SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
HOMESTAKE MINING COMPANY
(Exact Name of Registrant as Specified in Charter)
Delaware 1-8736 94-2934609
(State of (Commission File (I.R.S. Employer
incorporation) Number) Identification No.)
650 California 94108-2788
Street (Zip Code)
San Francisco,
California
(Address of
principal executive
office)
(415) 981-8150
(Registrant's telephone
number, including area
code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on
to be so registered which
each class is to be
registered
None
If this Form relates to the registration of a class of debt
securities and is effective upon filing pursuant to General
Instruction A.(c)(1), please check the following box. [ ]
If this Form relates to the registration of a class of debt
securities and is to become effective simultaneously with the
effectiveness of a concurrent registration statement under the
Securities Act of 1933 pursuant to General Instruction A.(c)(2),
please check the following box. [ ]
Securities to be registered pursuant to Section 12(g) of the Act:
$150,000,000 5-1/2% Convertible Subordinated Notes due 2000
(Title of class)
(Title of class)
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Item 1. Description of Registrant's Securities to be
Registered.
The following description of the $150,000,000 5-1/2%
Convertible Subordinated Notes due 2000 ("Notes") of Homestake
Mining Company (the "Company") does not purport to be complete
and is subject to, and is qualified in its entirety by reference
to, the detailed provisions of the Notes and the Indenture
("Indenture") dated as of June 23, 1993 between the Company and
The Chase Manhattan Bank, Trustee (the "Trustee"). A copy of the
Indenture is incorporated by reference in this registration
statement. Wherever particular defined terms of the Indenture
are referred to (including the Notes and the various forms
thereof), such defined terms are incorporated herein by
reference.
GENERAL
The Notes were issued on June 23, 1993 and will mature on
June 23, 2000. The Notes bear interest at the rate of 5 1/2% per
annum, payable semi-annually in arrears on June 23 and December
23 of each year. (Section 301 of the Indenture)
The Notes are unsecured obligations of the Company and are
subordinated to all present and future Senior Debt (as defined
below) of the Company. Neither the Notes nor the Indenture
limits or restricts the amount of or the terms and conditions of
other indebtedness which may be incurred or issued by the Company
or contains any financial or similar covenants of, or
restrictions on, the Company. (Articles Eleven and Fourteen of
the Indenture)
FORM AND DENOMINATION
The Notes were offered (i) in offshore transactions pursuant
to Regulation S and (ii) within the United States in reliance on
Rule 144A. The Notes sold in offshore transactions pursuant to
Regulation S may be held in bearer form, with interest coupons
("Bearer Notes"), or in definitive, registered form.
Each Bearer Note carries the following legend: "Any United
States person who holds this obligation will be subject to
limitations under the United States income tax laws, including
the limitations provided in Sections 165(j) and 1287(a) of the
Internal Revenue Code." Those sections provide that a U.S.
taxpayer who holds Bearer Notes, with certain exceptions, will
not be entitled to deduct loss on the Bearer Notes and will not
be entitled to capital gains treatment that might otherwise be
applicable to any gain on any sale, exchange, redemption or other
disposition of Bearer Notes. (Section 202(a) of the Indenture)
The Notes that were offered in the United States in reliance
on Rule 144A may be held only (i) in definitive, registered form
without interest coupons, in denominations of U.S.$5,000 or
integral multiples thereof, or (ii) through the facilities of The
Depository Trust Company ("DTC"), in the form of a Global
Registered Note without interest coupons. Owners of beneficial
interests in any Global Registered Note hold such interest
pursuant to the procedures and
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practices of DTC and must exercise
any rights (including any right to convert, exchange or require
repurchase of their interests) in accordance with those
procedures and practices. Such beneficial owners are not Note
holders ("Holders"), and will not be entitled to any rights under
any Note or the Indenture, with respect to any Global Registered
Note. The Company and the Trustee, and any of their respective
agents may treat DTC as the Holder and owner of any Global
Registered Note. Beneficial interests in a Global Registered
Note may be exchanged for Notes in definitive, registered form
without interest coupons, in the denominations referred to above
and vice versa, as provided in the Indenture. (Articles Two and
Three of the Indenture)
SUBORDINATION
The payment of the principal of and interest on the Notes
is, to the extent set forth in the Indenture, subordinated in
right of payment to the prior payment in full of all Senior Debt.
Upon any payment or distribution of assets to creditors upon any
liquidation, dissolution, winding up, reorganization, assignment
for the benefit of creditors, marshalling of assets or any
bankruptcy, insolvency or similar proceedings of the Company, the
holders of all Senior Debt will first be entitled to receive
payment in full of all amounts due or to become due thereon
before the Holders of the Notes will be entitled to receive any
payment. In the event of the acceleration of the maturity of any
Notes, the holders of all Senior Debt will first be entitled to
receive payment in full of all amounts due or to become due
thereon before the Holders of the Notes will be entitled to
receive any payment. No payments on the Notes may be made if
there shall have occurred and be continuing a default in any
payment with respect to Senior Debt, or an event of default with
respect to any Senior Debt permitting the holders thereof to
accelerate the maturity thereof. (Sections 1401, 1402 and 1403 of
the Indenture)
"Senior Debt" is defined to mean all amounts owing with
respect to the following, whether outstanding at the date of
execution of the Indenture or thereafter incurred or created:
(a) indebtedness of the Company for money borrowed or evidenced
by a note or similar instrument or written agreement given in
connection with the acquisition of any businesses, properties or
assets, including securities, (b) indebtedness of the Company to
banks or financial institutions evidenced by notes or other
written obligations, (c) indebtedness of the Company evidenced by
notes, debentures, bonds or other securities issued under the
provisions of an indenture or similar instrument,
(d) indebtedness of others of the kinds described in the
preceding clauses (a), (b), and (c) that the Company has assumed,
guaranteed or otherwise assured the payment thereof, directly or
indirectly, (e) obligations of the Company as lessee under leases
required to be capitalized on the balance sheet of the lessee
under United States generally accepted accounting principles and
(f) deferrals, renewals, extensions and refundings of, or bonds,
debentures, notes or other evidences of indebtedness issued in
exchange for, the indebtedness described in the preceding clauses
(a) through (e) whether or not there is any notice to or consent
of the Holders of Notes; except (i) indebtedness and advances
among the Company and its direct and indirect Subsidiaries, and
(ii) any particular indebtedness, deferral, renewal, extension or
refunding, if it is expressly stated in the governing terms, or
in the assumption or guarantee, thereof that the indebtedness
involved is not Senior Debt. (Section 101 of the Indenture)
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By reason of such subordination, in the event of insolvency,
Holders of the Notes may recover less, ratably, than holders of
Senior Debt and other creditors of the Company. Because the
Company's principal operations are conducted through
subsidiaries, the rights of its creditors, including the Holders
of the Notes, to participate in the assets of any subsidiary upon
the subsidiary's liquidation or reorganization will be subject to
the claims of the subsidiary's creditors, which will take
priority except to the extent that the Company may itself be a
creditor with recognized claims against the subsidiary. As of
November 22, 1996, virtually all of the Company's consolidated
debt other than the Notes was at the subsidiary level. The
Indenture does not prohibit or limit the incurrence of Senior
Debt.
