SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR (G) OF THE
SECURITIES EXCHANGE ACT OF 1934
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BATTLE MOUNTAIN GOLD COMPANY
(Exact name of registrant as specified in its charter)
NEVADA 76-0151431
(State of incorporation or organization) (I.R.S. Employer Identification No.)
333 CLAY STREET, 42ND FLOOR
HOUSTON, TEXAS 77002-4103
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange on which
TITLE OF EACH CLASS TO BE SO REGISTERED EACH CLASS IS TO BE REGISTERED
Common Stock, par value
$0.10 per share New York Stock Exchange
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:
None
(title of class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
Item 1 of the Form 8-A of the Registrant is hereby amended to read in its
entirety as follows:
DESCRIPTION OF BATTLE MOUNTAIN CAPITAL STOCK
GENERAL
As of August 21, 1996, Battle Mountain Gold Company, a Nevada
corporation ("Battle Mountain"), is authorized by its Restated Articles of
Incorporation, as amended (the "Battle Mountain Articles"), to issue 500,000,000
shares of common stock, par value $0.10 per share (the "Battle Mountain Common
Stock"), 50,000,000 shares of preferred stock, par value $1.00 per share (the
"Battle Mountain Preferred Stock"), and one share of special voting stock, par
value $0.10 per share (the "Special Voting Stock"). As of August 21, 1996, there
are 2,300,000 shares of Battle Mountain Preferred Stock designated by the Board
of Directors of Battle Mountain as $3.25 Convertible Preferred Stock (the
"Convertible Preferred Stock") and an additional 5,000,000 shares of Battle
Mountain Preferred Stock designated by the Board of Directors of Battle Mountain
as Series A Junior Participating Preferred Stock (the "Series A Preferred
Stock"). Shares of Series A Preferred Stock have been initially reserved for
issuance upon exercise of the BMG Rights hereinafter described. See "--Battle
Mountain Preferred Stock--Series A Preferred Stock."
Battle Mountain's ability to pay dividends is subject to certain
restrictions contained in loan or credit agreements.
The Bank of New York at its office in New York, New York is the transfer
agent and registrar for Battle Mountain.
The following description of certain terms of the Battle Mountain Common
Stock, the Battle Mountain Preferred Stock, the Special Voting Stock, the
Convertible Preferred Stock and the Series A Preferred Stock and of certain
provisions of the Battle Mountain Articles and the bylaws, as amended, of Battle
Mountain (the "Battle Mountain Bylaws") is qualified in its entirety by
reference to the full text of the Battle Mountain Articles (including the
Certificates of Resolution with respect to the Convertible Preferred Stock and
the Series A Preferred Stock), the Battle Mountain Bylaws and the Rights
Agreement dated as of November 10, 1988, as amended and restated as of July 19,
1996, between Battle Mountain and the Bank of New York, as rights agent (the
"BMG Rights Agreement"), which are included as exhibits to this Registration
Statement and are incorporated herein by reference.
BATTLE MOUNTAIN COMMON STOCK
Subject to the prior rights of any shares of Battle Mountain Preferred
Stock that may from time to time be outstanding, holders of Battle Mountain
Common Stock are entitled to share ratably
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in such dividends as may be lawfully declared by the Board of Directors and paid
by Battle Mountain and, in the event of liquidation, dissolution or winding up
of Battle Mountain, are entitled to share ratably in all assets available for
distribution. Battle Mountain is prohibited from declaring or paying dividends
on the Battle Mountain Common Stock unless Battle Mountain Canada Ltd., an
Ontario corporation ("Battle Mountain Canada"), is able to, and simultaneously
does, declare or pay an equivalent dividend on the exchangeable shares of Battle
Mountain Canada (the "Exchangeable Shares"). See "Description of Battle Mountain
Canada Share Capital -- Voting, Support and Exchange Trust Agreement."
The Battle Mountain Common Stock is entitled to one vote per share held
of record on each matter submitted to a vote of stockholders. Except as
otherwise provided by law or the Battle Mountain Articles, the Battle Mountain
Common Stock and the Special Voting Stock will vote together as a single class
in the election of directors and on all matters submitted to a vote of
stockholders of Battle Mountain. The holders of Battle Mountain Common Stock
have no preemptive rights to purchase any securities of Battle Mountain or
cumulative voting rights. Preferred stock purchase rights are issuable in
respect of all shares of Battle Mountain Common Stock issued prior to certain
events. See " -- Battle Mountain Preferred Stock -- Series A Preferred Stock."
All outstanding shares of Battle Mountain Common Stock are validly issued, fully
paid and nonassessable. Battle Mountain is not prohibited by the Battle Mountain
Articles from repurchasing shares of Battle Mountain Common Stock. Any such
repurchases would be subject to any limitations on the amount available for such
purpose under applicable corporate law, any applicable restrictions under the
terms of any outstanding Battle Mountain Preferred Stock or indebtedness and, in
the case of market purchases, such restrictions on the timing, manner and amount
of such purchases as might apply in the circumstances under applicable
securities laws.
The outstanding Battle Mountain Common Stock is listed on the New York
Stock Exchange, the Australian Stock Exchange Limited, the Swiss Stock Exchange
and the Frankfurt Stock Exchange under the symbol "BMG."
BATTLE MOUNTAIN SPECIAL VOTING STOCK
Except as otherwise required by law or the Battle Mountain Articles, the
one share of Special Voting Stock (the "Special Voting Share") will possess a
number of votes equal to the number of outstanding Exchangeable Shares from time
to time not owned by Battle Mountain or certain subsidiaries of Battle Mountain,
and may be voted in the election of directors and on all other matters submitted
to a vote of stockholders of Battle Mountain. The holders of Battle Mountain
Common Stock and the holder of the Special Voting Share will vote together as a
single class on all matters, except to the extent voting as a separate class is
required by applicable law or the Battle Mountain Articles. In the event of any
liquidation, dissolution or winding up of Battle Mountain, the holder of the
Special Voting Share will not be entitled to receive any assets of Battle
Mountain available for distribution to its stockholders. The holder of the
Special Voting Share is not entitled to receive dividends. Pursuant to the
Combination Agreement dated as of March 11, 1996 by and between Battle Mountain
and Hemlo Gold Mines Inc. ("Hemlo Gold"), as amended and restated (the
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"Combination Agreement"), the Special Voting Share was issued to the trustee
appointed under the Voting, Support and Exchange Trust Agreement (the "Voting,
Support and Exchange Trust Agreement") entered into among Battle Mountain,
Battle Mountain Canada and the trustee thereunder, The R-M Trust Company, or any
successor thereto (the "Trustee") . At such time as the Special Voting Share has
no votes attached to it because there are no Exchangeable Shares outstanding not
owned by Battle Mountain or certain subsidiaries of Battle Mountain, and there
are no shares of stock, debt, options or other agreements of Battle Mountain
Canada that could give rise to the issuance of any Exchangeable Shares to any
person (other than Battle Mountain or certain subsidiaries of Battle Mountain),
the Special Voting Share will be canceled.
BATTLE MOUNTAIN PREFERRED STOCK
Battle Mountain's Board of Directors is authorized, without any further
vote or action by Battle Mountain's stockholders, to divide the Battle Mountain
Preferred Stock into series and, with respect to each series, to determine the
dividend rights, dividend rates, conversion rights, voting rights (which may be
greater or lesser than the voting rights of the Battle Mountain Common Stock),
redemption rights and terms, liquidation preferences, sinking fund rights and
terms, the number of shares constituting the series and the designation of each
series.
CONVERTIBLE PREFERRED STOCK. Holders of shares of Battle Mountain's
Convertible Preferred Stock are entitled to receive, when, as and if declared by
the Board of Directors of Battle Mountain, an annual cash dividend of U.S.$3.25
per share, payable in equal quarterly installments. Except as required by law or
as described in the next sentence, holders of shares of Convertible Preferred
Stock have no voting rights. Whenever dividends on the Convertible Preferred
Stock are in arrears for at least six full quarterly dividends, holders of the
Convertible Preferred Stock will be entitled (voting separately as a class
together with holders of shares of any one or more other series of capital stock
of Battle Mountain ranking on a parity with the Convertible Preferred Stock as
to dividends and having like voting rights) to elect two additional directors
until such dividend arrearage is eliminated. Each share of Convertible Preferred
Stock is convertible at any time, at the option of the holder, into shares of
Battle Mountain Common Stock at a conversion rate of 4.762 shares of Battle
Mountain Common Stock for each share of Convertible Preferred Stock, subject to
adjustment under certain circumstances. The Convertible Preferred Stock is
redeemable at any time on and after May 15, 1996, at the option of Battle
Mountain, in whole or in part, in exchange for shares of Battle Mountain Common
Stock at a redemption price of U.S.$52.275 per share of Convertible Preferred
Stock, and thereafter at prices decreasing ratably annually to U.S.$50.00 per
share on or after May 15, 2003, plus accrued and unpaid dividends. The number of
shares of Battle Mountain Common Stock to be issued upon the redemption of any
share of Convertible Preferred Stock will be equal to the then-current
redemption price divided by the lower of (i) the average of the daily closing
prices of the Battle Mountain Common Stock for the 20 consecutive trading days
immediately preceding the first business day immediately preceding the date of
any applicable redemption notice or (ii) the closing price of the Battle
Mountain Common Stock on the trading day immediately preceding the first
business day immediately preceding the date of any applicable redemption notice.
