AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 1, 1998
REGISTRATION NO. 333-________
=========================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
----------------------
BATTLE MOUNTAIN GOLD COMPANY
(Exact name of registrant as specified in its charter)
NEVADA 76-0151431
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
GREG V. ETTER, ESQ.
333 CLAY STREET, 42ND FLOOR 333 CLAY STREET, 42ND FLOOR
HOUSTON, TEXAS 77002 HOUSTON, TEXAS 77002
(713) 650-6400 (713) 650-6400
(Address, including zip code, and (Name, address, including zip code,
telephone number, including area and telephone number, including area
code, of registrant's principal code, of agent for service)
executive offices)
COPIES TO:
B. SCOTT AITKEN
MAYOR, DAY, CALDWELL & KEETON, L.L.P.
700 LOUISIANA, SUITE 1900
HOUSTON, TEXAS 77002
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on the Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434
under the Securities Act of 1933, check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------
TITLE OF EACH CLASS AMOUNTS TO BE PROPOSED PROPOSED MAXIMUM AMOUNT
OF SECURITIES TO BE REGISTERED MAXIMUM OFFERING AGGREGATE OF
REGISTERED PRICE PER SHARE OFFERING PRICE REGISTRATION
FEE
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock(1) 65,242,526 Shares $6.85(2) $446,911,303(2) $131,839
- --------------------------------------------------------------------------------------------
</TABLE>
(1) Includes the preferred stock purchase rights associated with the Common
Stock.
(2) Estimated pursuant to Rule 457(c) solely for the purposes of computing the
registration fee based upon the average of the high and low prices of the
Common Stock, as reported on The New York Stock Exchange Composite Tape on
April 28, 1998.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
=========================================================================
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO CHANGE, COMPLETION OR AMENDMENT
WITHOUT NOTICE. A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE
SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION
STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO
SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY
SUCH STATE.
Subject to Completion, May 1, 1998
PROSPECTUS
65,242,526 SHARES
[LOGO]
BATTLE MOUNTAIN GOLD COMPANY
All of the shares of Common Stock (the "Common Stock") of Battle Mountain
Gold Company (collectively with its subsidiaries, "BMG" or the "Company")
offered hereby are being sold by Noranda Inc. ("Noranda") or one or more of its
wholly owned subsidaries (collectively with Noranda, the "Selling Shareholder").
Noranda beneficially, through a subsidary, owns, 65,242,256 exchangeable shares
(the "Exchangeable Shares") of Battle Mountain Canada Limited ("BMCL"). Each
Exchangeable Share is exchangeable, at the option of the holder thereof, into
one share of Common Stock. Prior to the public offering of Common Stock offered
hereby, the Selling Shareholder or any agent, underwriter or dealer through whom
the Common Stock is offered and sold, will exchange such Exchangeable Shares
into shares of Common Stock. See "Plan of Distribution". The Company will not
receive any of the proceeds from the sale of Common Stock offered hereby. The
Common Stock of the Company is listed on the New York Stock Exchange under the
symbol "BMG." The Exchangeable Shares are listed on The Toronto Stock Exchange
under the symbol "BMC." On April 30, 1998, the last reported sale price of the
Common Stock as reported on The New York Stock Exchange Composite Transactions
Tape was $7.1875 per share and the last reported sale price of the Exchangeable
Shares on The Toronto Stock Exchange was Cdn. $10.15.
The Common Stock offered pursuant to this Prospectus may be sold directly by
the Selling Shareholder or through underwriters, dealers or agents designated
from time to time. See "Plan of Distribution" and "Selling Shareholder". The
Selling Shareholder and any underwriters, dealers or agents which participate in
the distribution of the Common Stock offered hereby may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933, as amended (the
"Securities Act"), and any commission received by such underwriters, dealers or
agents and any profit on the resale of the Common Stock purchased by them may be
deemed to be underwriting commissions or discounts under the Securities Act. See
"Plan of Distribution" for a description of indemnification arrangements. If
required, the names of any such underwriters, dealers or agents involved in the
sale of the Common Stock offered hereby and the applicable commission, purchase
price or underwriter's discount, if any, will be set forth in an accompanying
supplement to this Prospectus (each, a "Prospectus Supplement") . The Selling
Shareholder will receive all of the net proceeds from the sale of the Common
Stock offered hereby and will pay all underwriting discounts and selling
commissions, if any, applicable to any such sales.