CONVERSION RIGHTS
Each Note will be convertible into Common Stock at the
Conversion Rate at any time on or after the receipt of definitive
Notes (see "Form and Denomination" above) and prior to maturity,
unless previously redeemed or repurchased. The right to convert
Notes called for redemption will terminate at the close of
business on the Redemption Date and will be lost if not exercised
prior to that time. If a Holder exercises his right to require
the Company to repurchase Notes upon the occurrence of a Change
in Control (defined below), such Holder's right to convert such
Notes will terminate at the close of business on the fifth
Trading Day prior to the Repurchase Date and will be lost if not
exercised prior to that time. See "Certain Rights to Require
Purchase of Notes" below. (Sections 1301 and 1502 of the
Indenture)
As of November 22, 1996, the Conversion Rate is 43.36 shares
of Common Stock per $1,000 principal amount of Notes (equivalent
to a conversion price of approximately $23.06 per share), subject
to adjustment in certain events. On November 22, 1996, the last
reported sale price for the Company's Common Stock as reported on
the New York Stock Exchange was $15.125 per share.
The Conversion Rate is subject to adjustment in certain
events, including (a) the declaration and payment of dividends
and other distributions in Common Stock on any class of capital
stock of the Company, (b) the issuance to all holders of Common
Stock of rights or warrants entitling them to subscribe for or
purchase Common Stock at less than the current market price
(determined as provided in the Indenture) on the record date for
such issuance, (c) subdivisions, combinations and
reclassifications of Common Stock, (d) the distribution to all
holders of Common Stock of evidences of indebtedness of the
Company or other assets (including securities, but excluding
those dividends, rights, warrants and distributions referred to
above and dividends and distributions paid exclusively in cash),
(e) distributions (other than quarterly dividends declared or
paid in accordance with the Company's practice as established
from time to time) consisting exclusively of cash (excluding any
cash portion of distributions referred to in (d) above or cash
distributed upon a merger or consolidation to which the
immediately succeeding paragraph applies) to all holders of
Common Stock in an aggregate amount that, combined together with
(i) all other such all-cash distributions (other than quarterly
dividends declared or paid in accordance with the Company's
practice as established from time to time) made within the
preceding 12 months in respect of which no adjustment has been
made and (ii) any cash and the fair market value of other
consideration payable in respect of any tender offers by the
Company or
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any of its Subsidiaries for Common Stock concluded
within the preceding 12 months in respect of which no adjustment
has been made, exceeds 10% of the Company's market capitalization
(being the product of the then current market price of the Common
Stock times the number of shares of Common Stock then
outstanding) on the record date for such distribution, and (f)
the purchase of Common Stock pursuant to a tender offer made by
the Company or any of its Subsidiaries which involves an
aggregate consideration that, together with (i) any cash and the
fair market value of any other consideration payable in any other
tender offer by the Company or any of its Subsidiaries for Common
Stock expiring within the 12 months preceding such tender offer
in respect of which no adjustment has been made and (ii) the
aggregate amount of any such all-cash distributions (other than
quarterly dividends declared or paid in accordance with the
Company's practice as established from time to time) referred to
in (e) above to all holders of Common Stock within the 12 months
preceding the expiration of such tender offer in respect of which
no adjustments have been made, exceeds 10% of the Company's
market capitalization on the expiration of such tender offer. In
addition to the foregoing adjustments, the Company will be
permitted to make such increases in the Conversion Rate, for the
remaining term of the Notes or any shorter term, as it considers
to be advisable in order that any event treated for United States
federal income tax purposes as a dividend of stock or stock
rights will not be taxable to the holders of the Common Stock.
No adjustment in the Conversion Rate will be made until such
adjustment would require an increase or decrease of at least 1%
of such rate, provided that any adjustment that would otherwise
be made will be carried forward and taken into account in the
computation of any subsequent adjustment. (Section 1304 of the
Indenture)
In case of certain consolidations or mergers to which the
Company is a party or the sale or transfer of all or
substantially all of the assets of the Company, each Note then
Outstanding will, without the consent of any Holders of Notes,
become convertible only into the kind and amount of securities,
cash and other property receivable upon the consolidation,
merger, sale or transfer by a holder of the number of shares of
Common Stock of the Company into which such Notes could have been
converted immediately prior to such consolidation, merger, sale
or transfer, assuming such holder of Common Stock failed to
exercise any rights of election as to the kind or amount of
securities, cash and other property receivable upon such
consolidation, merger, sale or transfer and received per share
the kind and amount so received per share by the holders of a
plurality of the non-electing shares. (Section 1311 of the
Indenture)
The right of conversion attaching to any Note may be
exercised by the Holder by delivering the Note at the specified
office of a Conversion Agent (see "Payment and Method of
Conversion" below), accompanied by a duly signed and completed
notice of conversion. The conversion date will be the date on
which the Note and the duly signed and completed notice of
conversion are so delivered. Each Bearer Note delivered for
conversion must be delivered with all coupons with interest
payment dates after the date of conversion, as provided in the
Indenture. Coupons with interest payment dates on or before the
date of conversion and not in default will be payable against
surrender thereof, and coupons so maturing but in default will
continue to be payable, as set forth in the Indenture,
notwithstanding the exercise of the right of conversion by the
Holder of the Note to which the coupons appertain, but coupons
maturing after the date of conversion will not be paid. Interest
payable on a Registered Note on any Interest Payment Date that is
on or prior to the date such Note is surrendered for conversion
will be payable to the registered Holder thereof as of the
Regular Record Date (as defined below) next preceding such
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Interest Payment Date, notwithstanding the exercise of the right
of conversion. Each Registered Note surrendered for conversion
during the period from the close of business on the Regular
Record Date next preceding any Interest Payment Date to the
opening of business on such Interest Payment Date (except a Note
called for redemption on a Redemption Date or to be repurchased
on a Repurchase Date during such period) must be accompanied by
payment of an amount equal to the interest thereon which the
registered Holder is to receive on such Interest Payment Date.
