.
The SEC allows us to "incorporate by reference" in this prospectus the
information in the documents that we file with it, which means that we can
disclose important information to you by referring you to those documents. The
information incorporated by reference is considered to be a part of this
prospectus, and information in documents that we file later with the SEC will
automatically update and supersede information contained in documents filed
earlier with the SEC or contained in this prospectus. We incorporate by
reference in this prospectus the documents listed below and any future filings
that we may make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the
Securities Exchange Act of 1934 until we sell all of the securities that may be
offered by this prospectus:
- Annual Report on Form 10-K for the year ended December 31, 2002 (as
amended by an Annual Report on Form 10-K/A filed on October 24, 2003);
- Annual Report on Form 10-K/A for the year ended December 31, 2001 filed
on March 20, 2003;
- Quarterly Reports on Form 10-Q for the quarters ended March 31, 2003
and June 20, 2003 (each as amended by Quarterly Reports on Form 10-Q/A
filed on October 24, 2003);
- Quarterly Reports on Form 10-Q/A for the quarters ended March 31, 2002,
June 30, 2002 and September 30, 2002 each filed on April 11, 2003;
- Current Reports on Form 8-K filed on March 28, 2003, April 22, 2003,
May 7, 2003 and July 31, 2003;
-26-
- Current Report on Form 8-K/A filed on April 15, 2003 amending Current
Report on Form 8-K filed on March 1, 2002 and subsequently amended on
April 16, 2002; and
- The description of our common stock contained in our registration
statement on Form 8-A for our common stock filed under the Securities
Exchange Act of 1934 including any amendment or report filed for the
purpose of updating that description.
You may request a copy of these documents at no cost to you, by writing or
telephoning us as follows:
Newmont Mining Corporation
1700 Lincoln Street
Denver, Colorado 80203
Attn: Office of the Secretary
(303) 863-7414
You should rely only on the information incorporated by reference or
provided in this prospectus or in any prospectus supplement. We have not
authorized anyone to provide you with different information. We are not making
an offer of the securities described in this prospectus in any state where the
offer is not permitted. You should not assume that the information in this
prospectus or any prospectus supplement is accurate as of any date other than
the date on the front of those documents.
-27-
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.*
SEC filing fee $32,713.14
Accounting fees and expenses $20,000.00
Legal fees and expenses $50,000.00
Transfer agent's fees $5,000.00
Stock exchange listing fees $17,500.00
Miscellaneous $4,786.86
--------------
Total $130,000.00
--------------------
*All estimates except for filing fee.
Item 15. Indemnification of Directors and Officers.
Article Tenth of Newmont's Certificate of Incorporation provides that its
directors shall be protected from personal liability, through indemnification or
otherwise, to the fullest extent permitted under the General Corporation Law of
the State of Delaware as from time to time in effect.
The By-Laws of Newmont provide that each person who at any time is or shall
have been a director or officer of Newmont, or is or shall have been serving
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise in any capacity at the request of Newmont, and his or her
heirs, executors and administrators, shall be indemnified by Newmont in
accordance with and to the full extent permitted by the General Corporation Law
of the State of Delaware. Article VI of the By-Laws of Newmont facilitates
enforcement of the right of directors and owners to be indemnified by
establishing such right as a contract right pursuant to which the person
entitled thereto may bring suit as if the indemnification provisions of the
By-Laws were set forth in a separate written contract between Newmont and the
director or officer.
Section 145 of the General Corporation Law of the State of Delaware
authorizes and empowers each Delaware corporation to indemnify its directors,
officers, employees and agents against liabilities incurred in connection with,
and related expenses resulting from, any claim, action or suit brought against
any such person as a result of his or her relationship with the corporation,
provided that such persons acted in good faith and in a manner such person
reasonably believed to be in, and not opposed to, the best interests of the
corporation in connection with the acts or events on which such claim, action or
suit is based. The finding of either civil or criminal liability on the part of
such person in connection with such acts or events is not necessarily
determinative of the question of whether such person has met the required
standard of conduct and is, accordingly,
II-1
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.
Item 16. Exhibits.
Exhibit
Number Description of Documents
------ ------------------------
3.1 Certificate of Incorporation of the Registrant. Incorporated by
reference to Appendix F to the Registrant's Registration
Statement on Form S-4 (File No. 333-76506), filed with the
Securities and Exchange Commission on January 10, 2002.
3.2 Certificate of Amendment to the Certificate of Incorporation of
the Registrant. Incorporated by reference to Exhibit 3.4 to the
Registrant's Registration Statement on Form 8-A (File No.
001-31240), relating to the registration of its common stock,
filed with the Securities and Exchange Commission on February 15,
2002.
