Exhibit 5.1
[Letterhead of Morris, Nichols, Arsht & Tunnell]
January 30, 2002
Newmont Mining Corporation
1700 Lincoln Street
Denver, CO 80203
Re: Registration Statement on Form S-4 of Delta Holdco Corp.
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Ladies and Gentlemen:
You have requested our opinion with respect to certain matters
of Delaware law in connection with the above-captioned Registration Statement on
Form S-4 to be filed by Delta Holdco Corp. ("Holdco"), a Delaware corporation
and direct, wholly owned subsidiary of Newmont Mining Corporation, a Delaware
corporation ("Newmont"), with the United States Securities and Exchange
Commission (the "Registration Statement") with respect to the shares of $3.25
Convertible Preferred Stock, par value $5.00 per share, of Holdco (the "Holdco
Preferred Stock"), proposed to be issued by Holdco in connection with the
proposed merger (the "Merger") of Delta Acquisitionco Corp. ("Acquisitionco"), a
Delaware corporation and wholly owned subsidiary of Holdco, with and into
Newmont upon the terms and subject to the conditions of the Agreement and Plan
of Merger (the "Merger Agreement") dated as of January 8, 2002, by and among
Newmont, Acquisitionco and Holdco.
For purposes of rendering the opinion expressed herein, we
have examined and relied upon the following documents in the forms provided to
us by or on behalf of Newmont: the certificate of incorporation of Newmont, as
amended to date; the current Bylaws of Newmont; the certificate of incorporation
of Holdco, as amended to date (the "Holdco Certificate of Incorporation"); the
form of Certificate of Designations of $3.25 Convertible Preferred Stock (the
"Certificate of Designations") to be filed with the Secretary of State of the
State of Delaware (the "Secretary of State"); the current Bylaws of Holdco; and
the Merger Agreement. We have further assumed for purposes of this opinion: (i)
the due incorporation, organization, valid existence and good standing of each
entity that is a party to the documents reviewed by us under the laws of the
State of Delaware; (ii) that each party to the Merger Agreement has the
corporate power and authority to execute, deliver and perform its obligations
under the Merger Agreement; (iii) that the shares of $3.25 Convertible Preferred
Stock, par value $5.00 per share, of Newmont that are issued and outstanding
immediately prior to the Effective Time (as such term is defined in the Merger
Agreement) will be duly authorized, validly issued, fully paid and
nonassessable;
Newmont Mining Corporation
January 30, 2002
Page 2
(iv) the Holdco Certificate of Incorporation was duly authorized by all
necessary action; (v) that the Certificate of Designations, in the form provided
to us, has been, or will, prior to the filing of the certificate of merger with
respect to the Merger with the Secretary of State, as contemplated by the Merger
Agreement, be duly authorized by all necessary action and executed, acknowledged
and duly filed with the Secretary of State and has or will, prior to the filing
of the certificate of merger with the Secretary of State, become effective; (vi)
that the Merger Agreement has been, or will, prior to the filing of a
certificate of merger with respect to the Merger with the Secretary of State as
contemplated by the Merger Agreement, be (A) duly authorized by all necessary
action and executed and delivered by each party thereto and (B) duly certified
and acknowledged by Newmont and Acquisitionco; (vii) a certificate of merger
with respect to the Merger, in proper form, will be duly filed with the
Secretary of State and will become effective prior to the issuance of the Holdco
Preferred Stock; (viii) that upon the effectiveness of the Merger there will be
a sufficient number of authorized but unissued shares of Holdco Preferred Stock
to satisfy the obligations of Holdco, as provided in the Merger Agreement, to
issue shares of Holdco Preferred Stock in the Merger and that none of such
shares of Holdco Preferred Stock will be subscribed for or otherwise committed
to be issued; (ix) immediately following the Effective Time of the Merger, the
name of Holdco will be changed to "Newmont Mining Corporation" by the filing of
a certificate of amendment to the Holdco Certificate of Incorporation, in proper
form, which amendment will have been duly authorized by all necessary action by
Holdco; and (x) that, upon consummation of the Merger, the certificates
representing the Holdco Preferred Stock will contain the information required by
Section 151(f) of the General Corporation Law of the State of Delaware. No
opinion is expressed with respect to the requirements of, or compliance with,
federal or state securities or blue sky laws. We have not reviewed any documents
other than those identified above in connection with this opinion, and we have
assumed that there are no other documents that are contrary to or inconsistent
with the opinions expressed herein. As to any fact material to our opinion,
other than those assumed, we have relied without independent investigation on
the above-referenced documents and on the accuracy, as of the date hereof, of
the matters therein contained.
Based upon and subject to the foregoing, and limited in all
respects to matters of Delaware law, it is our opinion that the shares of Holdco
Preferred Stock being registered under the Registration Statement, when issued
in connection with the Merger as contemplated by the Merger Agreement, will be
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5
to the Registration Statement and to the reference to our firm under the heading
"Legal Matters" in the Prospectus forming a part thereof. In giving this
consent, we do not admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act or the rules and regulations of
the Commission.
Newmont Mining Corporation
January 30, 2002
Page 3
The opinion is limited to the specific issues addressed
herein, and no opinion may be inferred or implied beyond that expressly stated
herein. We assume no obligation to revise or supplement this opinion should the
applicable law be changed by legislative action, judicial decision or otherwise
after the date of this opinion.
This opinion is furnished to you in connection with your
filing of the Registration Statement and, except as consented to, supra, is not
to be used, circulated, quoted or otherwise relied upon for any other purpose.
Very truly yours,
/s/ Morris, Nichols, Arsht & Tunnell