SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A/A
AMENDMENT NO. 1
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
NEWMONT MINING CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 13-2526632
(State of incorporation) (IRS employer identification no.)
1700 Lincoln Street
Denver, Colorado 80203
(Address of principal executive offices) (Zip Code)
If this form relates to the If this form relates to the
registration of a class of securities registration of a class of securities
pursuant to Section 12(b) of the pursuant to Section 12(g) of the
Exchange Act and is effective Exchange Act and is effective
pursuant to General Instruction pursuant to General Instruction
A.(c), please check the following A.(d), please check the following
box. [X] box. [ ]
Securities Act registration statement file number to which this form relates:
N/A
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
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Preferred Share Purchase Rights New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
NONE
(Title of Class)
In connection with the execution of the Agreement and Plan of Merger, dated
as of January 8, 2002, by and among Newmont Mining Corporation, a Delaware
corporation ("the Company"), Delta Holdco Corp. and Delta Acquisitionco Corp.,
and in connection with its proposed acquisition of Normandy Mining Limited, an
Australian company, and Franco-Nevada Mining Corporation Limited, a Canadian
corporation, the Company hereby amends and supplements Items 1 and 2 of its
Registration Statement on Form 8-A (File No. 001-01153) filed with the
Securities and Exchange Commission (the "Commission") on September 6, 2000.
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
In connection with the execution of the Agreement and Plan of Merger, dated
as of January 8, 2002, by and among the Company, Delta Holdco Corp., a Delaware
corporation and a direct, wholly owned subsidiary of the Company ("Holdco") and
Delta Acquisitionco Corp., a Delaware corporation and direct, wholly-owned
subsidiary of Holdco ("Acquisitionco"), we have amended our rights agreement so
that our proposed merger with Acquisitionco does not cause the rights to
separate from our common shares or permit our stockholders to exercise the
rights. A complete description of the amendment to our rights agreement is set
forth below.
AMENDMENT TO THE RIGHTS AGREEMENT. On January 8, 2002, the Company and
Mellon Investor Services LLC (as successor to ChaseMellon Shareholder Services
LLC), as rights agent (the "Rights Agent"), entered into Amendment No. 1. to the
Rights Agreement, dated as of August 31, 2000, between the Company and the
Rights Agent. The Amendment provides, among other things, that neither Holdco
nor Acquisitionco will become an Acquiring Person as a result of the execution
and delivery of the Merger Agreement, the conversion of common shares of the
Company into shares of Holdco common stock in accordance with Section 2.1(a) of
the Merger Agreement or the consummation of the Merger.
In addition, the Amendment amends Sections 1(u) and 3(a) of the Rights
Agreement to provide that notwithstanding any other provision of the Rights
Agreement, (i) a Shares Acquisition Date will not occur or be deemed to occur as
a result of the execution and delivery of the Merger Agreement, the conversion
of common shares of the Company into shares of Holdco common stock in accordance
with Section 2.1(a) of the Merger Agreement or the consummation of the Merger,
and (ii) a Distribution Date will not occur or be deemed to occur as a result of
the execution and delivery of the Merger Agreement, the conversion of common
shares of the Company into shares of Holdco common stock in accordance with
Section 2.1(a) of the Merger Agreement or the consummation of the Merger. The
Amendment also provides that the Rights will cease to be exercisable immediately
prior to the effective time of the Merger and that nothing in the Rights
Agreement will be construed to give any holder of Rights or any other Person
(each as defined in the Rights Agreement) any legal or equitable rights, remedy
or claim under the Rights Agreement in connection with any transactions
contemplated by the Merger Agreement.
The Amendment is attached hereto as an exhibit and is incorporated herein
by reference. The foregoing summary of the Amendment is qualified in its
entirety by reference to the full text of such exhibit.
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ITEM 2. EXHIBITS.
4.2 Amendment No. 1, dated as of January 8, 2002, to the Rights Agreement,
dated as of August 31, 2000, between the Company and Mellon Investor
Services LLC (as successor to ChaseMellon Shareholder Services LLC).
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this amendment to the
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized.
Dated: February 4, 2002
NEWMONT MINING CORPORATION
By: /s/ Britt D. Banks
--------------------------------------------
Name: Britt D. Banks
Title: Vice President, General Counsel
and Secretary
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EXHIBIT INDEX
4.2 Amendment No. 1, dated as of January 8, 2002, to the Rights Agreement,
dated as of August 31, 2000, between the Company and Mellon Investor
Services LLC (as successor to ChaseMellon Shareholder Services LLC).