SEE "RISK FACTORS" ON PAGE 4 HEREIN FOR CERTAIN INFORMATION THAT SHOULD BE
CONSIDERED BY PROSPECTIVE INVESTORS.
----------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
----------------------
The date of this Prospectus is _______, 1998
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "SEC" or "Commission"). The reports,
proxy statements and other information may be inspected and copied at the
offices of the Commission at 450 Fifth Street, N.W., Washington, D.C., 20549 or
at its regional offices located in The Citicorp Center, Suite 1400, 500 West
Madison Street, Chicago, Illinois 60661 and Seven World Trade Center, Suite
1300, New York, New York 10048. Copies of such material also can be obtained
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C., 20549, at prescribed rates. In addition, the Commission
maintains a web site that contains reports, proxy and information statements and
other information regarding issuers that file electronically with the Commission
at HTTP://WWW.SEC.GOV. Reports, proxy statements and other information
concerning the Company may be inspected at the offices of The New York Stock
Exchange, 20 Broad Street, New York, New York, 10005.
The Company has filed under the Securities Act of 1933, as amended (the
"Securities Act"), a Registration Statement on Form S-3, including amendments
thereto, relating to the Common Stock offered hereby (the "Registration
Statement") with the Commission. This Prospectus does not contain all of the
information set forth in the Registration Statement and the exhibits and
schedules thereto, certain parts of which are omitted in accordance with rules
and regulations of the Commission. Statements contained in this Prospectus as to
the contents of any contract or other document referred to are not necessarily
complete, and in each instance reference is made to the copy of such contract or
other document filed as an exhibit to the Registration Statement or as
previously filed with the Commission and incorporated herein by reference. For
further information with respect to the Company and the Common Stock offered
hereby, reference is made to such Registration Statement, exhibits and
schedules. A copy of the Registration Statement may be inspected by anyone
without charge at the Commission's principal office at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and copies of all or any part thereof may be obtained
from the Commission upon payment of certain fees prescribed by the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's (i) Annual Report on Form 10-K for the year ended December 31,
1997 (the "1997 10-K") and (ii) Quarterly Report on Form 10-Q for the three
months ended March 31, 1998, as amended by the Company's Form 10-Q/A dated April
29, 1998 (the "1998 First Quarter 10-Q") are incorporated into this Prospectus
by reference and made a part hereof. In addition, (i) the description of the
Common Stock of the Company contained in the Company's Registration Statement on
Form 8-A dated August 12, 1987 (as amended by a Form 8 dated April 24, 1991 and
a Form 8-A/A dated August 25, 1996 ), (ii) the description of the preferred
stock purchase rights associated with the Common Stock of the Company contained
in the Company's Registration Statement on Form 8-A dated November 15, 1988 (as
amended by a Form 8 dated November 29, 1988 and Form 8-A/A dated August 26,
1996) and (iii) the audited Financial Statements of Lihir Gold Limited included
in Amendment No. 1 to the Company's Annual Report on Form 10-K for the year
ended December 31, 1996, are hereby incorporated herein by reference and shall
be deemed to be a part hereof.
Each document filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act, subsequent to the date of this Prospectus and prior
to the termination of the offering of Common Stock made hereby shall be deemed
to be incorporated herein by reference and to be a part hereof from the date of
filing of such document. Any statement contained herein or in a document all or
a portion of which is incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, on the oral or written request of any such person,
a copy of any or all of the foregoing documents incorporated herein by reference
(other than exhibits to such documents, unless such exhibits are specifically
incorporated by reference into such documents). Requests should be directed to
the Company at 333 Clay Street, 42nd Floor, Houston, Texas 77002, Attention:
Corporate Secretary (telephone: (713) 650-6400).