At no time is the Convertible Preferred Stock redeemable for cash.
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In the event of any liquidation, dissolution or winding up of Battle
Mountain, the holders of shares of Convertible Preferred Stock are entitled to
receive a liquidation preference of U.S.$50.00 per share, plus an amount equal
to any accrued and unpaid dividends to the date of payment, before any
distribution of assets is made to holders of Battle Mountain Common Stock or any
other stock that ranks junior to the Convertible Preferred Stock as to
liquidation rights. The holders of Convertible Preferred Stock and all series or
classes of Battle Mountain's stock that rank on a parity as to liquidation
rights with the Convertible Preferred Stock are entitled to share ratably, in
accordance with the respective preferential amounts payable on such stock, in
any distribution which is not sufficient to pay in full the aggregate of the
amounts payable thereon.
The Convertible Preferred Stock is listed for trading on the NYSE. The
registrar, transfer agent, conversion agent and dividend disbursing agent for
the Convertible Preferred Stock is The Bank of New York.
SERIES A PREFERRED STOCK. On November 10, 1988, the Board of Directors
of Battle Mountain declared a dividend of one Right (a "BMG Right") for each
outstanding share of Battle Mountain Common Stock to stockholders of record at
the close of business on November 21, 1988. BMG Rights are issuable in respect
of all shares of Battle Mountain Common Stock issued after such record date but
prior to the earliest of (i) the Distribution Date (as defined below), (ii) the
date on which the BMG Rights are redeemed as provided below and (iii) November
10, 1998. Each BMG Right entitles the registered holder to purchase from Battle
Mountain a unit consisting of one one-hundredth of a share (a "Unit") of Battle
Mountain's Series A Preferred Stock, at a purchase price of U.S.$60 per Unit,
subject to adjustment (the "Unit Purchase Price").
The BMG Rights are now attached to all Battle Mountain Common Stock
certificates representing outstanding shares, and no separate BMG Rights
Certificates have been distributed. The BMG Rights will separate from the Battle
Mountain Common Stock and a "Distribution Date" will occur upon the earlier of
(i) 10 days following a public announcement that a person or group of affiliated
or associated persons (an "Acquiring Person") has acquired, or obtained the
right to acquire, beneficial ownership of 20 percent or more of the outstanding
shares of Battle Mountain Common Stock (the date of the announcement being the
"Stock Acquisition Date") or (ii) 10 business days (or such later date as may be
determined by Battle Mountain's Board of Directors before the Distribution Date
occurs) following the commencement of a tender offer or exchange offer that
would result in a person or group beneficially owning 30 percent or more of such
outstanding shares of Battle Mountain Common Stock. The Rights Agreement
provides that Noranda Inc., an Ontario corporation ("Noranda"), will not be an
Acquiring Person solely as a result of becoming the beneficial owner of
Exchangeable Shares upon consummation of the arrangement referred to in the
Combination Agreement (the "Arrangement") or Battle Mountain Common Stock
acquired in exchange therefor unless and until it or any of its affiliates or
associates purchase or otherwise become the beneficial owner of any additional
shares of Battle Mountain Common Stock or any other person or persons who is (or
collectively are) the beneficial owners of any shares of Battle Mountain Common
Stock become an affiliate or associate of Noranda unless (x) in either such
case, Noranda, together with all of its affiliates or associates, is not then
the beneficial owner of 20
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percent or more of the shares of Battle Mountain Common Stock then outstanding
or (y) in case Noranda becomes the beneficial owner of such additional shares as
a result of the acquisition by it of another person or of another person who is
such a beneficial owner becoming an affiliate or associate of Noranda as a
result of a bona fide transaction undertaken primarily for another purpose not
related to the acquisition of beneficial ownership of shares of Battle Mountain
Common Stock and not for any purpose with any effect of changing or influencing
control of Battle Mountain, Noranda (or such affiliate or associate) promptly
divests or causes to be divested such additional shares. The BMG Rights
Agreement further provides certain exceptions from the definition of Acquiring
Person, conditional on prompt divestiture. For purposes of the BMG Rights,
beneficial ownership of Exchangeable Shares is treated as beneficial ownership
of Battle Mountain Common Stock and calculations of percentage ownership, the
number of shares outstanding and related provisions are made on a basis that
treats the Battle Mountain Common Stock and Exchangeable Shares as though they
are the same security. The BMG Rights are not exercisable until the Distribution
Date and will expire at the close of business on November 10, 1998, unless
earlier redeemed by Battle Mountain as described below. As described below under
"Description of Battle Mountain Canada Share Capital -- Exchangeable Share
Rights," each Exchangeable Share has an associated right to acquire additional
Exchangeable Shares on terms substantially the same as those on which the BMG
Rights confer the right to acquire Series A Preferred Stock (or in certain
circumstances Battle Mountain Common Stock or other securities).
In the event that (i) Battle Mountain is the surviving corporation in a
merger with an Acquiring Person and the Battle Mountain Common Stock is not
changed or exchanged, (ii) a person becomes the beneficial owner of 30 percent
or more of the then outstanding shares of Battle Mountain Common Stock (except
pursuant to a tender or exchange offer for all outstanding shares of Battle
Mountain Common Stock at a price and on terms that a majority of the independent
directors of Battle Mountain determines to be fair to and otherwise in the best
interests of Battle Mountain and its stockholders), (iii) an Acquiring Person
engages in one or more "self-dealing" transactions as set forth in the BMG
Rights Agreement or (iv) during such time as there is an Acquiring Person, an
event involving Battle Mountain or a subsidiary of Battle Mountain occurs that
results in such Acquiring Person's ownership interest being increased by more
than one percent (E.G., a reverse stock split), at any time following the
Distribution Date, each holder of a BMG Right will thereafter have the right to
receive, upon exercise, Battle Mountain Common Stock (or, in certain
circumstances, cash, property or other securities of Battle Mountain) having a
value equal to two times the exercise price of the BMG Right. The exercise price
is the Unit Purchase Price multiplied by the number of Units issuable upon
exercise of the BMG Right prior to the event described in this paragraph
(initially, one). Notwithstanding any of the foregoing, following the occurrence
of any of the events set forth in this paragraph, all BMG Rights that are, or
(under certain circumstances specified in the BMG Rights Agreement) were,
beneficially owned by any Acquiring Person (or by certain related parties) will
be null and void. However, BMG Rights are not exercisable following the
occurrence of any of the events set forth above until such time as the BMG
Rights are no longer redeemable by Battle Mountain as set forth below.
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In the event that, on or after the Stock Acquisition Date, (i) Battle
Mountain is acquired in a merger or other business combination transaction
(other than a merger described in the preceding paragraph or a merger which
follows an offer described in the preceding paragraph) or (ii) 50 percent or
more of Battle Mountain's assets or earning power is sold or transferred, each
holder of a BMG Right (except BMG Rights which previously have been voided as
set forth above) will thereafter have the right to receive, upon exercise,
common stock of the acquiring company having a value equal to two times the
exercise price of the BMG Right.
At any time until 10 days following the Stock Acquisition Date, Battle
Mountain may redeem the BMG Rights in whole, but not in part, at a price of
U.S.$0.01 per BMG Right, payable, at the option of Battle Mountain, in cash,
shares of Battle Mountain Common Stock or such other consideration as the Board
of Directors may determine. The BMG Rights may have certain antitakeover
effects, including deterring someone from acquiring control of Battle Mountain
in a manner or on terms not approved by the Board of Directors of Battle
Mountain. The BMG Rights should not interfere with any merger or other business
combination approved by the Board of Directors of Battle Mountain.