Except for payment of such interest on Registered Notes that are
surrendered for conversion and are accompanied by payment as
described above, no interest will be payable on any Notes
surrendered for conversion, or on any appurtenant coupons, in
respect of any Interest Payment Date after the date of
conversion. Therefore, Holders that surrender Notes for
conversion on a date that is not an Interest Payment Date will
not receive any interest for the period from the Interest Payment
Date next preceding the date of conversion to the date of
conversion or for any later period, even if the Notes are
surrendered after a notice of redemption has been issued or a
Change in Control has occurred (except in the limited
circumstances regarding Registered Notes as described above). No
other payment or adjustment for interest, or for any cash
dividends in respect of Common Stock, will be made upon
conversion. Holders of Common Stock issued on conversion will
not be entitled to receive any dividends payable to holders of
Common Stock as of any record time before the close of business
on the date of conversion. (Articles Two and Thirteen of the
Indenture)
A Holder delivering a Note for conversion will not be
required to pay any taxes or duties in respect of the issue or
delivery of Common Stock on conversion but will be required to
pay any tax or duty which may be payable in respect of (x) any
transfer involved in the issue or delivery of the Common Stock in
a name other than that of the Holder of the Note, and (y) any tax
arising under Section 897 or 1445 of the United States Internal
Revenue Code of 1986, as amended (the "Code"), without receiving
any Additional Amounts (as described below under "Payment of
Additional Amounts") with respect thereto. Certificates
representing shares of Common Stock will not be issued or
delivered unless all taxes and duties. if any, payable by the
Holder have been paid. (Sections 1302 and 1308 of the indenture)
Fractional shares of Common Stock will not be issued upon
conversion, but, in lieu thereof, the Company will pay a cash
adjustment, as provided in the Indenture, based upon the market
price of the Common Stock on the day of conversion. (Section 1303
of the Indenture)
If at any time, (a) the Company makes a distribution of
property to its shareholders or purchases Common Stock in a
tender offer and such distribution or purchase would be taxable
to such shareholders as a dividend for United States federal
income tax purposes (e.g., distributions of evidences of
indebtedness or assets of the Company, but generally not stock
dividends or rights to subscribe for Common Stock) and, pursuant
to the antidilution provisions of the Indenture, the Conversion
Rate of the Notes is increased, or (b) the Conversion Rate of the
Notes is increased at the discretion of the Company, such
increase may be deemed to be the payment of a taxable dividend to
Holders or beneficial owners of Notes (pursuant to Section 305 of
the Code), and, in the case of Holders or beneficial owners who
are United States Aliens, subsequent payments on the Notes up to
the amount of the deemed taxable dividend may be reduced as a
result of United States federal withholding tax at the rate of
30% (or such lower rate as may be provided by an applicable tax
treaty). See "Payment of Additional Amounts" below.
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A description of the Common Stock into which the Notes may
be converted is set forth in the Company's S-4 Registration
Statement No. 33-48526, filed on June 10, 1992, which description
is incorporated by reference in this registration statement.
REDEMPTION
Redemption at the Option of the Company
No sinking fund is provided for the Notes. The Notes may be
redeemed, at the option of the Company, in whole but not in part,
upon not more than 60 nor less than 30 days' notice prior to the
Redemption Date (which notice will be irrevocable), as provided
under "Notices" below, at any time on or after June 23, 1996 at a
Redemption Price equal to 100% of the principal amount plus
accrued interest to the Redemption Date. (Section 202 of the
Indenture)
Redemption for Taxation Reasons
The Notes (including both Bearer and Registered Notes) may
also be redeemed at the option of the Company, in whole but not
in part, at any time upon not more than 60 nor less than 30 days'
prior notice (which notice will be irrevocable), as provided
under "Notices" below, at a Redemption Price equal to 100% of the
principal amount plus accrued interest to the Redemption Date,
together with any Additional Amounts (as described below under
"Payment of Additional Amounts") if the Company has or will
become obligated to pay such Additional Amounts as a result of
any change in, or amendment to, the laws (including any
regulation or rulings promulgated thereunder) of the United
States or any political subdivision or taxing authority thereof
or therein, or any change in, or amendment to, the application or
official interpretation of such laws, regulations or rulings, and
such obligation cannot be avoided by the Company taking
reasonable measures available to it; provided, that (1) no such
notice of redemption shall be given earlier than 90 days prior to
the earliest date on which the Company would be obligated to pay
any such Additional Amounts were the Company to make a payment in
respect of the Notes and (2) at the time such notice of
redemption is given, the obligation to pay such Additional
Amounts (at the time of payments in respect of the Notes) remains
in effect. Prior to the publication of any notice of redemption
pursuant to this paragraph, the Company shall deliver to the
Trustee (a) a certificate stating that the conditions precedent
to the right of the Company so to redeem have occurred and (b) a
written opinion of independent counsel selected by the Company,
which counsel shall be reasonably acceptable to the Trustee, to
the effect that the Company has or will become obligated to pay
such Additional Amounts (at the time of payments in respect of
the Notes) as a result of such change or amendment. The
Company's right to redeem the Notes shall continue as long as the
Company is obligated to pay such Additional Amounts,
notwithstanding that the Company shall have theretofore made
payments of Additional Amounts. (Sections 202(a) and 202(b) of
the Indenture)
In addition, if the Company determines, based upon a written
opinion of independent counsel selected by the Company, which
counsel shall be reasonably acceptable to the Trustee, that any
payment made outside the United States by the Company or any of
its Paying Agents of the full amount of principal or interest due
with respect to any Bearer Note or coupon
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appertaining thereto
would, under any present or future laws or regulations of the
United States, be subject to any certification, identification or
other information reporting requirement of any kind (other than
the Initial Certification), the effect of which is the disclosure
to the Company, any Paying Agent or any governmental authority of
the nationality, residence or identity of a beneficial owner of
such Bearer Note or coupon who is a United States Alien (other
than such a certification or identification or other information
reporting requirement (a) which would not be applicable to a
payment made by the Company or any one of its Paying Agents
(i) directly to the beneficial owner or (ii) to any custodian,
nominee or other agent of the beneficial owner, (b) which can be
satisfied by the custodian, nominee or other agent certifying
that the beneficial owner is a United States Alien, provided,
that in each case referred to in Clauses (a) (ii) and (b) above,
payment by such custodian, nominee or other agent to such
beneficial owner is not otherwise subject to any such
requirement, or (c) which would not be applicable but for the
fact that such Bearer Note constitutes a "United States real
property interest," as defined in Section 897(c)(1) of the Code,
with respect to the beneficial owner of such Bearer Note, each of
the foregoing an "Allowed Certification"), the Company at its
election will either (x) redeem the Bearer and Registered Notes,
in whole but not in part, at a Redemption Price equal to 100% of
the principal amount plus accrued interest to the Redemption
Date, or (y) if and so long as the conditions of the final
paragraph under "Payment of Additional Amounts" are satisfied,
pay the Additional Amounts specified in such paragraph. The
Company will make such determination and election and give notice
(the "Determination Notice") to the Trustee thereof in writing as
soon as practicable, and the Trustee will promptly publish such
determination, in each case stating the effective date of such
certification, identification or information reporting
requirement, whether the Company will redeem the Notes or will
pay the Additional Amounts specified in the final paragraph under
"Payment of Additional Amounts" and (if applicable) the last date
by which the redemption of the Notes must take place. If the
Company elects to redeem the Notes, such redemption shall take
place on a date, not later than one year after publication of the
Determination Notice, as the Company elects by notice in writing
to the Trustee, provided that such notice is given at least 75
days before the Redemption Date, unless shorter notice is
acceptable to the Trustee. Notwithstanding the foregoing, the
Company will not so redeem the Notes if the Company, based upon a
written opinion of independent counsel selected by the Company,
which counsel shall be reasonably acceptable to the Trustee,
subsequently determines, not less than 30 days prior to the
Redemption Date, that subsequent payments would not be subject to
any such requirement, in which case the Company will notify the
Trustee in writing, and the Trustee will promptly give notice to
the Holders of the Notes of that determination and any earlier
Determination Notice will thereupon be revoked and of no further
effect. If the Company elects as provided in clause (y) above to
pay Additional Amounts, the Company may, as long as the Company
is obligated to pay such Additional Amounts, redeem all the
Notes, at any time, in whole but not in part, at a Redemption
Price equal to 100% of the principal amount plus accrued interest
to the Redemption Date, together with any Additional Amounts the
Company is obligated to pay pursuant to the final paragraph under
"Payment of Additional Amounts". (Sections 202(a) and 202(b) of
the Indenture)
Holders of Registered Notes should be aware that their Notes
may be redeemed in accordance with the provisions described in
the preceding paragraph as a result of a certification,
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identification or other information reporting requirement that
applies only to Holders of Bearer Notes and which does not
otherwise adversely affect Holders of Registered Notes.