2
<PAGE>
SPECIAL NOTE ON FORWARD-LOOKING STATEMENTS
The U.S. securities laws provide a "safe harbor" for certain
forward-looking statements. This Prospectus contains forward-looking statements
that involve risks and uncertainties that could cause actual results to differ
materially from those projected in such forward-looking statements. Statements
regarding the expected commencement dates of mining operations, project
quantities of future production, capital costs, production rates, costs and
expenditures, and other operating and financial data are based on expectations
that the Company believes are reasonable, but can give no assurance that such
expectations will prove to have been correct. Factors that could cause actual
results to differ materially include, among others: risks and uncertainties
relating to general domestic and international economic and political
conditions, the cyclical and volatile prices of gold, silver and copper,
political and economic risks associated with foreign operations, unanticipated
ground and water conditions, unanticipated grade and geological problems,
metallurgical and other processing problems, availability of materials and
equipment, the delays in the receipt of or failure to receive necessary
governmental permits, changes in laws or regulations or the interpretation and
enforcement thereof, the occurrence of unusual weather or operating conditions,
force majeure events, lower than expected ore grades, the failure of equipment
or processes to operate in accordance with specifications or expectations, labor
relations, accidents, delays in anticipated start-up dates, environmental risks,
the results of financing efforts and financial market conditions. These and
other risk factors are discussed in more detail herein and the documents
incorporated herein by reference. For discussions of some of these risk factors,
see "Business and Properties - Gold Price Volatility", "--Certain Factors
Affecting Reserves, Foreign Investments and Properties", "--Property Interests",
"--Environmental Matters", "--Competition" and "Legal Proceedings" iN the 1997
10-K, as supplemented by the 1998 First Quarter 10-Q. Many of such factors are
beyond the Company's ability to control or predict. Readers are cautioned not to
put undue reliance on forward-looking statements. The Company disclaims any
intent or obligations to update these forward-looking statements, whether as a
result of new information, future events or otherwise.
THE COMPANY
Battle Mountain Gold Company, a Nevada corporation, and its subsidiaries
(collectively, the "Company" or "BMG") are engaged in the mining and processing
of gold and silver ore in the United States, Canada, Bolivia, Chile and
Australia and in the exploration, evaluation and development of precious metals
properties primarily in Latin America, Australia, West Africa, Canada and the
United States. The Company also has an equity-accounted investment in Lihir Gold
Limited ("LGL"), a Papua New Guinea public gold mining company traded
principally on the Australian Stock Exchange. BMG was incorporated in Nevada in
1985, is headquartered in Houston, Texas, and its common stock is traded
principally on the New York Stock Exchange.
On July 19, 1996, BMG combined with Hemlo Gold Mines Inc., an Ontario
corporation ("Hemlo Gold"). The combination was accounted for under the pooling
of interests method. Under the terms of the combination agreement, each Hemlo
Gold share was exchanged for 1.48 shares of a newly issued class of exchangeable
shares ("Exchangeable Shares") of Battle Mountain Canada Ltd. ("BMCL"), the new
name for the former Hemlo Gold, and BMG acquired all of the common shares of
BMCL. The Exchangeable Shares entitle holders to dividends and other rights
economically equivalent to BMG Common Stock, including the right through a
voting trust to vote at BMG stockholder meetings, and are exchangeable at the
option of holders into BMG Common Stock on a one-for-one basis. See "Description
of Exchangeable Shares of Battle Mountain Canada Ltd." under Item 5 of the 1997
10-K.
At December 31, 1997, the Company had six operating mines in five
countries and on three continents: the Battle Mountain Complex near Battle
Mountain, Nevada; the Golden Giant mine in Canada; the Holloway mine (in which
BMG has an 84.7% attributable interest) in Canada; the Kori Kollo mine (88%
attributable interest) in Bolivia; the San Cristobal mine (50.5% attributable
interest) in Chile; and the Pajingo Complex in Queensland, Australia (50%
attributable interest). Although the Company continues leaching activities at
the Battle Mountain Complex and San Cristobal mine, it ceased mining operations
at those locations subsequent to December 31, 1997. The Company also has an 8.7%
attributable net interest in the Lihir mine in Papua New Guinea through its
investment in LGL. Additionally, the Company has the right to earn a 54%
attributable interest in the Crown Jewel project in Washington State and has
plans to develop the Phoenix project at the Battle Mountain Complex. The Company
is also carrying out an international exploration and acquisition program for
additional reserve expansion.
3
<PAGE>
Commercial production began at the Vera/Nancy ore body at the Pajingo
Complex during the third quarter of 1997 and at the Lihir mine during the fourth
quarter of 1997. The Company ceased operations after the depletion of the ore
bodies at its Silidor mine in Canada in July 1997, at its San Cristobal mine in
Chile and Battle Mountain Complex in Nevada in January 1998, and at its Red Dome
mine in Australia in October 1997. The ore from the Silidor and Red Dome mines
has been completely processed; however, the ore from the San Cristobal mine and
the Battle Mountain Complex will continue to be processed into at least
mid-1998.
On September 30, 1997, BMG sold its interest in Niugini Mining Limited
("NML"), a Papua New Guinea company publicly traded on the Australian Stock
Exchange, to BMCL. BMCL now owns approximately 50.5% of NML. NML in turn owns
and operates the San Cristobal mine interest and owns a 17.15% interest in LGL,
which owns the Lihir mine.