Any shares of Series A Preferred Stock that may be issued upon exercise
of the BMG Rights will be nonredeemable. The holders of shares of Series A
Preferred Stock will be entitled to receive, when, as and if declared, a
preferential quarterly dividend in an amount per share effectively equal to the
greater of U.S.$2.00 per share or 100 times any cash or noncash dividend or
other distribution declared on the Battle Mountain Common Stock (other than
dividends payable in shares of Battle Mountain Common Stock), in like kind. In
the event of liquidation, the holders of the Series A Preferred Stock will be
entitled to receive a liquidation payment per share in an amount effectively
equal to the greater of U.S.$100 per share or 100 times the per share amount
distributed to holders of Battle Mountain Common Stock. In the event of any
merger, consolidation or other transaction in which shares of Battle Mountain
Common Stock are exchanged, the holder of the shares of Series A Preferred Stock
will be entitled to receive per share 100 times the amount received per share of
Battle Mountain Common Stock. Holders of Series A Preferred Stock will have 100
votes per share of Series A Preferred Stock and, except as otherwise provided in
the Battle Mountain Articles or required by law, will vote together with holders
of Battle Mountain Common Stock as a single class. The rights of the Series A
Preferred Stock as to dividends, liquidation and voting are protected by
antidilution provisions. Whenever dividend payments on the Series A Preferred
Stock are in arrears, Battle Mountain will not (i) purchase or redeem any shares
of Series A Preferred Stock or shares ranking on a parity with respect to the
Series A Preferred Stock except in accordance with a purchase offer to all
holders, (ii) declare or pay dividends on or purchase or redeem any shares of
stock ranking junior to the Series A Preferred Stock or (iii) declare or pay
dividends on or purchase or redeem any shares of stock ranking on a parity with
the Series A Preferred Stock except dividends paid ratably on the Series A
Preferred Stock and all such parity stock and except purchases or redemptions of
such parity stock in exchange for junior stock. If dividend payments on the
Series A Preferred Stock are in arrears for six quarters, the holders of the
Series A Preferred Stock (altogether with holders of any other Preferred Stock
with similar rights) will have the right to elect two additional directors of
Battle Mountain.
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OTHER MATTERS
ANTITAKEOVER PROVISIONS. The Battle Mountain Articles and the Battle
Mountain Bylaws contain certain provisions that might be characterized as
antitakeover provisions. Such provisions may render more difficult certain
possible takeover proposals to acquire control of Battle Mountain and make
removal of management of Battle Mountain more difficult.
PROVISIONS OF THE BATTLE MOUNTAIN ARTICLES AND BATTLE MOUNTAIN BYLAWS.
The Battle Mountain Articles and the Battle Mountain Bylaws set the number of
directors at a minimum of three and a maximum of 12, as may be fixed from time
to time by resolution of the entire Board of Directors, and provide that the
membership of the classified Board of Directors shall be divided into three
classes, as nearly equal in number as possible, each of which serves for three
years, with the term of each class ending in a successive year. Under the Nevada
General Corporation Law (the "NGCL"), any director may be removed from office
upon the vote of stockholders representing not less than two-thirds of the
issued and outstanding capital stock entitled to voting power, unless a
corporation's articles require the concurrence of a larger percentage of the
stock entitled to voting power. As permitted by the NGCL, the Battle Mountain
Articles provide that a director may be removed from office without cause only
by the affirmative vote of the holders of not less than 80 percent of the number
of shares of Battle Mountain Common Stock then outstanding.
Pursuant to the Battle Mountain Articles, the vote of holders of 80
percent of the voting power of all stock of Battle Mountain entitled to vote in
elections of directors (excluding stock entitled so to be voted only upon the
happening of some contingency unless such contingency shall have occurred and is
continuing) is required for approval of, with certain exceptions, a merger or
consolidation of Battle Mountain with or into another corporation, a sale or
lease of all or substantially all the assets of Battle Mountain to another
corporation, person or entity and, under certain conditions, a sale or lease to
Battle Mountain of assets in exchange for voting securities (or securities
convertible into or exchangeable for voting securities) of Battle Mountain or
any of its subsidiaries, in each case where the other party to the transaction
is the beneficial owner, directly or indirectly, of 5 percent or more of the
outstanding shares of any class or series of voting stock of Battle Mountain. In
addition, for any transaction to be effected for which the foregoing 80 percent
vote is required, it is also required that such transaction be approved by a
majority of the outstanding voting power of the voting stock of Battle Mountain,
exclusive of the voting stock beneficially owned, directly or indirectly, by the
party whose interest in the transaction and stock ownership in Battle Mountain
gives rise to the requirement of the 80 percent vote. The foregoing requirements
described in this paragraph do not apply to a transaction if (i) the Board of
Directors of Battle Mountain has approved a memorandum of understanding with
respect to such transaction with the other party to the transaction prior to the
time the 5 percent beneficial ownership position is acquired or (ii) the
transaction is made with a corporation of which 50 percent or more of its
outstanding voting stock is beneficially owned, directly or indirectly, by
Battle Mountain.
As permitted by the NGCL, the Battle Mountain Articles provide that no
action may be taken by stockholders without a meeting except by the unanimous
written consent of all stockholders
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entitled to vote on such action. Special meetings of stockholders may be called
only by a majority of the Board of Directors, the Chairman of the Board or the
President of Battle Mountain.
The Battle Mountain Articles require approval of at least 80 percent of
the total voting power of the voting stock of Battle Mountain and approval of
the holders of at least a majority of the voting power of the voting stock of
Battle Mountain exclusive of all voting stock of Battle Mountain owned by
beneficial owners of 5 percent or more of the outstanding shares of any class or
series of voting stock of Battle Mountain to effect an amendment or repeal of,
or the adoption of any provision inconsistent with, the provisions of such
articles relating to (i) the alteration, amendment or repeal of the Battle
Mountain Bylaws by stockholders, (ii) the organization and powers of the Board
of Directors and the nomination, election and removal of directors, (iii)
stockholder action without meetings and the calling of special stockholder
meetings or (iv) the affirmative vote required for approval of the transactions
described in the preceding paragraph between Battle Mountain and beneficial
owners of 5 percent or more of the outstanding shares of any class or series of
voting stock of Battle Mountain. The Battle Mountain Articles also require the
same affirmative vote for the amendment or repeal of the foregoing provision.
The Battle Mountain Articles and the Battle Mountain Bylaws provide that
the Bylaws may be altered, amended or repealed by the stockholders only by the
affirmative vote of at least 80 percent of the voting power of all shares of
Battle Mountain represented at any regular meeting of stockholders (or at any
special meeting thereof duly called for that purpose) and entitled to vote
generally in the election of directors, voting together as a class.
The ability of the Board of Directors to determine the preferences,
relative rights, qualifications and restrictions of the Preferred Stock and to
issue Preferred Stock without stockholder approval could have an antitakeover
effect.
The Board of Directors has adopted a preferred stock purchase rights
plan which has an antitakeover effect. See "--Battle Mountain Preferred Stock
- --Series A Preferred Stock" for a description of the plan.
Battle Mountain's committed revolving credit facility provides that it
is an event of default thereunder if (a) any person or group acquires beneficial
ownership of 20 percent or more of the voting stock of Battle Mountain or (b)
during any period of up to 24 consecutive months, individuals who at the
beginning of such 24-month period were directors of Battle Mountain cease for
any reason to constitute a majority of the Board of Directors of Battle
Mountain. (This provision does not apply to the acquisition by Noranda of
Exchangeable Shares as provided in the Combination Agreement or the change in
composition of Battle Mountain's Board of Directors that occurred upon
consummation of the Combination Agreement.)
NEVADA CORPORATION LAW. Sections 78.378 ET SEQ. of the NGCL generally
disallow the exercise of voting rights with respect to "control shares" of an
"issuing corporation" held by an "acquiring person," unless such voting rights
are conferred by a majority vote of the disinterested
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stockholders. "Control shares" are the voting shares of an issuing corporation
acquired in connection with the acquisition of a "controlling interest."