The Company may, to the extent permitted by applicable law,
at any time purchase Notes in the open market or by tender at any
price or by private agreement. Any Note so purchased by the
Company may, to the extent permitted by applicable law, be re-
issued or resold or may, at the Company's option, be surrendered
to the Trustee for cancellation. Any Notes surrendered as
aforesaid and all unmatured coupons attached to them or
surrendered with them may not be re-issued or resold and will be
canceled promptly.
CERTAIN RIGHTS TO REQUIRE PURCHASE OF NOTES
If a Change in Control (as defined below) occurs, each
Holder of Notes will have the right, at the Holder's option, to
require the Company to purchase all or any part of the Holder's
Notes on the date (the "Repurchase Date") that is 45 days after
the date the Company gives notice of the Change in Control at a
price (the "Repurchase Price") equal to 100% of the principal
amount plus accrued interest to the Repurchase Date.
(Section 1501 of the Indenture) Prior to the Repurchase Date,
the Company shall deposit with a Paying Agent an amount of money
sufficient to pay the Repurchase Price of the Notes which are to
be repaid on the Repurchase Date. (Section 1503 of the Indenture)
On or before the 30th day after the occurrence of a Change
in Control, the Company is obligated to give notice of the
occurrence of such Change in Control, the date by which the
repurchase right must be exercised, the Repurchase Price, the
Repurchase Date and the procedures which the Holder must follow
to exercise this right. To exercise the repurchase right, the
Holder of a Note must deliver, on or before the 5th day prior to
the Repurchase Date, written notice to the Company (or an agent
designated by the Company for such purpose) of the Holder's
exercise of such right, together with the certificates evidencing
the Note or Notes with respect to which the right is being
exercised, duly endorsed for transfer. (Section 1502 of the
Indenture)
A Change in Control will be deemed to have occurred at such
time as:
(1) any Person (including any group deemed to be a
"person" under Section 13(d)(3) of the United States
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), other than the Company, any subsidiary of the Company
or any employee benefit plan) of the Company or any
subsidiary or any person or entity organized, appointed or
established by the Company or such subsidiary for or
pursuant to the terms of any such plan, is or becomes the
beneficial owner, directly or indirectly, of shares of
capital stock of the Company entitling such Person to
exercise more than 50% of the total voting power of all
shares of capital stock of the Company entitled to vote
generally in the election of directors; or
(2) there occurs (x) any consolidation of the Company
with, or merger of the Company into, any other Person, (y)
any merger of another Person into the Company, or (z) any
sale or transfer of all or substantially all of the assets
of the Company to another
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Person (other than a merger which
does not result in any change, reclassification, conversion,
exchange or cancellation of outstanding shares of Common
Stock);
provided, however, that a Change of Control shall not be deemed
to have occurred if at least 80% of the value of the
consideration paid to holders of Common Stock who fail to
exercise any rights of election as to the kind and amount of
consideration payable in connection with such transaction or
transactions consists of shares of common stock traded on a
national securities exchange or quoted on the NASDAQ National
Market System and as a result of such transaction or transactions
the Notes become convertible into such consideration.
The Company may not purchase any Note upon the occurrence of
a Change in Control at any time when the subordination provisions
of the Indenture would prohibit the Company from making payments
of principal in respect of the Notes. Failure by the Company to
repurchase the Notes when required upon the occurrence of a
Change in Control will result in an Event of Default under the
Indenture whether or not such repurchase is permitted by the
subordination provisions of the Indenture.
The foregoing provisions would not necessarily afford
Holders of the Notes protection in the event of highly leveraged
transaction or certain other transactions involving the Company
that could adversely affect Holders.
The effect of the foregoing repurchase rights may make it
more difficult for any person or group to acquire control of the
Company or to effect a business combination with the Company. If
a Change in Control were to occur, there can be no assurance that
the Company would have funds sufficient to pay the Repurchase
Price for all of the Notes that might be tendered by the Holders
thereof seeking to exercise the repurchase right.