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EXHIBIT 4.2
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
AMENDMENT No. 1, dated as of January 8, 2002, to the Rights Agreement
(the "Rights Agreement"), dated as of August 31, 2000, between Newmont Mining
Corporation, a Delaware corporation (the "Company") and Mellon Investor Services
LLC, a New Jersey limited liability company (as successor to ChaseMellon
Shareholder Services LLC), as Rights Agent (the "Rights Agent").
WHEREAS, the Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
may from time to time supplement or amend the Rights Agreement in accordance
with the provisions of Section 27 thereof; and
WHEREAS, the Company intends to enter into an Agreement and Plan of
Merger (as it may be amended or supplemented from time to time, the "Merger
Agreement"), by and among the Company, Delta Holdco Corp., a Delaware
corporation and a wholly owned subsidiary of the Company ("Holdco"), and Delta
Acquisitionco Corp., a Delaware corporation and a wholly owned subsidiary of
Holdco ("Acquisitionco"); and
WHEREAS, the Board of Directors has (i) determined that the Merger
Agreement and the transactions contemplated thereby are advisable, fair to and
in the best interests of the Company and its stockholders, (ii) approved the
Merger Agreement and (iii) recommended that the Merger Agreement be adopted by
the holders of Newmont Common Stock; and
WHEREAS, the Board of Directors has found that it is in the best
interests of the Company and its stockholders, and has deemed it necessary and
desirable, to amend the Rights Agreement to exempt the Merger Agreement and the
transactions contemplated thereby from the application of the Rights Agreement.
NOW, THEREFORE, the Company hereby amends the Rights Agreement as
follows:
1. Section 1(a) of the Rights Agreement is hereby modified, amended
and restated in its entirety as follows:
"Acquiring Person" shall mean any Person who or
which, together with all Affiliates and Associates of such Person,
shall be the Beneficial Owner of 15% or more of the Common Shares of
the Company then outstanding, but shall not include the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or
any Subsidiary of the Company, or any entity holding
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Common Shares for or pursuant to the terms of any such plan.
Notwithstanding the foregoing, no Person shall become an "Acquiring
Person" as the result of an acquisition of Common Shares by the
Company which, by reducing the number of Common Shares of the Company
outstanding, increases the proportionate number of Common Shares of
the Company beneficially owned by such Person to 15% or more of the
Common Shares of the Company then outstanding; provided, however,
that, if a Person shall become the Beneficial Owner of 15% or more of
the Common Shares of the Company then outstanding by reason of share
purchases by the Company and shall, after such share purchases by the
Company, become the Beneficial Owner of any additional Common Shares
of the Company, then such Person shall be deemed to be an "Acquiring
Person." Notwithstanding the foregoing, (i) if the Board of Directors
of the Company determines in good faith that a Person who would
otherwise be an "Acquiring Person," as defined pursuant to the
foregoing provisions of this paragraph (a), has become such
inadvertently, and such Person divests as promptly as practicable a
sufficient number of Common Shares so that such Person would no longer
be an "Acquiring Person," as defined pursuant to the foregoing
provisions of this paragraph (a), then such Person shall not be deemed
to be an "Acquiring Person" for any purposes of this Agreement and
(ii) neither Delta Holdco Corp., a Delaware corporation and direct,
wholly owned subsidiary of the Company ("Holdco"), or Delta
Acquisitionco Corp., a Delaware corporation and direct wholly owned
subsidiary of Holdco ("Acquisitionco"), shall be deemed to be an
Acquiring Person by virtue of: (A) the execution and delivery of the
Agreement and Plan of Merger (as it may be amended or supplemented
from time to time, the "Merger Agreement") to be entered into by and
among the Company, Holdco and Acquisitionco, (B) the conversion of
Common Shares into shares of Holdco Common Stock (as defined in the
Merger Agreement) in accordance with Section 2.1(a) of the Merger
Agreement, or (C) the consummation of the Merger (as defined in the
Merger Agreement) (each of the events set forth in foregoing clauses
(A) to (C), an "Exempt Event").
2. Section 1(u) of the Rights Agreement is hereby modified and amended
by adding the following sentence at the end thereof:
"No Exempt Event shall cause a Shares Acquisition Date."