BMG's corporate office is located at 333 Clay Street, 42nd Floor, Houston,
Texas 77002. Battle Mountain Canada, Ltd.'s corporate office is located at Royal
Trust Tower, Suite 2500, 77 King Street West, Toronto, Ontario, M5K 1J5 Canada
RISK FACTORS
IN ADDITION TO THE OTHER INFORMATION SET FORTH IN THIS PROSPECTUS AND THE
DOCUMENTS INCORPORATED HEREIN BY REFERENCE, PROSPECTIVE PURCHASERS OF THE COMMON
STOCK SHOULD CAREFULLY CONSIDER THE FOLLOWING RISK FACTORS IN EVALUATING AN
INVESTMENT IN THE SHARES OF COMMON STOCK OFFERED HEREBY. THIS PROSPECTUS AND THE
DOCUMENTS INCORPORATED HEREIN BY REFERENCE CONTAIN FORWARD-LOOKING STATEMENTS
WHICH INVOLVE CERTAIN ASSUMPTIONS, RISKS AND UNCERTAINTIES. THE COMPANY'S ACTUAL
RESULTS COULD DIFFER MATERIALLY FROM THOSE ANTICIPATED IN THESE FORWARD-LOOKING
STATEMENTS AS A RESULT OF CERTAIN FACTORS, INCLUDING THOSE SET FORTH IN THE
FOLLOWING RISK FACTORS AND ELSEWHERE IN THIS PROSPECTUS AND THE DOCUMENTS
INCORPORATED HEREIN BY REFERENCE. SEE "SPECIAL NOTE ON FORWARD-LOOKING
STATEMENTS" ABOVE.
For a discussion of certain of the risk factors that should be considered
in evaluating an investment in the Common Stock, see "Business and Properties
Gold Price Volatility", "--Certain Factors Affecting Reserves, Foreign
Investments and Properties", "--Property Interests", "--Environmental Matters",
"--Competition" and "Legal Proceedings" in the 1997 10-K, as supplemented by the
1998 First Quarter 10-Q.
USE OF PROCEEDS
None of the proceeds from the sale of the shares of Common Stock offered
hereby will be received by the Company.
4
<PAGE>
SELLING SHAREHOLDER
All of the shares of Common Stock being offered hereby are being
offered by the Selling Shareholder. As of the date hereof, Kerr Addison Mines
Limited, a wholly owned subsidary of Noranda ("Kerr Addison"), owns directly,
and Noranda owns beneficially through Kerr Addison, 65,242,526 Exchangeable
Shares (each of which is exchangeable, at the option of the holder, into one
share of Common Stock), constituting 28.4% of the outstanding shares of the
Common Stock of the Company (including all outstanding Exchangeable Shares).
Prior to the offering of the shares of Common Stock offered hereby, Noranda may
cause Kerr Addison to transfer the Exchangeble Shares to another direct or
indirect wholly owned subsidary of Noranda. Prior to the offering of any shares
of Common Stock hereunder, the Exchangeable Shares will be exchanged into shares
of Common Stock. If all of the 65,242,526 shares of Common Stock included in the
Registration Statement of which this Prospectus is a part are sold by the
Selling Shareholder, the Selling Shareholder will have disposed of its entire
interest in the Exchangeable Shares and the Common Stock
Noranda, through Kerr Addison, became the beneficial owner of the
Exchangeable Shares in connection with the Company's combination with Hemlo
Gold Mines Inc., in 1996 (the "Combination"). Prior to the Combination, Noranda
beneficially owned 44% of Hemlo Gold Mines Inc.'s outstanding common stock. As a
result of the Combination, Noranda, through its indirect ownership of the
Exchangeable Shares, became the Company's largest shareholder. In connection
with the Combination, the Company agreed to provide Noranda and Kerr Addison
with registration rights under U.S. law and secondary offering cooperation
rights under Canadian Law with respect to the Common Stock offered hereby and
the Exchangeable Shares. These rights include up to five "demand" and an
unlimited number of piggyback registrations. In connection with this offering,
the Selling Shareholder has agreed to pay all of its underwriting discounts and
commissions and all other fees and expenses of the offering. In connection with
this offering, the Company and the Selling Shareholder have agreed that the
Company will pay for the fees and expenses of its counsel and its accountants
and printing and engraving expenses associated with the offering of the shares
of Common Stock offered hereby, and that the Company will also pay 11.2% of (i)
the fee payable to the SEC to register the offering of the shares of Common
Stock offered hereby, (ii) fees and expenses associated with compliance with
Blue Sky laws and other state securities laws, (iii) transfer agent and
registrar fees of the offering of the shares of Common Stock offered hereby and
(iv) certain miscellaneous expenses of the offering of the shares of Common
Stock offered hereby. All other fees and expenses associated with the offering
of the shares of Common Stock offered hereby will be borne by the Selling
Shareholder.