3.3 By-Laws of the Registrant. Incorporated by reference to Exhibit
3(g) to the Registrant's Annual Report on form 10-K for the year
ended December 31, 2001.
3.4 Certificate of Elimination of Series A Junior Participating
Preferred Stock of the Registrant. Incorporated by reference to
Exhibit 3.2 to the Registrant's Registration Statement on Form
8-A (File No. 001-31240), relating to the registration of its
common stock, filed with the Securities and Exchange Commission
on February 15, 2002.
3.5 Certificate of Designations of Special Voting Stock. Incorporated
by reference to Exhibit 3.3 to the Registrant's Registration
Statement on Form 8-A (File No. 001-31240), relating to the
registration of its common stock, filed with the Securities and
Exchange Commission on February 15, 2002.
3.6 Certificate of Designations of Series A Junior Participating
Preferred Stock of the Registrant. Incorporated by reference to
Exhibit 3.1 to the Registrant's Registration Statement on Form
8-A (File No. 001-31240), relating to the registration of its
preferred stock purchase rights, filed with the Securities and
Exchange Commission on February 15, 2002.
3.7 Certificate of Designations of $3.25 Convertible Preferred Stock
of the Registrant. Incorporated by reference to Exhibit 3.6 to
the Registrant's Registration Statement on Form 8-A (File No.
001-31240), relating to the registration of its $3.25 convertible
preferred stock, filed with the Securities and Exchange
Commission on February 15, 2002 (which preferred stock was
redeemed in full on May 15, 2002).
4.1 Rights Agreement, dated as of February 13, 2002, between the
Registrant and Mellon Investor Services LLC (which includes the
form of Certificate of Designations of Series B Junior Preferred
Stock of the Registrant as Exhibit A, the form of Right
Certificate as Exhibit B and the Summary of Rights to Purchase
II-2
Preferred Shares as Exhibit C). Incorporated by reference to
Exhibit 4.1 to the Registrant's Registration Statement on Form
8-A (File No. 001-31240), relating to the registration of its
preferred stock purchase rights, filed with the Securities and
Exchange Commission on February 15, 2002.
5 Opinion of White & Case LLP.*
15 Letter Re Unaudited Interim Financial Information.*
23.1 Consent of PricewaterhouseCoopers LLP re: Annual Report on Form
10-K/A for the year ended December 31, 2002.
23.2 Consent of PricewaterhouseCoopers LLP re: Amendment to Annual
Report on Form 10-K/A for the year ended December 31, 2001 filed
on March 20, 2003.
23.3 Consent of PricewaterhouseCoopers LLP re: Current Report on Form
8-K/A filed on April 15, 2003
23.4 Consent of PricewaterhouseCoopers LLP re: Nusa Tengarra
Partnership V.O.F. - Annual Report on Form 10-K/A for the year
ended December 31, 2002.
23.5 Consent of PricewaterhouseCoopers LLP re: Nusa Tengarra
Partnership V.O.F. - Amendment to Annual Report on Form 10-K/A
for the year ended December 31, 2001 filed on March 20, 2003.
23.6 Consent of Deloitte Touche Tohmatsu.
23.7 Consent of White & Case LLP (included in Exhibit 5).*
23.8 Consent of Behre Dolbear & Company, Inc.
24.1 Power of Attorney of certain officers and directors.*
24.2 Power of Attorney of principal accounting officer.*
24.3 Power of Attorney of principal financial officer.*
-------------------
* Previously filed.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
II-3
(i) to include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement;
(2) that, for the purpose of determining any liability under the
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof;
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering; and
(4) that, for purposes of determining any liability under the
Securities Act of 1933, each filing of Newmont's annual report
pursuant to Section 13(a) or 15(d) of the 1934 Act that is
incorporated by reference in this registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant
II-4
to the foregoing provisions, or otherwise, the registrant has been advised that
in the opinion of the Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment to the Registration Statement on Form
S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Denver, State of Colorado, on the 27th day of October, 2003.