"Controlling interest" is defined in terms of threshold levels of voting share
ownership, which thresholds, whenever each may be crossed, trigger application
of the voting bar with respect to the shares newly acquired. The issue of voting
rights is presented at the next annual or special meeting of stockholders after
the acquisition in question, unless a special meeting of stockholders is
requested sooner by the acquiring person. At such meeting, the votes of an
"interested stockholder" are not counted towards the majority approval
requirement under this statute. In the event that the control shares are
accorded full voting rights (but only if the acquiring person has acquired a
majority voting interest in the issuing corporation), any stockholder, other
than the acquiring person, who has not voted in favor of authorizing voting
rights for the control shares is entitled to demand payment for the fair value
of his shares. Such right of payment may, however, be expressly withdrawn by the
corporate charter or bylaws. Any charter or bylaw amendment withdrawing such
right must be adopted prior to the 10th day following the acquisition of a
controlling interest. In the event that the control shares are not accorded full
voting rights, the issuing corporation may call for redemption of all, but not
less than all, of the control shares at the average price paid for such shares,
but only if the corporate charter or bylaws expressly permit such redemption.
Any charter or bylaw amendment providing for such right of redemption must be
adopted prior to the 10th day following the acquisition of a controlling
interest. Battle Mountain's bylaws were amended in connection with the
consummation of the Combination Agreement to provide that provisions of the NGCL
described in this paragraph do not apply to the acquisition by Noranda of up to
65,242,526 Exchangeable Shares or shares of Battle Mountain Common Stock in the
Arrangement (including shares of Battle Mountain Common Stock issuable upon
exchange for or redemption of such Exchangeable Shares).
Battle Mountain is subject to Sections 78.411, ET SEQ. of the NGCL,
which generally prohibit a publicly held Nevada corporation from engaging in any
"combination" with an "interested stockholder" for three years after the date
the interested stockholder became an interested stockholder unless, prior to
that date, either the combination or the purchase of shares that resulted in the
interested stockholder becoming such is approved by the board of directors of
the corporation. An "interested stockholder" is a person who, together with
affiliates and associates, is the beneficial owner (or within the previous three
years was the beneficial owner) of 10 percent or more of the voting power of the
corporation's outstanding voting shares. A "business combination" generally
includes mergers, asset sales and share issuances above threshold sizes, and
certain other transactions resulting in financial benefit to the interested
stockholder. Even after the expiration of the three-year period in which such
business combinations with an interested stockholder are prohibited, a
corporation may not engage in a business combination with an interested
stockholder unless, in addition to meeting applicable requirements of the
corporation's articles of incorporation, either (1) the combination is approved
by the affirmative vote of a majority of the outstanding voting power of the
corporation not beneficially owned by the interested stockholder (or affiliates
or associates) at a meeting called for that purpose not earlier than the end of
such three-year period or (2) certain requirements for the minimum consideration
payable to holders other than the disinterested holder are met (based on the
higher of (a) the highest price per share paid by the interested stockholder
within prescribed periods and (b) the market value per share on the date of
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announcement of the transaction or the date the interested stockholder became
such (in each case plus an amount based on an interest factor net of certain
dividends) and (c) in the case of a class other than common stock, the highest
preferential amount payable upon liquidation).
DIRECTOR AND OFFICER LIABILITY PROVISIONS. The Battle Mountain Articles
eliminate the personal liability of each director and officer of Battle Mountain
to Battle Mountain or any of its stockholders for damages resulting from
breaches of fiduciary duty as a director or officer involving any act or
omission of any such director or officer occurring on or after April 28, 1987.
The Battle Mountain Articles do not limit or eliminate the liability of a
director or officer for actions or omissions involving intentional misconduct,
fraud, a knowing violation of law or payment of an unlawful dividend.
DESCRIPTION OF BATTLE MOUNTAIN CANADA
SHARE CAPITAL
GENERAL
On July 19, 1996, pursuant to the terms of a plan of arrangement (the
"Plan of Arrangement") under section 182 of the Business Corporations Act
(Ontario) contemplated by the Combination Agreement, (i) Hemlo Gold changed its
name to Battle Mountain Canada Ltd., (ii) Battle Mountain Canada issued 100
common shares of Battle Mountain Canada ("Battle Mountain Canada Common Shares")
to Battle Mountain in exchange for 148 shares of Battle Mountain Common Stock
and (iii) Battle Mountain Canada issued 1.48 Exchangeable Shares in exchange for
each existing common share of Hemlo Gold (the "Hemlo Gold Common Shares") (other
than Hemlo Gold Common Shares held by Battle Mountain and by holders who
properly exercised their rights of dissent and are ultimately entitled to be
paid fair value for their shares).
Battle Mountain Canada is authorized to issue an unlimited number of
Battle Mountain Canada Common Shares, an unlimited number of its subordinate
shares ("Subordinate Shares"), an unlimited number of its preferred shares
("Preferred Shares") and an unlimited number of Exchangeable Shares.
The R-M Trust Company at its offices in Montreal, Toronto and Vancouver
is the transfer agent and registrar for Battle Mountain Canada.
The following description of certain rights, privileges, restrictions
and conditions attaching to the Battle Mountain Canada Common Shares, the Battle
Mountain Canada Preferred Shares, the Battle Mountain Canada Subordinate Shares
and the Exchangeable Shares is qualified in its entirety by reference to the
full text of the Articles of Amalgamation of Hemlo Gold dated January 1, 1995,
the Exchangeable Share provisions attached to the Plan of Arrangement (the
"Exchangeable Share Provisions"), the Voting, Support and Exchange Trust
Agreement and the Rights Agreement dated
11
as of July 19, 1996 between Battle Mountain Canada and The R-M Trust Company,
which are included as exhibits to this Registration Statement and are
incorporated herein by reference.
BATTLE MOUNTAIN CANADA COMMON SHARES
The holders of Battle Mountain Canada Common Shares are entitled to
receive notice of and to attend all meetings of the shareholders of Battle
Mountain Canada and are entitled to one vote for each share held of record on
all matters submitted to a vote of holders of Battle Mountain Canada Common
Shares. Subject to the prior rights of the holders of Exchangeable Shares and
any other shares ranking senior to the Common Shares with respect to priority in
the payment of dividends, the holders of Battle Mountain Canada Common Shares
are entitled to receive such dividends as may be declared by the Battle Mountain
Canada Board of Directors out of funds legally available therefor. Holders of
Battle Mountain Canada Common Shares are entitled upon any liquidation,
dissolution or winding up of Battle Mountain Canada, subject to the prior rights
of the holders of the Exchangeable Shares and to any other shares ranking senior
to the Battle Mountain Canada Common Shares, to receive the remaining property
and assets of Battle Mountain Canada.
BATTLE MOUNTAIN CANADA PREFERRED SHARES
The Preferred Shares of Battle Mountain Canada are issuable in series.
The directors are empowered to fix the number of shares in and the designation
and attributes of each series.
BATTLE MOUNTAIN CANADA SUBORDINATE SHARES
The Subordinate Shares of Battle Mountain Canada are issuable in series.
The directors are empowered to fix the number of shares in and the designation
and attributes of each series. The Subordinate Shares of Battle Mountain Canada
rank junior to the Exchangeable Shares to the same extent as the Battle Mountain
Canada Common Shares.
BATTLE MOUNTAIN CANADA EXCHANGEABLE SHARES
DIVIDENDS. Holders of Exchangeable Shares are entitled to receive
dividends equivalent to dividends paid from time to time by Battle Mountain on
shares of Battle Mountain Common Stock, and are not otherwise entitled to
receive dividends. The declaration date, record date and payment date for
dividends on the Exchangeable Shares will be the same as that for the
corresponding dividends on the Battle Mountain Common Stock.
CERTAIN RESTRICTIONS. Except as provided in the next sentence, Battle
Mountain Canada will not without the approval of the holders of the Exchangeable
Shares as set forth below under "-- Amendment and Approval":
(a) pay any dividend on the Battle Mountain Canada Common Shares,
Subordinate Shares or any other shares ranking junior to the
Exchangeable Shares, other than
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stock dividends payable in Battle Mountain Canada Common Shares,
Subordinate Shares or any such other shares ranking junior to the
Exchangeable Shares, as the case may be;
(b) redeem, purchase or make any capital distribution in respect
of Battle Mountain Canada Common Shares, Subordinate Shares or any other
shares ranking junior to the Exchangeable Shares;
(c) redeem or purchase any other shares of Battle Mountain Canada
ranking equally with the Exchangeable Shares with respect to the payment
of dividends or on any liquidation distribution; or
(d) issue any shares other than (i) Exchangeable Shares, (ii)
Battle Mountain Canada Common Shares, (iii) Subordinate Shares, (iv)
Preferred Shares issuable in connection with the exercise of rights
associated with Exchangeable Shares having terms substantially the same
as the BMG Rights issued under the BMG Rights Agreement (as those terms
are defined below under "-Exchangeable Share Rights") and (v) any other
shares not ranking superior to the Exchangeable Shares.