3. Section 3(a) of the Rights Agreement is hereby modified and amended
by adding the following sentence at the end thereof:
"Notwithstanding the foregoing, no Exempt Event shall cause a
Distribution Date."
4. Section 7(a) of the Rights Agreement is hereby modified, amended
and restated in its entirety as follows:
The registered holder of any Right Certificate may
exercise the Rights evidenced thereby (except as
otherwise provided herein), in whole or in
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part, at any time after the Distribution Date, upon
surrender of the Right Certificate, with the form of
election to purchase on the reverse side thereof
duly executed, to the Rights Agent at the office of
the Rights Agent designated for such purpose,
together with payment of the Purchase Price for each
one one-thousandth of a Preferred Share as to which
the Rights are exercised, at or prior to the
earliest of (i) the time immediately prior to the
consummation of the Merger, (ii) the Close of
Business on September 11, 2010 (the "Final
Expiration Date"), (iii) the time at which the
Rights are redeemed as provided in Section 23 hereof
(the "Redemption Date"), or (iv) the time at which
such Rights are exchanged as provided in Section 24
hereof.
5. Section 29 of the Rights Agreement is hereby modified and amended
to add the following sentence at the end thereof:
"Notwithstanding the foregoing, nothing in this Agreement shall be
construed to give any holder of Rights or any other Person any legal
or equitable rights, remedy or claim under this Agreement in
connection with any transactions contemplated by the Merger
Agreement."
6. The Company shall notify the Rights Agent, by means of written
communication, of the consummation of the Merger as soon as practicable after
the occurrence thereof.
7. This Amendment shall be deemed to be a contract made under the laws
of the State of Delaware and for all purposes shall be governed by and construed
in accordance with the laws of such State applicable to contracts to be made and
performed entirely within such state; provided, however, that all provisions
regarding the rights, duties and obligations of the Rights Agent shall be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed entirely within such State.
8. If any term, provision, covenant or restriction of the Amendment is
held by a court of competent jurisdiction or other authority to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Amendment, and of the Rights Agreement, shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
9. Except as otherwise expressly provided herein, or unless the
context otherwise requires, all terms used herein have the meanings assigned to
them in the Rights Agreement.
10. Except as amended hereby, the Rights Agreement shall remain in
full force and effect and is hereby ratified, adopted and confirmed in all
respects. All references to the Rights Agreement in any other agreement or
document shall hereafter be deemed to refer to the Rights Agreement as amended
hereby.
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11. This Amendment may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
* * *
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Amendment has been duly executed by the
Company and the Rights Agent as of the day and year first written above.
Attest: NEWMONT MINING CORPORATION
By /s/ Ardis Young By /s/ Britt D. Banks
-------------------------------- --------------------------------
Name: Ardis Young Name: Britt D. Banks
Title: Assistant Secretary Title: Vice President, General
Counsel and Secretary
MELLON INVESTOR SERVICES LLC
Attest: (As Rights Agent)
By /s/ James E. Hagan By /s/ Cynthia Gonzalez
-------------------------------- --------------------------------
Name: James E. Hagan Name: Cynthia Gonzalez
Title: Vice President Title: Client Service Manager
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OFFICER'S CERTIFICATE
This certificate is delivered to Mellon Investor Services LLC
(as successor to ChaseMellon Shareholder Services LLC), in connection with that
certain Rights Agreement, dated as of August 31, 2000 (the "Rights Agreement"),
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between Newmont Mining Corporation (the "Company"), and ChaseMellon Shareholder
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Services LLC (the "Rights Agent"), in accordance with Section 27 of the Rights
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Agreement. Pursuant to Section 27 of the Rights Agreement, the Rights Agent must
execute the attached Amendment No. 1 to Rights Agreement upon the delivery of
this officer's certificate stating that such Amendment No. 1 to Rights Agreement
is in compliance with the terms of Section 27 of the Rights Agreement.
The undersigned hereby certifies that the attached Amendment
No. 1 to Rights Agreement was duly and validly authorized and adopted by the
Board of Directors of the Company and said Amendment No. 1 to Rights Agreement
is in compliance with Section 27 of the Rights Agreement.
In witness whereof, the undersigned has executed this
Certificate as of this 8th day of January, 2002.
NEWMONT MINING CORPORATION
By: /s/ Britt D. Banks
--------------------------------
Name: Britt D. Banks
Title: Vice President, General
Counsel and Secretary
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