Two of the Company's directors, David W. Kerr and David L. Bumstead are
officers and directors of Noranda and Mr. James W. McCutcheon, Q.C., a director
of the Company, is also a director of Noranda. Ms. Mary Mogford, a director of
the Company, is also a director of Falconbridge Inc., which is approximately
48% owned by Noranda.
5
<PAGE>
PLAN OF DISTRIBUTION
The Selling Shareholder may sell the Exchangeable Shares to one or more
underwriters, which underwriters will exchange the Exchangeable Shares into
Common Stock for offering and sale in the United States, Canada or elsewhere by
them. Alternatively, the Selling Shareholder may exchange the Exchangeable
Shares into Common Stock and sell the Common Stock to investors in the United
States, Canada or elsewhere directly or through agents. Such sales of Common
Stock may be effectuated in transactions (which may involve crosses or block
transactions) from time to time (i) on The New York Stock Exchange (ii) in
transactions otherwise than on the New York Stock Exchange, (iii) directly to a
single purchaser or a limited number of purchasers, (iv) through the writing and
exercise of options or warrants or (v) through any combination of the foregoing.
Prior to the offer and sale of the Common Stock to or through underwriters, the
Exchangeable Shares may be transferred to a newly created direct or indirectly
wholly owned subsidiary of Noranda. An underwriter will then purchase the stock
of such subsidiary and cause such subsidiary to sell the Exchangeable Shares or
Common Stock to the underwriters or will liquidate such subsidiary and sell
directly the Exchangeable Shares or Common Stock to the underwriters, who will
offer and sell the Common Stock (after exchange of the Exchangeable Shares). At
the time a particular offering of the Common Stock is made, a Prospectus
Supplement, if required, will be distributed which will set forth the aggregate
amount of any Common Stock being offered and the terms of the offering,
including the name or names of any underwriters, dealers or agents. The
Prospectus Supplement and, if necessary, a post-effective amendment to the
Registration Statement will be filed with the Securities and Exchange Commission
to reflect the disclosure of additional information with respect to the
distribution of the Common Stock. In addition, the Common Stock covered by this
Prospectus or the Exchangeable Shares (or options or warrants to acquire either
or installment receipts representing Exchangeable Shares or Common Stock to be
sold outside the United States) may be sold in private transactions or in other
transactions exempt from registration under the Securities Act concurrently with
or instead of offers and sales of Common Stock pursuant to this Prospectus.
The Common Stock may be offered and sold at a fixed price or prices, which
may be changed, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. In connection
with the sale of Common Stock, underwriters or agents may receive compensation
from the Selling Shareholder in the form of underwriting discounts, commissions
or concessions and may also receive commissions from purchasers of the Common
Stock for whom they may act as agent. Underwriters may sell the Common Stock to
or through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or commissions
from the purchasers for whom they may act as agent. Any discounts, commissions,
concessions or other compensation paid by the Selling Shareholder to
underwriters or agents in connection with the offering of Common Stock, and any
discounts, concessions or commissions allowed by underwriters to participating
dealers, will be set forth in the applicable Prospectus Supplement. The Selling
Shareholder and any underwriters, dealers and agents participating in the
distribution of Common Stock may be deemed to be underwriters within the meaning
of the Securities Act, and any discounts, commissions, concessions or other
compensation received by such underwriters, dealers or agents and any profit
realized by them on resale of the Common Stock may be deemed to be underwriting
discounts and commissions.
To facilitate an offering of Common Stock, certain persons participating
in the offering may engage in transactions that stabilize, maintain, or
otherwise affect the price of the Common Stock. This may include over-allotments
or short sales of the Common Stock, which involves the sale by persons
participating in the offering of more Common Stock than has been sold to them by
the Selling Shareholder. In such circumstances, such persons would cover such
over-allotments or short positions by purchasing in the open market. In
addition, such persons may stabilize or maintain the price of the Common Stock
by bidding for or purchasing Common Stock in the open market or by imposing
penalty bids, whereby selling concessions allowed to dealers participating in
any such offering may be reclaimed if Common Stock sold by them is repurchased
in connection with stabilization transactions. The effect of these transactions
may be to stabilize or maintain the market price of the Common Stock at a level
above that which might otherwise prevail in the open market. Such transactions,
if commenced, may be discontinued at any time.