The restrictions in clauses (a), (b) and (c) above will not apply at any
time when the dividends on the outstanding Exchangeable Shares corresponding to
dividends declared on the Battle Mountain Common Stock have been declared and
paid in full.
LIQUIDATION OF BATTLE MOUNTAIN CANADA. In the event of the liquidation,
dissolution or winding up of Battle Mountain Canada or any other proposed
distribution of the assets of Battle Mountain Canada among its shareholders for
the purpose of winding up its affairs, a holder of Exchangeable Shares is
entitled to receive from Battle Mountain Canada for each Exchangeable Share on
the effective date of such liquidation, dissolution or winding up (the
"Liquidation Date") an amount to be satisfied by issuance of one share of Battle
Mountain Common Stock, plus an additional amount equivalent to the full amount
of all declared and unpaid dividends on such Exchangeable Share (the
"Liquidation Amount") .
On or after the Liquidation Date, a holder of Exchangeable Shares may
surrender certificates representing such Exchangeable Shares, together with such
other documents as may be required, to Battle Mountain Canada's registered
office or the office of the transfer agent. Upon receipt of the certificates and
other documents and subject to the exercise by Battle Mountain and Battle
Mountain Canada Holdco, Inc., an indirect wholly owned subsidiary of Battle
Mountain ("Battle Mountain Sub"), of its Liquidation Call Right described below,
Battle Mountain Canada will deliver the Liquidation Amount to such holder at the
address recorded in the securities register or by holding the Liquidation Amount
for pick up by the holder at Battle Mountain Canada's registered office or the
office of the transfer agent, as specified by Battle Mountain Canada in a notice
to such holders.
Upon the occurrence of a liquidation, dissolution or winding up of
Battle Mountain Canada, Battle Mountain and Battle Mountain Sub have the right
(the "Liquidation Call Right") to purchase
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all but not less than all of the Exchangeable Shares then outstanding (other
than Exchangeable Shares held by Battle Mountain, Battle Mountain Sub or a
single wholly owned subsidiary of Battle Mountain incorporated under the federal
laws of Canada or a province thereof ("Canada Holdco")) at a purchase price per
share equal to the Liquidation Amount and, upon the exercise of the Liquidation
Call Right, the holders thereof will be obligated to sell such shares to Battle
Mountain or Battle Mountain Sub, as applicable. The purchase by Battle Mountain
or Battle Mountain Sub of all of the outstanding Exchangeable Shares upon the
exercise of the Liquidation Call Right will occur on the Liquidation Date.
The Liquidation Call Right may, in general, be exercised, at the
election of Battle Mountain, by either Battle Mountain or Battle Mountain Sub,
but with respect to a holder who acquires in the Arrangement Exchangeable Shares
that are exchangeable into more than 5 percent of the number of shares of Battle
Mountain Common Stock outstanding at 12:01 a.m. (Toronto time) on the effective
date of the Arrangement (the "Effective Date") and who have properly requested
that Battle Mountain enter into a tax cooperation agreement pursuant to the
Combination Agreement (an "Initial 5 Percent Holder"), may be exercised only by
Battle Mountain Sub unless certain conditions have occurred.
Upon the occurrence of a Battle Mountain Canada Insolvency Event, the
Trustee under the Voting, Support and Exchange Trust Agreement on behalf of the
holders of Exchangeable Shares has the right to require Battle Mountain to
purchase any or all of the Exchangeable Shares then outstanding (other than
Exchangeable Shares held by Battle Mountain and certain of its subsidiaries) for
the Liquidation Amount as described under "-- Voting, Support and Exchange Trust
Agreement -- Optional Exchange Right in case of a Battle Mountain Canada
Insolvency Event." A "Battle Mountain Canada Insolvency Event" is the
institution by Battle Mountain Canada of any proceeding to be adjudicated a
bankrupt or insolvent or to be dissolved or wound up, or the consent of Battle
Mountain Canada to the institution of bankruptcy, insolvency, dissolution or
winding-up proceedings against it, or the filing of a petition, answer or
consent seeking dissolution or winding up under any bankruptcy, insolvency or
analogous laws, including without limitation the Companies Creditors'
Arrangement Act (Canada) and the Bankruptcy and Insolvency Act (Canada), and the
failure by Battle Mountain Canada to contest in good faith any such proceedings
commenced in respect of Battle Mountain Canada within 15 days of becoming aware
thereof, or the consent by Battle Mountain Canada to the filing of any such
petition or to the appointment of a receiver, or the making by Battle Mountain
Canada of a general assignment for the benefit of creditors, or the admission in
writing by Battle Mountain Canada of its inability to pay its debts generally as
they become due, or Battle Mountain Canada not being permitted, pursuant to
solvency requirements of applicable law, to redeem any Exchangeable Shares
pursuant to the Exchangeable Share Provisions.
AUTOMATIC EXCHANGE ON LIQUIDATION OF BATTLE MOUNTAIN. Upon the
occurrence of a Battle Mountain Liquidation Event, Battle Mountain is required
to purchase each outstanding Exchangeable Share (other than Exchangeable Shares
held by Battle Mountain, Battle Mountain Sub or Canada Holdco) and holders of
Exchangeable Shares are required to sell the Exchangeable Shares held by them at
that time, in exchange for one share of Battle Mountain Common Stock for each
14
such Exchangeable Share, plus an additional amount equivalent to the full amount
of all declared and unpaid dividends on the Exchangeable Share, on the fifth
business day prior to the effective date of the liquidation, dissolution or
winding up contemplated by a Battle Mountain Liquidation Event. A "Battle
Mountain Liquidation Event" means (i) any determination by Battle Mountain's
Board of Directors to institute voluntary liquidation, dissolution or winding-up
proceedings with respect to Battle Mountain or to effect any other distribution
of assets of Battle Mountain among its stockholders for the purpose of winding
up its affairs or (ii) receipt by Battle Mountain of notice of, or Battle
Mountain otherwise becoming aware of, any threatened or instituted claim, suit,
petition or other proceeding with respect to the involuntary liquidation,
dissolution or winding up of Battle Mountain or to effect any other distribution
of assets of Battle Mountain among its stockholders for the purpose of winding
up its affairs.
Upon a holder's request and surrender of Exchangeable Share
certificates, duly endorsed in blank and accompanied by such instruments of
transfer as Battle Mountain may reasonably require, Battle Mountain will deliver
to such holder certificates representing an equivalent number of shares of
Battle Mountain Common Stock plus a check in the amount equivalent to the full
amount of all declared and unpaid dividends on the Exchangeable Shares.
RETRACTION OF EXCHANGEABLE SHARES BY HOLDERS. A holder of Exchangeable
Shares is entitled at any time to require Battle Mountain Canada to redeem any
or all of the Exchangeable Shares held by such holder for a retraction price per
share to be satisfied by issuance of one share of Battle Mountain Common Stock,
plus an additional amount equivalent to the full amount of all declared and
unpaid dividends on the Exchangeable Shares, subject to the Retraction Call
Rights of Battle Mountain and Battle Mountain Sub described below. Holders of
the Exchangeable Shares may effect such retraction by presenting a certificate
or certificates to Battle Mountain Canada or its transfer agent representing the
number of Exchangeable Shares the holder desires to retract, together with a
duly executed statement (the "Retraction Request") specifying the number of
Exchangeable Shares the holder wishes to retract and such other documents as may
be required to effect the retraction of the Exchangeable Shares. The retraction
will become effective five business days after the date on which Battle Mountain
Canada receives the Retraction Request from the holder (the "Retraction Date").
When a holder requests Battle Mountain Canada to redeem the Exchangeable
Shares, Battle Mountain or Battle Mountain Sub has an overriding right (the
"Retraction Call Right") to purchase all but not less than all of the
Exchangeable Shares that the holder has requested Battle Mountain Canada to
redeem at a purchase price per share equal to one share of Battle Mountain
Common Stock, plus an additional amount equivalent to the full amount of all
declared and unpaid dividends on the Exchangeable Share (the "Retraction
Price").