PAYMENT OF ADDITIONAL AMOUNTS
The Company will pay to the Holder of any Note or any coupon
appertaining thereto who is a United States Alien, as additional
interest, such Additional Amounts as may be necessary in order
that every net payment on such Note (including payment of the
principal of and interest on such Note and payment through the
delivery of shares of Common Stock upon conversion but not
including any payment with respect to such Common Stock), after
deduction or withholding for or on account of any present or
future tax, assessment or governmental charge imposed upon or as
a result of such payment by the United States or any political
subdivision thereof or taxing authority therein, will not be less
than the amount provided for in such Note or in such coupon to be
then due and payable; provided, however, that the foregoing
obligation to pay Additional Amounts will not apply to:
(a) any tax, assessment or other governmental charge which
would not have been so imposed but for (i) the existence of any
present or former connection between such Holder or beneficial
owner of such Note (or between a fiduciary, settlor, beneficiary,
member, shareholder of or possessor of a power over such Holder
or beneficial owner, if such Holder or beneficial owner is an
estate, a trust, a partnership or a corporation) and the United
States or any political
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subdivision or taxing authority thereof
or therein, including, without limitation, such Holder or
beneficial owner (or such fiduciary, settlor, beneficiary,
member, shareholder or possessor) being or having been a citizen
or resident of the United States or treated as a resident
thereof, or being or having been engaged in trade or business or
present therein, or having or having had a permanent
establishment therein, or (ii) such Holder's or beneficial
owner's present or former status as a personal holding company, a
foreign personal holding company with respect to the United
States, a controlled foreign corporation for United States tax
purposes or a corporation which accumulates earnings to avoid
United States federal income tax;
(b) any tax, assessment or other governmental charge which
would not have been so imposed but for the presentation by the
Holder of such Note or any coupon appertaining thereto for
payment on a date more than 15 days after the date on which such
payment became due and payable or the date on which payment
thereof is duly provided for, whichever occurs later;
(c) any estate, inheritance, gift, sales, transfer, personal
property or similar tax, assessment or governmental charge;
(d) any tax, assessment or other governmental charge which
would not have been imposed but for the failure to comply with
any certification, identification or other reporting requirements
concerning the nationality, residence, identity or connection
with the United States of the Holder or beneficial owner of such
Note or any coupon appertaining thereto, if compliance is
required by statute or by any Treasury Regulation as a
precondition to exemption from such tax, assessment or other
governmental charge and, in the case of a Bearer Note, the
Company has received the opinion referred to in the second
paragraph under "Redemption Redemption for Taxation Reasons"
above;
(e) any tax, assessment or other governmental charge which
is not payable by deduction or withholding from payments of
principal of or interest on such Note;
(f) any tax, assessment or other governmental charge imposed
as a result of a person's past or present actual or constructive
ownership (including by virtue of the right to convert Notes) of
10% or more of the total combined voting power of all classes of
stock of the Company entitled to vote;
(g) any tax, assessment or other governmental charge
required to be withheld by any Paying Agent from any payment of
the principal of or interest on such Note, if such payment can be
made without such withholding by any other Paying Agent in
Western Europe;
(h) any tax, assessment or other governmental charge which
would not have been imposed but for the fact that such Note
constitutes a "United States real property interest" as defined
in Section 897(c)(1 ) of the Code with respect to the beneficial
owner of such Note; or
(i) any combination of items (a), (b), (c), (d), (e), (f),
(9) and (h);
nor shall such Additional Amounts be paid with respect to a
payment on a Note or coupon to a Holder that is a fiduciary or
partnership or other than the sole beneficial owner of such
payment to the extent a beneficiary or settlor with respect to
such fiduciary or a member of such partnership
11
or a beneficial
owner would not have been entitled to Additional Amounts (or
payment of Additional Amounts would not have been necessary) had
such beneficiary, settlor, member or beneficial owner been the
Holder of such Note or coupon. (Sections 202(a) and 202(b) of the
Indenture)
Notwithstanding the foregoing, if and so long as a
certification, identification or other information reporting
requirement referred to in the second paragraph under
"Redemption Redemption for Taxation Reasons" above (without
regard to whether the Company has obtained the opinion referred
to therein) would be fully satisfied by payment of a backup
withholding tax or similar charge, the Company may elect, by so
stating in the Determination Notice, to have the provisions of
this paragraph apply. In such event, the Company will pay as
Additional Amounts such amounts as may be necessary so that every
net payment made, following the effective date of such
requirements, outside the United States by the Company or any
Paying Agent of principal due in respect of any Bearer Note, or
interest represented by any coupon, the beneficial owner of which
is a United States Alien (but without any requirement that the
nationality, residence or identity of such beneficial owner be
disclosed to the Company, any Paying Agent or any governmental
authority), after deduction or withholding for or on account of
such backup withholding tax or similar charge other than such a
tax or charge that is (a) the result of the failure to provide an
Allowed Certification or (b) imposed as a result of the fact that
the Holder or beneficial owner of such Note or coupon is within
the category of persons described in Clause (a) of the first
paragraph under "Payment of Additional Amounts" or (c) imposed as
a result of presentation of such Note or coupon for payment more
than 15 days after the date on which such payment becomes due and
payable or on which payment thereof is duly provided for,
whichever occurs later, or (d) imposed as a result of a person's
past or present actual or constructive ownership (including by
virtue of the right to convert Notes) of 10% or more of the total
combined voting power of all classes of stock of the Company
entitled to vote, will not be less than the amount provided for
in such Note or coupon to be then due and payable. (Sections
202(a) and 202(b) of the Indenture)
PAYMENT AND METHOD OF CONVERSION
Bearer Notes and coupons will be payable in dollars against
surrender thereof, subject to any applicable laws and
regulations, at such paying agencies outside the United States as
the Company may appoint from time to time and at which, at the
option of the Holder, such payment will be made by dollar check
drawn on a bank in New York City or by transfer to a dollar
account maintained by the payee with a bank located outside the
United States. No payment with respect to any Bearer Note or
coupon will be made at the Corporate Trust Office of the Trustee
or any other paying agency maintained by the Company in the
United States, nor will any such payment be made by transfer to
an account, or by mail to an address, in the United States.
Notwithstanding the foregoing, payments with respect to Bearer
Notes and coupons may be made at an office or agency of the
Corporate Trust Office of the Trustee in New York City if payment
at all paying agencies outside the United States is illegal or
effectively precluded because of the imposition of exchange
controls or other similar restrictions. It would be the
responsibility of the payee to establish and maintain such a
dollar account. (Section 202(a) of the Indenture)
12
Registered Notes will be payable in dollars, against
surrender thereof at the Corporate Trust Office of the Trustee in
New York City or, subject to any applicable laws and regulations,
at the office of any Paying Agent, by dollar check drawn on, or
by transfer to a dollar account maintained by the Holder with, a
bank in New York City. Payment of any installment of interest on
Registered Notes will be made to the person in whose name such
Note is registered in the Security Register at the close of
business on the June 8 or December 8 immediately preceding the
relevant Interest Payment Date (the "Regular Record Date").
Payments of such interest will be made by a dollar check drawn on
a bank in New York City mailed to the Holder at such Holder's
registered address or, upon application by the Holder thereof to
the Registrar not later than the applicable Regular Record Date,
by transfer to a dollar account (such transfer to be made only to
Holders of an aggregate principal amount of Registered Notes in
excess of U.S.$5,000,000) maintained by the Holder with a bank in
New York City. (Section 202(b) of the Indenture)
Any payment on the Notes due on any day which is not a
Business Day need not be made on such day, but may be made on the
next succeeding Business Day with the same force and effect as if
made on such due date and no interest shall accrue for the period
from and after such date. (Section 202 of the Indenture)
"Business Day", as defined in the Indenture, when used with
respect to any Place of Payment, Place of Conversion or any other
place, as the case may be, means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking
institutions in The City of New York or that Place of Payment,
Place of Conversion or other place, as the case may be, are
authorized or obligated by law or executive order to close.