NEWMONT MINING CORPORATION
By /s/ Britt D. Banks
---------------------------------
Britt D. Banks
Vice President, General Counsel
and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- -------- ----
----------------------
Glen A. Barton Director October 27, 2003
*
----------------------
Vincent A. Calarco Director October 27, 2003
*
----------------------
James T. Curry, Jr. Director October 27, 2003
*
----------------------
Joseph P. Flannery Director October 27, 2003
*
----------------------
Michael S. Hamson Director October 27, 2003
----------------------
Leo I. Higdon, Jr. Director October 27, 2003
*
----------------------
Pierre Lassonde President and Director October 27, 2003
*
----------------------
Robert J. Miller Director October 27, 2003
* Chairman of the Board and Chief
---------------------- Executive Officer
Wayne W. Murdy (Principal Executive Officer) October 27, 2003
*
----------------------
Robin A. Plumbridge Director October 27, 2003
*
----------------------
John B. Prescott Director October 27, 2003
*
----------------------
Michael K. Reilly Director October 27, 2003
*
----------------------
Seymour Schulich Director October 27, 2003
*
----------------------
James V. Taranik Director October 27, 2003
* Senior Vice President and
---------------------- Chief Financial Officer
Bruce D. Hansen (Principal Financial Officer) October 27, 2003
* Vice President and Global Controller
---------------------- (Principal Accounting Officer) October 27, 2003
David W. Peat
*By /s/ Britt D. Banks
-------------------------
Britt D. Banks,
as Attorney-in-fact
EXHIBIT INDEX
Exhibit
Number Description of Documents
-------- ------------------------
3.1 Certificate of Incorporation of the Registrant. Incorporated by
reference to Appendix F to the Registrant's Registration
Statement on Form S-4 (File No. 333-76506), filed with the
Securities and Exchange Commission on January 10, 2002.
3.2 Certificate of Amendment to the Certificate of Incorporation of
the Registrant. Incorporated by reference to Exhibit 3.4 to the
Registrant's Registration Statement on Form 8-A (File No.
001-31240), relating to the registration of its common stock,
filed with the Securities and Exchange Commission on February 15,
2002.
3.3 By-Laws of the Registrant. Incorporated by reference to Exhibit
3(g) to the Registrant's Annual Report on form 10-K for the year
ended December 31, 2001.
3.4 Certificate of Elimination of Series A Junior Participating
Preferred Stock of the Registrant. Incorporated by reference to
Exhibit 3.2 to the Registrant's Registration Statement on Form
8-A (File No. 001-31240), relating to the registration of its
common stock, filed with the Securities and Exchange Commission
on February 15, 2002.
3.5 Certificate of Designations of Special Voting Stock. Incorporated
by reference to Exhibit 3.3 to the Registrant's Registration
Statement on Form 8-A (File No. 001-31240), relating to the
registration of its common stock, filed with the Securities and
Exchange Commission on February 15, 2002.
3.6 Certificate of Designations of Series A Junior Participating
Preferred Stock of the Registrant. Incorporated by reference to
Exhibit 3.1 to the Registrant's Registration Statement on Form
8-A (File No. 001-31240), relating to the registration of its
preferred stock purchase rights, filed with the Securities and
Exchange Commission on February 15, 2002.
3.7 Certificate of Designations of $3.25 Convertible Preferred Stock
of the Registrant. Incorporated by reference to Exhibit 3.6 to
the Registrant's Registration Statement on Form 8-A (File No.
001-31240), relating to the registration of its $3.25 convertible
preferred stock, filed with the Securities and Exchange
Commission on February 15, 2002 (which preferred stock was
redeemed in full on May 15, 2002).
4.1 Rights Agreement, dated as of February 13, 2002, between the
Registrant and Mellon Investor Services LLC (which includes the
form of Certificate of Designations of Series B Junior Preferred
Stock of the Registrant as Exhibit A, the form of Right
Certificate as Exhibit B and the Summary of Rights to Purchase
Preferred Shares as Exhibit C). Incorporated by reference to
Exhibit 4.1 to the Registrant's Registration Statement on Form
8-A (File No. 001-31240), relating to the registration of its
preferred stock purchase rights, filed with the Securities and
Exchange Commission on February 15, 2002.
5 Opinion of White & Case LLP.*
15 Letter Re Unaudited Interim Financial Information.*
23.1 Consent of PricewaterhouseCoopers LLP re: Annual Report on Form
10-K/A for the year ended December 31, 2002.
23.2 Consent of PricewaterhouseCoopers LLP re: Amendment to Annual
Report on Form 10-K/A for the year ended December 31, 2001 filed
on March 20, 2003.
23.3 Consent of PricewaterhouseCoopers LLP re: Current Report on Form
8-K/A filed on April 15, 2003
23.4 Consent of PricewaterhouseCoopers LLP re: Nusa Tengarra
Partnership V.O.F. - Annual Report on Form 10-K/A for the year
ended December 31, 2002.
23.5 Consent of PricewaterhouseCoopers LLP re: Nusa Tengarra
Partnership V.O.F. - Amendment to Annual Report on Form 10-K/A
for the year ended December 31, 2001 filed on March 20, 2003.
23.6 Consent of Deloitte Touche Tohmatsu.
23.7 Consent of White & Case LLP (included in Exhibit 5).*
23.8 Consent of Behre Dolbear & Company, Inc.
24.1 Power of Attorney of certain officers and directors.*
24.2 Power of Attorney of principal accounting officer.*
24.3 Power of Attorney of principal financial officer.*
-------------------
* Previously filed.