At the time of a Retraction Request by a holder of Exchangeable Shares,
Battle Mountain Canada will immediately notify Battle Mountain and Battle
Mountain Sub. Battle Mountain or Battle Mountain Sub must then advise Battle
Mountain Canada within two business days as to whether the Retraction Call Right
will be exercised. If either Battle Mountain or Battle Mountain
15
Sub so advises Battle Mountain Canada within such two business day period,
Battle Mountain Canada will notify the holder as soon as possible thereafter
that the Retraction Call Right will be exercised. A holder may revoke his or her
Retraction Request at any time prior to the close of business on the business
day preceding the Retraction Date, in which case the holder's Exchangeable
Shares will neither be purchased by Battle Mountain or Battle Mountain Sub nor
be redeemed by Battle Mountain Canada. If the holder does not revoke his or her
Retraction Request, on the Retraction Date the Exchangeable Shares that the
holder has requested Battle Mountain Canada to redeem will be purchased by
Battle Mountain or Battle Mountain Sub or redeemed by Battle Mountain Canada, as
the case may be, in each case at a purchase price per share equal to one share
of Battle Mountain Common Stock, plus an additional amount equivalent to the
full amount of all declared and unpaid dividends on the Exchangeable Share.
The Retraction Call Right may, in general, be exercised, at the election
of Battle Mountain, by either Battle Mountain or Battle Mountain Sub, but with
respect to an Initial 5 Percent Holder, may be exercised only by Battle Mountain
Sub unless certain conditions have occurred.
If, as a result of solvency provisions of applicable law, Battle
Mountain Canada is not permitted to redeem all Exchangeable Shares tendered by a
retracting holder, Battle Mountain Canada will redeem only those Exchangeable
Shares tendered by the holder (rounded down to a whole number of shares) as
would not be contrary to such provisions of applicable law. The holder of any
Exchangeable Shares not redeemed by Battle Mountain Canada will be deemed to
have required Battle Mountain to purchase such unretracted shares in exchange
for Battle Mountain Common Stock on the retraction date pursuant to the optional
exchange right (the "Exchange Right") granted to the Trustee for the use and
benefit of the holders of the Exchangeable Shares pursuant to the Voting,
Support and Exchange Trust Agreement to require Battle Mountain to exchange
Exchangeable Shares for shares of Battle Mountain Common Stock, plus an
additional amount equivalent to any declared and unpaid dividends on such
Exchangeable Shares, upon the occurrence of a Battle Mountain Canada Insolvency
Event. See "-- Voting, Support and Exchange Trust Agreement -- Optional Exchange
Right in case of a Battle Mountain Canada Insolvency Event."
REDEMPTION OF EXCHANGEABLE SHARES. Subject to applicable law and the
Redemption Call Right of Battle Mountain or Battle Mountain Sub described below,
on any date on or after July 31, 2003 established by the Battle Mountain Canada
Board of Directors for the redemption of the Exchangeable Shares pursuant to the
Exchangeable Share Provisions or such earlier date as established for such
purpose by the Battle Mountain Canada Board of Directors if there are fewer than
5,000,000 Exchangeable Shares outstanding (other than Exchangeable Shares held
by Battle Mountain and its direct and indirect subsidiaries and subject to
adjustment to such number of shares to reflect permitted changes to Exchangeable
Shares) (the "Optional Redemption Date"), Battle Mountain Canada will redeem all
but not less than all of the then outstanding Exchangeable Shares for a
redemption price per share equal to one share of Battle Mountain Common Stock,
plus an additional amount equivalent to the full amount of all declared and
unpaid dividends on the Exchangeable Shares (the "Redemption Price"). Battle
Mountain Canada will, at least 120 days prior to the relevant Optional
Redemption Date, provide the registered holders of the Exchangeable
16
Shares with written notice of the proposed redemption of the Exchangeable Shares
by Battle Mountain Canada. On or after the Optional Redemption Date, upon the
holder's presentation and surrender of the certificates representing the
Exchangeable Shares and such other documents as may be required at the office of
the transfer agent or the registered office of Battle Mountain Canada, Battle
Mountain Canada will deliver the Redemption Price to the holder at the address
of the holder recorded in the securities register or by holding the Redemption
Price for pick up by the holder at the registered office of Battle Mountain
Canada or the office of the transfer agent as specified in the written notice.
Notwithstanding a proposed redemption of the Exchangeable Shares by
Battle Mountain Canada on an Optional Redemption Date pursuant to the
Exchangeable Share Provisions, Battle Mountain and Battle Mountain Sub have an
overriding right (the "Redemption Call Right"), to purchase on such Optional
Redemption Date all but not less than all of the Exchangeable Shares then
outstanding (other than Exchangeable Shares held by Battle Mountain, Battle
Mountain Sub or Canada Holdco) in exchange for the Redemption Price and, upon
the exercise of the Redemption Call Right, the holders thereof will be obligated
to sell such shares to Battle Mountain or Battle Mountain Sub, as applicable. If
either Battle Mountain or Battle Mountain Sub exercises the Redemption Call
Right, Battle Mountain Canada's right to redeem the Exchangeable Shares on such
Optional Redemption Date will terminate.
The Redemption Call Right may, in general, be exercised, at the election
of Battle Mountain, by either Battle Mountain or Battle Mountain Sub, but with
respect to an Initial 5 Percent Holder, may be exercised only by Battle Mountain
Sub unless certain conditions have occurred. If the Redemption Call Right is
exercised, Battle Mountain Canada may elect to redeem all then outstanding
Exchangeable Shares on a subsequent Optional Redemption Date.
VOTING RIGHTS. Except as required by applicable law, the holders of the
Exchangeable Shares are not entitled as such to receive notice of or attend any
meeting of the shareholders of Battle Mountain Canada or to vote at any such
meeting.
AMENDMENT AND APPROVAL. The rights, privileges, restrictions and
conditions attaching to the Exchangeable Shares may be changed only with the
approval of the holders thereof. Any such approval or any other approval or
consent to be given by the holders of the Exchangeable Shares will be
sufficiently given if given in accordance with applicable law and subject to a
minimum requirement that such approval or consent be evidenced by a resolution
passed by not less than two-thirds of the votes cast thereon (other than shares
beneficially owned by Battle Mountain, Battle Mountain Sub or any of their
direct or indirect subsidiaries) at a meeting of the holders of Exchangeable
Shares duly called and held at which holders of at least 50 percent of the then
outstanding Exchangeable Shares are present or represented by proxy. In the
event that no such quorum is present at such meeting within one-half hour after
the time appointed therefor, then the meeting will be adjourned to such place
and time (not less than 10 days later) as may be determined at the original
meeting and the holders of Exchangeable Shares present or represented by proxy
at the adjourned meeting will constitute a quorum thereat and may transact the
business for which the
17
meeting was originally called. At the adjourned meeting, a resolution passed by
the affirmative vote of not less than two-thirds of the votes cast thereon will
constitute the approval or consent of the holders of the Exchangeable Shares.
ACTIONS BY BATTLE MOUNTAIN CANADA UNDER VOTING, SUPPORT AND EXCHANGE
TRUST AGREEMENT. Under the Exchangeable Share Provisions, Battle Mountain Canada
has agreed to take all such actions and do all such things as are necessary or
advisable to perform and comply with its obligations under, and to ensure the
performance and compliance by Battle Mountain with its obligations under, the
Voting, Support and Exchange Trust Agreement.
VOTING, SUPPORT AND EXCHANGE TRUST AGREEMENT
The following is a summary description of the material provisions of the
Voting, Support and Exchange Trust Agreement and is qualified in its entirety by
reference to the full text of the Voting, Support and Exchange Trust Agreement,
which is included as an exhibit to this Registration Statement and is
incorporated herein by reference.
VOTING RIGHTS. Pursuant to the Voting, Support and Exchange Trust
Agreement, Battle Mountain has issued the Special Voting Share to the Trustee
for the benefit of the holders (other than Battle Mountain and certain
subsidiaries of Battle Mountain) of the Exchangeable Shares. The Special Voting
Share has a number of votes, which may be cast at any meeting at which Battle
Mountain stockholders are entitled to vote, equal to the number of outstanding
Exchangeable Shares (other than shares held by Battle Mountain and certain
subsidiaries of Battle Mountain). With respect to any written consent sought
from the Battle Mountain stockholders, the Special Voting Share will have a like
number of votes.
Each holder of an Exchangeable Share on the record date for any meeting
at which Battle Mountain stockholders are entitled to vote is entitled to
instruct the Trustee to exercise one of the votes attached to the Special Voting
Share for such Exchangeable Share. The Trustee will exercise each vote attached
to the Special Voting Share only as directed by the relevant holder and, in the
absence of instructions from a holder as to voting, will not exercise such
votes. A holder may, upon instructing the Trustee, obtain a proxy from the
Trustee entitling the holder to vote directly at the relevant meeting the votes
attached to the Special Voting Share to which the holder is entitled.