Notes may be surrendered for conversion, subject to any
applicable laws and regulations, at the office of any Conversion
Agent outside the United States. In addition, Registered Notes
may be surrendered for conversion at the Corporate Trust Office
of the Trustee in New York City and, if conversion at all
Conversion Agents outside the United States is illegal or
effectively precluded because of the imposition of exchange
controls or similar restrictions, Bearer Notes may be surrendered
for conversion at such Corporate Trust Office. Notes surrendered
for conversion must be accompanied by appropriate notices
(including a duly signed and completed notice of conversion), any
unmatured coupons and any payments in respect of interest or
taxes as applicable, as described above under "Conversion
Rights." As promptly as practicable on or after the conversion
date, the Company shall issue and deliver at the office of such
Conversion Agent a certificate or certificates for the number of
full shares of newly issued Common Stock issuable upon
conversion, together with payment in lieu of any fraction of a
share. (Sections 202 and 1302 of the Indenture)
Bearer Notes must be presented for payment upon redemption
together with all unmatured coupons, failing which the amount of
any missing unmatured coupons will be deducted from the sum due
for payment. Each amount so deducted will be paid in the manner
mentioned above against surrender of the related missing coupon.
Interest payable on Bearer Notes on any Redemption Date or
Repurchase Date which is an Interest Payment Date will be paid to
the Holders of the coupons maturing on such Interest Payment
Date. Interest payable on Registered Notes on any Redemption
Date or Repurchase Date that is an Interest Payment Date will be
paid to Holders of record reflected on the Security Register on
the immediately preceding Regular Record Date. (Sections 1206 and
1501 of the Indenture)
13
Payments of principal upon redemption, delivery of Common
Stock upon conversion and payments of cash, if any, in lieu of
fractional shares upon conversion of a Note will be made, in each
case, only upon delivery by the Holder of the Note of written
certification (a "Section 897 Certification"), in the form
required by the Indenture, either (i) stating whether the Note
does or does not constitute a "United States real property
interest" as defined in Section 897 of the Code and the
regulations thereunder with respect to the beneficial owner of
the Note or (ii) stating that the beneficial owner of the Note is
not a United States Alien. See "United States Taxation United
States Alien Holders Foreign Investment in Real Property Tax
Act." (Section 202 of the Indenture)
All moneys deposited with the Trustee or any Paying Agent,
or then held by the Company, in trust for the payment of
principal of or interest on any Notes which remain unclaimed at
the end of two years after such payment has become due and
payable will be repaid to the Company, and the Holder of such
Note or any coupon appertaining thereto will thereafter look only
to the Company for payment thereof without interest after the
date payment has become due and payable; provided, however, that
all such amounts payable in respect of Bearer Notes will be
payable only outside the United States within the meaning of
Section 1.163-5(c)(2)(v) of the Treasury Regulations. (Section
1103 of the Indenture)
PAYING AGENTS AND CONVERSION AGENTS
The Company has appointed as Paying Agents and Conversion
Agents: (1) The Chase Manhattan Bank, 4 Chase Metro Tech Center,
Brooklyn, NY 11245; (2) The Chase Manhattan Bank, Woolgate House,
Coleman Street, London, England EC2P 2HD; and (3) Chase Manhattan
Bank Luxembourg, S.A., 5 Rue Plaetis, L-2338 Luxembourg. The
Company may at any time terminate the appointment of any Paying
Agent or Conversion Agent or appoint additional or other Paying
Agents and Conversion Agents, provided that until the Notes have
been delivered to the Trustee for cancellation, or moneys
sufficient to pay the principal of and interest on the Notes have
been made available for payment and either paid or returned to
the Company as provided in the Indenture, the Company will
maintain an office or agency in New York City for payments with
respect to Registered Notes and for surrender of Notes for
conversion (but only in the circumstances described in the first
and fourth paragraphs under "Payment and Method of Conversion,"
and not otherwise, with respect to Bearer Notes), and in a
Western European city (which, so long as the Notes are listed on
the Luxembourg Stock Exchange and the Luxembourg Stock Exchange
shall so require, will be Luxembourg) for payments with respect
to the Notes and for the surrender of Notes for conversion.
Notice of any such termination or appointment and of any change
in the office through which any Paying Agent or Conversion Agent
will act will be given in accordance with "Notices" below.
(Section 1102 of the Indenture)
EVENTS OF DEFAULT
The following are Events of Default under the Indenture:
(a) failure to pay principal when due, whether or not such
failure is a result of the subordination provisions of the
Indenture, (b) failure to pay any interest when due, which
failure continues for 30 days, whether or not such
14
failure is a
result of the subordination provisions of the Indenture,
(c) failure to perform any covenant of the Company in the
Indenture, which failure continues for a period of 60 days after
written notice as provided in the Indenture (which period, in
certain circumstances, may be extended by an additional 30 days),
(d) failure to pay at final maturity (either at stated maturity
or on acceleration of the maturity of) the principal of any
Indebtedness (as defined below) in excess of $20 million if such
default in payment or acceleration has not been cured or
rescinded, and (e) certain events of bankruptcy, insolvency or
reorganization. Indebtedness is defined to mean obligations
(other than non-recourse obligations) of, or guaranteed or
assumed by, the Company for borrowed money, including obligations
evidenced by bonds, debentures, notes or similar instruments.
(Section 501 of the Indenture)
If an Event of Default shall occur and be continuing (the
default not having been cured or waived as provided below under
"Meetings, Modification and Waiver"), (i) the Trustee upon the
direction of the Holders of 40% in aggregate principal amount of
the Notes then Outstanding or (ii) the Holders of 40% in
aggregate principal amount of the Notes then Outstanding, may
declare the principal of the Notes plus accrued interest to the
date of declaration to be due and payable, and thereupon the
Trustee may, at its discretion, proceed to protect and enforce
the rights of the Holders of Notes by appropriate judicial
proceedings. Such declaration may be rescinded or annulled
either with the written consent of the Holders of a majority in
aggregate principal amount of the Notes then Outstanding or by a
resolution adopted by Holders of 66-2/3% in aggregate principal
amount of the Notes represented at a meeting at which a quorum
(as specified under "Meetings, Modification and Waiver" below) is
present, in each case upon the conditions provided in the
Indenture. (Sections 502 and 513 of the Indenture)
No Holder of any Note will have any right to institute any
proceeding with respect to the Indenture or for any remedy
thereunder, unless such Holder shall have previously given to the
Trustee written notice of a continuing Event of Default and
unless the Holders of at least 40% in aggregate principal amount
of the Outstanding Notes also shall have made written request to
the Trustee to institute such proceeding, such Holder has offered
to the Trustee reasonable indemnity, the Trustee for 60 days
after receipt of such notice has failed to institute such
proceeding, and no direction inconsistent with such request shall
have been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Notes. However, such limitations do not apply to a suit
instituted by a Holder of a Note for enforcement of payment of
the principal of or interest on such Note on or after the
respective due dates expressed in such Note or of the right to
convert such Note in accordance with the Indenture. The
Indenture provides that the Holders of a majority in aggregate
principal amount of the Notes then Outstanding may direct the
time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power
conferred upon the Trustee. (Sections 507, 508 and 512 of the
Indenture)
The Company will be required to furnish annually to the
Trustee a statement as to the fulfillment of it obligations under
the Indenture. (Section 1108 of the Indenture)
15
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
The Company may not consolidate with or merge into any other
Person or convey, transfer, sell or lease all or substantially
all of its properties and assets to any Person, and the Company
shall not permit any Person (other than a wholly owned Subsidiary
of the Company) to consolidate with or merge into the Company or
convey, transfer, sell or lease all or substantially all of its
properties and assets to the Company unless, among other things,
immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have occurred and
be continuing. (Section 801 of the Indenture)
MEETINGS, MODIFICATION AND WAIVER
The Indenture contains provisions for convening meetings of
the Holders of Notes to consider matters affecting their
interests.