The Trustee will send to the holders of the Exchangeable Shares the
notice of each meeting at which the Battle Mountain stockholders are entitled to
vote, together with the related meeting materials and a statement as to the
manner in which the holder may instruct the Trustee to exercise the votes
attaching to the Special Voting Share, at the same time as Battle Mountain sends
such notice and materials to the Battle Mountain stockholders. The Trustee will
also send to the holders copies of all information statements, interim and
annual financial statements, reports and other materials sent by Battle Mountain
to the Battle Mountain stockholders at the same time as such materials are sent
to the Battle Mountain stockholders. To the extent such materials are provided
to the Trustee by Battle Mountain, the Trustee will also send to the holders all
materials sent by third
18
parties to Battle Mountain stockholders, including dissident proxy circulars and
tender and exchange offer circulars, as soon as possible after such materials
are first sent to Battle Mountain stockholders.
All rights of a holder of Exchangeable Shares to exercise votes attached
to the Special Voting Share will cease upon the exchange of all of such holder's
Exchangeable Shares for shares of Battle Mountain Common Stock.
OPTIONAL EXCHANGE RIGHT IN CASE OF A BATTLE MOUNTAIN CANADA INSOLVENCY
EVENT. Upon the occurrence and during the continuance of a Battle Mountain
Canada Insolvency Event, a holder of Exchangeable Shares is entitled to instruct
the Trustee to exercise the optional Exchange Right with respect to any or all
of the Exchangeable Shares held by such holder, thereby requiring Battle
Mountain to purchase such Exchangeable Shares from the holder. Immediately upon
the occurrence of a Battle Mountain Canada Insolvency Event or any event which
may, with the passage of time or the giving of notice, become a Battle Mountain
Canada Insolvency Event, Battle Mountain Canada and Battle Mountain will give
written notice thereof to the Trustee. As soon as practicable thereafter, the
Trustee will then notify each holder of Exchangeable Shares of such event or
potential event and will advise the holder of its rights with respect to the
optional Exchange Right.
The purchase price payable by Battle Mountain for each Exchangeable
Share to be purchased under the optional Exchange Right will be satisfied by
issuance of one share of Battle Mountain Common Stock plus an additional amount
equivalent to the full amount of all declared and unpaid dividends on the
Exchangeable Share.
If, as a result of solvency provisions of applicable law, Battle
Mountain Canada is unable to redeem all of the Exchangeable Shares tendered for
retraction by a holder in accordance with the Exchangeable Share Provisions, the
holder will be deemed to have exercised the optional Exchange Right with respect
to the unredeemed Exchangeable Shares and Battle Mountain will be required to
purchase such shares from the holder in the manner set forth above.
BATTLE MOUNTAIN SUPPORT OBLIGATION. Under the Voting, Support and
Exchange Trust Agreement, Battle Mountain has agreed that: (i) it will not
declare or pay dividends on the Battle Mountain Common Stock unless Battle
Mountain Canada is able to and simultaneously pays an equivalent dividend on the
Exchangeable Shares; (ii) it will advise Battle Mountain Canada in advance of
the declaration of any dividend on the Battle Mountain Common Stock and ensure
that the declaration date, record date and payment date for dividends on the
Exchangeable Shares are the same as those for the Battle Mountain Common Stock
and that such dates will correspond with any requirement of the stock exchange
on which the Exchangeable Shares are then listed; (iii) it will ensure that the
record date for any dividend declared on the Battle Mountain Common Stock is not
less than 10 business days after the declaration date for such dividend or such
shorter period within which applicable law may be complied with; (iv) it will
take all actions and do all things necessary to ensure that Battle Mountain
Canada is able to pay to the holders of the Exchangeable Shares the equivalent
number of shares of Battle Mountain Common Stock plus any additional amount
equivalent to the full amount of all unpaid dividends on the Exchangeable Shares
in the event of a
19
liquidation, dissolution or winding up of Battle Mountain Canada, a retraction
request by a holder of Exchangeable Shares or a redemption of Exchangeable
Shares by Battle Mountain Canada; (v) it will not vote or otherwise take any
action or omit to take any action causing the liquidation, dissolution or
winding up of Battle Mountain Canada; and (vi) it will enable Battle Mountain
Canada to maintain a listing for the Exchangeable Shares on a Canadian stock
exchange.
The Voting, Support and Exchange Trust Agreement also provides that,
without the prior approval of Battle Mountain Canada and the holders of the
Exchangeable Shares as set forth under " -- Battle Mountain Canada Exchangeable
Shares -- Amendment and Approval," Battle Mountain will not distribute
additional shares of Battle Mountain Common Stock or rights to subscribe
therefor or other property or assets to all or substantially all holders of
shares of Battle Mountain Common Stock, nor change the Battle Mountain Common
Stock, unless the same or an economically equivalent distribution on, change to
or offer for the Exchangeable Shares (or in the rights of the holders thereof)
is made simultaneously. The Battle Mountain Canada Board of Directors is
conclusively empowered to determine in good faith and in its sole discretion
whether any corresponding distribution on or change to the Exchangeable Shares
is the same as or economically equivalent to any proposed distribution on or
change to the Battle Mountain Common Stock. In the event of any proposed tender
offer, share exchange offer, issuer bid, take-over bid or similar transaction
affecting the Battle Mountain Common Stock, Battle Mountain will use reasonable
efforts to take all actions necessary or desirable to enable holders of
Exchangeable Shares to participate in such transaction to the same extent and on
an economically equivalent basis as the holders of Battle Mountain Common Stock.
The Voting, Support and Exchange Trust Agreement also provides that, as
long as any outstanding Exchangeable Shares are owned by any person or entity
other than Battle Mountain, Battle Mountain Sub or any of their subsidiaries,
Battle Mountain will, unless approval to do otherwise is obtained from the
holders of the Exchangeable Shares, remain the direct or indirect beneficial
owner of at least 50.1% of all issued and outstanding securities of Battle
Mountain Canada having voting rights (excluding the Exchangeable Shares).
With the exception of administrative changes for the purpose of adding
covenants for the protection of the holders of the Exchangeable Shares, making
certain necessary amendments or curing ambiguities or clerical errors (in each
case provided that the board of directors of each of Battle Mountain, Battle
Mountain Canada and the Trustee and its counsel are of the opinion that such
amendments are not prejudicial to the interests of the holders of the
Exchangeable Shares), the Voting, Support and Exchange Trust Agreement may not
be amended without the approval of the holders of the Exchangeable Shares as set
forth under " -- Battle Mountain Canada Exchangeable Shares -- Amendment and
Approval."
Under the Voting, Support and Exchange Trust Agreement, Battle Mountain
has agreed not to exercise any voting rights attached to the Exchangeable Shares
owned by it or any of its direct or indirect subsidiaries on any matter
considered at meetings of holders of Exchangeable Shares
20
(including any approval sought from such holders in respect of matters arising
under the Voting, Support and Exchange Trust Agreement).
DELIVERY OF BATTLE MOUNTAIN COMMON STOCK. Battle Mountain will ensure
that all shares of Battle Mountain Common Stock to be delivered by it or Battle
Mountain Sub under the Voting, Support and Exchange Trust Agreement or the Plan
of Arrangement are duly registered, qualified or approved under applicable
Canadian and United States securities laws, if required, so that such shares may
be freely traded by the holders thereof (other than any restriction on transfer
by reason of a holder being a "control person" of Battle Mountain Canada for
purposes of Canadian law or an "affiliate" of Battle Mountain or, prior to the
Effective Date, of Hemlo Gold for purposes of United States law). In addition,
Battle Mountain will take all actions necessary to cause all such shares of
Battle Mountain Common Stock to be listed or quoted for trading on all stock
exchanges or quotation systems on which outstanding shares of Battle Mountain
Common Stock are then listed or quoted for trading.
EXCHANGEABLE SHARE RIGHTS
Each Exchangeable Share issued upon consummation of the Plan of
Arrangement has associated with it one Right (a "Right"). Rights are also
issuable in respect of all Exchangeable Shares issuable after such consummation
but prior to the earliest of (i) the Distribution Date referred to in the next
paragraph, (ii) the date on which the Rights are redeemed as provided below and
(iii) November 10, 1998. Each Right entitles the registered holder to purchase
from Battle Mountain Canada one Exchangeable Share at a purchase price of
U.S.$60, subject to adjustment (the "Purchase Price"). As provided in the
Combination Agreement, the Rights are intended to provide rights to acquire
additional Exchangeable Shares (or in certain circumstances other securities) on
terms substantially the same as the BMG Rights attached to each outstanding
share of Battle Mountain Common Stock confer the right to acquire shares of
Series A Preferred Stock of Battle Mountain (or in certain circumstances Battle
Mountain Common Stock or other securities), in accordance with the BMG Rights
Agreement.