The Indenture (including the terms and conditions of the
Notes and coupons) may be modified or amended by the Company and
the Trustee, without the consent of the Holder of any Note or
coupon, for the purposes of (a) adding to the covenants of the
Company for the benefit of the Holders of Notes or coupons; (b)
surrendering any right or power conferred upon the Company; (c)
removing or relaxing the restrictions on the payment of principal
or interest in respect of Notes in the United States to the
extent then permitted under applicable Treasury Regulations, and
provided no adverse consequences would result to any Holder of
the Notes; (d) providing for the conversion rights of Holders of
Notes in the event of any consolidation of the Company with, or
merger of the Company into, any other Person, or the conveyance,
transfer, sale or lease of all or substantially all of the
properties and assets of the Company; (e) evidencing the
succession of another Person to the Company and the assumption by
such successor of the covenants and obligations of the Company
thereunder and in the Notes and the coupons as permitted by the
Indenture; or (f) curing any ambiguity or correcting or
supplementing any inconsistent or defective provision contained
in the Indenture, or making any other provisions which the
Company and the Trustee may deem necessary or desirable and which
will not adversely affect the interests of the Holders of Notes
or coupons in any material respect. (Section 901 of the
Indenture)
Modifications of and amendments to the Indenture (including
the terms and conditions of the Notes and coupons) may also be
made, and certain past defaults by the Company may be waived,
either (a) with the written consent of the Holders of not less
than a majority in aggregate principal amount of the Notes at the
time Outstanding or (b) by the adoption of a resolution, at a
meeting of Holders of the Notes at which a quorum is present, by
the Holders of at least 66-2/3% in aggregate principal amount of
the Notes represented at such meeting. However, no such
modification or amendment may, without the consent of the Holder
of each Note or coupon so affected, (a) change the Stated
Maturity of the principal of, or any installment of interest on,
any such Note; (b) reduce the principal amount of, or interest
on, any such Note; (c) change the obligation of the Company to
pay Additional Amounts as described above (except as otherwise
16
permitted by the Indenture); (d) change the currency of payment
of such Note or interest thereon; (e) impair the right to
institute suit for the enforcement of any such payment on or
after the Stated Maturity or Redemption Date of any Note; (f)
modify the obligation of the Company to maintain an office or
agency in New York City and in a European city; (g) except as
otherwise permitted or contemplated by provisions concerning
consolidation, merger, conveyance, transfer, sale or lease of all
or substantially all of the property and assets of the Company,
adversely affect the conversion rights of Holders of the Notes:
(h) modify the subordination provisions of the Notes in a manner
adverse to the Holders of Notes or coupons; (i) reduce the
percentage in aggregate principal amount of Notes Outstanding
necessary to modify or amend the Indenture or to waive certain
past defaults; (j) reduce the percentage in aggregate principal
amount of Notes Outstanding required for the adoption of a
resolution or the quorum required at any meeting of Holders of
Notes at which a resolution is adopted; or (k) modify the
provisions requiring the delivery of such information as may be
required to permit certain resales under the Securities Act in
the event the Company ceases to be subject to the reporting
requirements under the Exchange Act. The quorum at any meeting
called to adopt a resolution will be persons holding or
representing a majority in aggregate principal amount of the
Notes at the time Outstanding and, at any reconvened meeting
adjourned for lack of a quorum, 25% of such aggregate principal
amount. (Sections 902 and 1004 of the Indenture)
TRANSFER AND EXCHANGE
At the option of the Holder upon request confirmed in
writing, and subject to the terms of the Indenture, Bearer Notes
(with all unmatured coupons, except as provided below) will be
exchangeable at any time after the Exchange Date into an equal
aggregate principal amount of Registered Notes, and Registered
Notes will be exchangeable at any time into an equal aggregate
principal amount of Registered Notes of different authorized
denominations. Bearer Notes surrendered in exchange for
Registered Notes between a Regular Record Date (as defined under
"Payment and Method of Conversion" above) and the relevant
Interest Payment Date will not be required to be surrendered with
the coupons relating to such Interest Payment Date. Registered
Notes may not be exchanged for Bearer Notes. (Section 305 of the
Indenture)
Notes may be presented for exchange at the office of any
Transfer Agent or at the office of the Registrar, and Registered
Notes may be presented for registration of transfer (with the
form of transfer endorsed thereon duly executed), at the office
of any Transfer Agent or at the office of the Registrar, without
service charge but upon payment of any taxes and other
governmental charges as described in the Indenture. Any
registration of transfer or exchange will be effected upon the
Transfer Agent or the Registrar, as the case may be, being
satisfied with the documents of title and identity of the person
making the request and, with respect to Registered Notes, upon
registration of such transfer in the Security Register, and
subject to such reasonable regulations as the Company may from
time to time agree with the Transfer Agents and the Registrar,
all as described in the Indenture. Registered Notes may be
transferred in whole or in part in the amount of $5,000 or any
integral multiple thereof. (Section 305 of the Indenture)
The Company has appointed as Registrar The Chase Manhattan
Bank, acting through its Corporate Trust Offices in New York City
and as Transfer Agent The Chase Manhattan Bank
17
acting through its
Corporate Trust Offices in New York City and London. The Company
reserves the right to vary or terminate the appointment of the
Registrar or of any Transfer Agent or to appoint additional or
other registrars or transfer agents or to approve any change in
the office through which any Registrar or any Transfer Agent
acts, provided that there will at all times be a Registrar in New
York City and a Transfer Agent in a Western European city, and
provided that so long as the Notes are listed on the Luxembourg
Stock Exchange, and such exchange shall so require, the Company
will maintain a Paying Agent, a Conversion Agent and a Transfer
Agent in Luxembourg. (Section 1102 of the Indenture)
TITLE
Title to the temporary Global Note, the Bearer Notes and the
coupons will pass by delivery. The Company, the Trustee, the
Registrar, the Transfer Agent, any Paying Agent and any
Conversion Agent shall treat the Holder of any Bearer Note, the
Holder of any coupon and the registered owner (as reflected in
the Security Register) of any Registered Note as the absolute
owner thereof (whether or not such Note or coupon shall be
overdue and notwithstanding any notice of ownership or writing
thereon, or any notice of previous loss or theft or other
interest therein) for the purpose of making payment and for all
other purposes. (Sections 202(a) and 202(b) of the Indenture)
NOTICES
Notice to Holders of the Bearer Notes will be given by
publication in Authorized Newspapers (as set forth in the
Indenture) in London and, so long as the Notes are listed on the
Luxembourg Stock Exchange and the Luxembourg Stock Exchange shall
so require, in Luxembourg or, if publication in either London or
Luxembourg is not practical, elsewhere in Western Europe. Such
publication is expected to be made in the Financial Times and the
Luxemburger Wort. Notices to Holders of Registered Notes will be
given by mail to the addresses of such Holders as they appear in
the Security Register. Such notices will be deemed to have been
given on the date of such publication or, if published in such
Authorized Newspapers on different dates, on the date of the
first such publication, or on the date of such mailing, as the
case may be. (Sections 101 and 105 of the Indenture)
Notice of intention to redeem Notes will be given at least
once not more than 60 nor less than 30 days prior to the
Redemption Date (which notice shall be irrevocable). Notices of
redemption will specify the Redemption Date and the applicable
Redemption Price. (Section 1204 of the Indenture)
REPLACEMENT OF NOTES AND COUPONS
Notes (including any coupons appertaining to Bearer Notes)
that become mutilated, destroyed, stolen or lost will be replaced
by the Company at the expense of the Holder upon delivery to the
Trustee or, in the case of Bearer Notes, a Transfer Agent outside
the United States of the Notes and coupons or evidence of the
loss, theft or destruction thereof satisfactory to the
18
Company
and the Trustee. In the case of a lost, stolen or destroyed Note
or coupon, an indemnity satisfactory to the Trustee and the
Company may be required at the expense of the Holder of such Note
or coupon before a replacement Note (with the relevant coupons
appertaining thereto, if any) or coupon will be issued. (Section
306 of the Indenture).
LIMITATIONS OF CLAIMS IN BANKRUPTCY
If a proceeding is commenced in respect of the Company under
the United States Bankruptcy Code, the claims of Holders will be
limited to 100% of the principal amount plus any interest that
has accrued from the date of issue to the commencement of the
proceeding.
GOVERNING LAW
The Indenture, the Notes and the coupons are governed by and
will be construed in accordance with the law of the State of New
York. (Section 110 of the Indenture)
19
Item 2. Exhibits
Description
Exhibit
No.
3.1 Restated Certificate of Incorporation of
Homestake Mining Company (incorporated by
reference to Exhibit 3.1 to the Registrant's
Registration Statement No. 33-48526 on Form S-4
filed on June 10, 1992 (the "S-4 Registration
Statement")).
3.2 Amendment to Restated Certificate of
Incorporation of Homestake Mining Company dated
June 3, 1991 (incorporated by reference to
Exhibit 3.2 to the S-4 Registration Statement).
3.3 Certificate of Correction of the Restated
Certificate of Incorporation of Homestake Mining
Company dated February 10, 1992 (incorporated by
reference to Exhibit 3.3 to the S-4 Registration
Statement).
3.4 Certificate of Designation of Series A
Participating Cumulative Preferred Stock Setting
Forth the Powers, Preferences, Rights,
Qualifications, Limitations and Restrictions of
Such Series of Preferred Stock of Homestake
Mining Company (incorporated by reference to
Exhibit 2 to Registrant's Registration Statement
Form 8-A dated October 16, 1987).
3.5 Amendment to Certificate of Designation of Series
A Participating Cumulative Preferred Stock of
Homestake Mining Company (incorporated by
reference to Exhibit 3.6 to the Registrant's
Report on Form 8-K dated November 20, 1996).
3.6 Bylaws (as amended) of Homestake Mining Company
(incorporated by reference to Exhibit 3.4 to the
Registrant's Form 10-Q Report for the Quarterly
Period ended March 31, 1995).
3.7 Rights Agreement dated October 16, 1987
(incorporated by reference to Exhibit 1 to the
Registrant's Registration Statement on Form 8-A
dated October 16, 1987).
4.1 Indenture dated as of January 23, 1993 between
Homestake Mining Company, Issuer and The Chase
Manhattan Bank, N.A., Trustee, with respect to
U.S.$150,000,000 principal amount of 5-1/2%
Convertible Subordinated Notes due January 23,
2000 (incorporated by reference to Exhibit 4.2 to
the Registrant's form 8-K Report dated as of June
23, 1993).
20
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this
registration statement to be signed on its behalf by the
undersigned, thereto duly authorized.
HOMESTAKE MINING COMPANY
By:
Name: Wayne Kirk
Title: Vice President, General Counsel
and Corporate Secretary
Dated November 27, 1996
21
INDEX TO EXHIBITS
Exhibit Description
No.
3.1 Restated Certificate of Incorporation of
Homestake Mining Company (incorporated by
reference to Exhibit 3.1 to the Registrant's
Registration Statement No. 33-48526 on Form S-4
filed on June 10, 1992 (the "S-4 Registration
Statement")).
3.2 Amendment to Restated Certificate of
Incorporation of Homestake Mining Company dated
June 3, 1991 (incorporated by reference to
Exhibit 3.2 to the S-4 Registration Statement).
3.3 Certificate of Correction of the Restated
Certificate of Incorporation of Homestake Mining
Company dated February 10, 1992 (incorporated by
reference to Exhibit 3.3 to the S-4 Registration
Statement).
3.4 Certificate of Designation of Series A
Participating Cumulative Preferred Stock Setting
Forth the Powers, Preferences, Rights,
Qualifications, Limitations and Restrictions of
Such Series of Preferred Stock of Homestake
Mining Company (incorporated by reference to
Exhibit 2 to Registrant's Registration Statement
Form 8-A dated October 16, 1987).
3.5 Amendment to Certificate of Designation of Series
A Participating Cumulative Preferred Stock of
Homestake Mining Company (incorporated by
reference to Exhibit 3.6 to the Registrant's
Report on Form 8-K dated November 20, 1996).
3.6 Bylaws (as amended) of Homestake Mining Company
(incorporated by reference to Exhibit 3.4 to the
Registrant's Form 10-Q Report for the Quarterly
Period ended March 31, 1995).
3.7 Rights Agreement dated October 16, 1987
(incorporated by reference to Exhibit 1 to the
Registrant's Registration Statement on Form 8-A
dated October 16, 1987).
4.1 Indenture dated as of January 23, 1993 between
Homestake Mining Company, Issuer and The Chase
Manhattan Bank, N.A., Trustee, with respect to
U.S.$150,000,000 principal amount of 5-1/2%
Convertible Subordinated Notes due January 23,
2000 (incorporated by reference to Exhibit 4.2 to
the Registrant's form 8-K Report dated as of June
23, 1993).
22