Rights are now attached to all certificates representing outstanding
Exchangeable Shares. The Rights will separate from the Exchangeable Shares and a
"Distribution Date" will occur upon the occurrence of a "Distribution Date"
under the corresponding provisions of the BMG Rights Agreement. See "Description
of Battle Mountain Capital Stock -- Battle Mountain Preferred Stock -- Series A
Preferred Stock." The Rights are not exercisable until the Distribution Date and
will expire at the close of business on November 10, 1998, unless earlier
redeemed by Battle Mountain Canada as described below.
In the event an adjustment is made under the BMG Rights Agreement as a
result of (i) Battle Mountain being the surviving corporation in a merger with
an "Acquiring Person" (as that term is used above under "Description of Battle
Mountain Capital Stock -- Battle Mountain Preferred Stock -- Series A Preferred
Stock") under circumstances in which the Battle Mountain Common Stock is not
changed or exchanged, (ii) a person becoming the beneficial owner of 30 percent
or more of
21
the then outstanding shares of Battle Mountain Common Stock (except pursuant to
a tender or exchange offer for all outstanding shares of Battle Mountain Common
Stock at a price and on terms that a majority of the independent directors of
Battle Mountain determines to be fair to and otherwise in the best interests of
Battle Mountain and its shareholders), (iii) an Acquiring Person engaging in one
or more "self-dealing" transactions as set forth in the BMG Rights Agreement or
(iv) during such time as there is an Acquiring Person, an event involving Battle
Mountain or a subsidiary of Battle Mountain occurring that results in such
Acquiring Person's ownership interest being increased by more than one percent
(E.G., a reverse stock split), at any time following the Distribution Date, a
corresponding and economically equivalent adjustment will at the same time be
made to the Rights such that each holder of a Right will thereafter have the
right to receive, upon exercise, such number of Exchangeable Shares (or, in
certain circumstances, cash, property or other securities) having a value equal
to two times the exercise price of a Right. Notwithstanding any of the
foregoing, following the occurrence of any of the events set forth in this
paragraph, all Rights that are, or (under certain circumstances specified in the
Rights Agreement dated as of July 19, 1996 between Battle Mountain Canada and
The R-M Trust Company) were, beneficially owned by any Acquiring Person (or by
certain related parties) will be null and void. However, Rights are not
exercisable following the occurrence of any of the events set forth above until
such time as the BMG Rights are no longer redeemable as described above under
"Description of Battle Mountain Capital Stock -- Battle Mountain Preferred Stock
- -- Series A Preferred Stock."
In the event that, on or after the Stock Acquisition Date as that term
is defined above under "Descriptions of Battle Mountain Capital Stock -- Battle
Mountain Preferred Stock -- Series A Preferred Stock" an adjustment is made
under the BMG Rights Agreement as a result of (i) Battle Mountain being acquired
in a merger or other business combination transaction (other than a merger
described in the preceding paragraph or a merger which follows an offer
described in the preceding paragraph) or (ii) 50 percent or more of Battle
Mountain's assets or earning power being sold or transferred, each holder of a
Right (except Rights which previously have been voided as set forth above) will
thereafter have the right to receive, upon exercise, common shares of the
acquiring company having a value equal to two times the exercise price of the
Right.
At such time as the BMG Rights are redeemed pursuant to the BMG Rights
Agreement, Battle Mountain Canada is required to redeem all the then outstanding
Rights at a price of U.S.$0.01 per Right, payable, at the option of Battle
Mountain Canada, in cash, Exchangeable Shares or such other consideration as the
Battle Mountain Canada Board of Directors may determine. The Rights may have
certain anti-takeover effects, including deterring someone from acquiring
control of Battle Mountain in a manner or on terms not approved by the Battle
Mountain Board of Directors. The Rights should not interfere with any merger or
other business combination approved by the Battle Mountain Board of Directors.
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ITEM 2. EXHIBITS
Item 2 of the Form 8-A of the Registrant is hereby amended to read in its
entirely as follows:
EXHIBIT
NUMBER EXHIBIT TITLE
*4(a)(1) Restated Articles of Incorporation of Battle Mountain, as amended
and restated through May 11, 1988 (Exhibit 4(a)(1) to Battle
Mountain's Current Report on Form 8-K dated July 19, 1996; File
No. 1-9666).
*4(a)(2) Certificate of Amendment to Restated Articles of Incorporation of
Battle Mountain filed with the Secretary of State of the State of
Nevada on July 19, 1996 (Exhibit 4(a)(2) to Battle Mountain's
Current Report on Form 8-K dated July 19, 1996; File No. 1-9666).
*4(b) Certificate of Resolution Establishing Designation, Preferences
and Rights of $3.25 Convertible Preferred Stock (Exhibit 4(b) to
Battle Mountain's Current Report on Form 8-K dated July 19, 1996;
File No. 1-9666).
*4(c) Certificate of Amendment of Certificate of Resolution
Establishing Designation, Preferences and Rights of Series A
Junior Participating Preferred Stock (Exhibit 4(c) to Battle
Mountain's Current Report on Form 8-K dated July 19, 1996; File
No. 1- 9666).
*4(d) Bylaws of Battle Mountain as amended through July 19, 1996
(Exhibit 4(d) to Battle Mountain's Current Report on Form 8-K
dated July 19, 1996; File No. 1-9666).
*4(e) Rights Agreement, dated November 10, 1988, as amended and
restated as of July 19, 1996, between Battle Mountain and The
Bank of New York, as Rights Agent (Exhibit 4(e) to Battle
Mountain's Current Report on Form 8-K dated July 19, 1996; File
No. 1-9666).
*4(f) Articles of Amalgamation of Hemlo Gold dated January 1, 1995
(Exhibit 4(f) to Battle Mountain Canada's Registration Statement
on Form 8-A dated August 23, 1996; File No. 1-10943).
*4(g) Plan of Arrangement of Hemlo Gold under Section 182 of the
Business Corporations Act (Ontario) (Annex D to Exhibit 20(a),
Joint Management Information Circular and Proxy Statement, to
Battle Mountain's Current Report on Form 8-K dated June 11, 1996;
File No 1-9666).
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*4(h) Bylaws of Battle Mountain Canada dated December 16, 1986
(Exhibit 4(h) to Battle Mountain Canada's Registration Statement
on Form 8-A dated August 23, 1996; File No. 1-10943).
*4(i) Rights Agreement, dated July 19, 1996, between Battle Mountain
Canada and The R-M Trust Company, as Rights Agent (Exhibit 4(f)
to Battle Mountain's Current Report on Form 8-K dated July 19,
1996; File No. 1-9666).
*4(j) Voting, Support and Exchange Trust Agreement dated as of July 19,
1996 between Battle Mountain, Hemlo Gold and The R-M Trust
Company (Annex E to Exhibit 20(a), Joint Management Information
Circular and Proxy Statement, to Battle Mountain's Current Report
on Form 8-K dated June 11, 1996; File No. 1-9666).
*4(k) Specimen Stock Certificate for the Common Stock of Battle
Mountain (Exhibit 4(b) to Battle Mountain's Annual Report on Form
10-K for the fiscal year ended December 31, 1988; File No.
1-9666).
*4(l) Specimen Stock Certificate for the Exchangeable Shares of Battle
Mountain Canada (Exhibit 4(l) to Battle Mountain Canada's
Registration Statement on Form 8-A dated August 23, 1996; File
No. 1-10943).
*4(m) Specimen Voting Stock Certificate for the Special Voting Stock of
Battle Mountain (Exhibit 4(m) to Battle Mountain Canada's
Registration Statement on Form 8-A dated August 23, 1996; File
No. 1-10943).
- -------------------------------
* Incorporated by reference as indicated pursuant to Rule 12b-32.
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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 its Registration
Statement to be signed on its behalf by the undersigned, thereto duly
authorized.
BATTLE MOUNTAIN GOLD COMPANY
Date: August 26, 1996 By:/s/ ROBERT J. QUINN
Robert J. Quinn
Vice President and General Counsel
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