The Selling Shareholder will be subject to applicable provisions of the
Exchange Act and the rules and regulations thereunder, which provisions may
limit the timing of purchases and sales of any of the Common Stock by the
Selling Shareholder.
The Selling Shareholder and underwriters, agents and dealers, if any, may,
under agreements entered into with the Company, be entitled to indemnification
by the Company against certain civil liabilities, including certain liabilities
under the Securities Act and securities legislation of certain provinces of
Canada, or may be entitled to contribution in connection therewith.
Certain of the underwriters or agents and their associates may be
customers of, engage in transactions and perform services for the Company in the
ordinary course of business.
CERTAIN LEGAL MATTERS
The validity of the Common Stock offered hereby will be passed upon for
the Company by Greg V. Etter, Esq., the Company's General Counsel and Secretary.
EXPERTS
The audited Consolidated Financial Statements and schedules of the Company
incorporated in this Prospectus by reference to the Company's annual report on
Form 10-K for the year ended December 31, 1997, except as they relate to the
consolidated financial statements of Hemlo Gold Mines Inc. for the year ended
December 31, 1995, have been so incorporated in reliance on the report of Price
Waterhouse, LLP, independent accountants, and insofar as they relate to Hemlo
Gold Mines Inc., as of and for the year ended December 31, 1995, on the report
of Ernst & Young, independent chartered accountants, given on the authority of
such firms as experts in auditing and accounting.
The audited Financial Statements of Lihir Gold Limited incorporated in
this Prospectus by reference to Amendment No.1 to the Company's annual report on
Form 10-K for the year ended December 31, 1996, have been so incorporated in
reliance upon the report of Coopers & Lybrand, independent accountants, given on
the authority of such firm as experts in auditing and accounting.
6
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is a statement of estimated expenses incurred in connection
with the shares of Common Stock being registered hereby, other than underwriting
discounts and commissions. The Company will pay for the fees and expenses of its
counsel and its accountants and printing and engraving expenses associated with
the offering of the Common Stock offered hereby. In addition, the Company will
pay 11.2% of (i) the SEC registration fee, (ii) fees and expenses associated
with compliance with Blue Sky laws and other state securities laws, (iii)
transfer agent and registration fees related to the offering of the shares of
Common Stock offered hereby and, (iv) certain miscellaneous expenses of the
offering of the shares of Common Stock offered hereby. All other fees and
expenses associated with the offering of the shares of Common Stock offered
hereby will be borne by the Selling Shareholder.
SEC Registration Fee........................................... $ 131,839
Legal Fees and Expenses........................................ 125,000
Printing and Engraving Expenses................................ 75,000
Accounting Fees and Expenses................................... 20,000
Transfer Agent and Registrar Fees and Expenses................. 10,000
Blue Sky Fees and Expenses (including legal fees).............. 10,000
Miscellaneous.................................................. $ 28,161
------------
Total..................................................... $ 400,000
============
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article VII of the Battle Mountain Bylaws provides for the indemnification
of officers and directors of Battle Mountain to the extent authorized by the
Nevada General Corporation Law (the "NGCL"). Pursuant to Section 78.751 of the
NGCL, Battle Mountain generally has the power to indemnify its present and
former directors, officers, employees and agents against expenses, judgments and
amounts paid in settlements incurred by them in connection with any suit to
which they are, or are threatened to be made, a party by reason of their serving
in such positions so long as they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of Battle
Mountain and, with respect to any criminal action, they had no reasonable cause
to believe their conduct was unlawful. With respect to suits by or in the right
of a corporation, however, indemnification is not available if such person is
finally adjudged to be liable to Battle Mountain or for amounts paid in
settlement, unless and only to the extent the court determines that
indemnification is appropriate. The statute also expressly provides that the
power to indemnify authorized thereby is not exclusive of any rights granted
under any bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise.
Section 78.751 of the NGCL also enables a corporation to purchase and
maintain insurance for its present and former directors, officers, employees and
agents. Accordingly, Battle Mountain has provided liability insurance for each
director and officer for certain losses arising from claims or charges made
against him while acting in his capacity as a director or officer of Battle
Mountain, including liabilities under federal securities laws.
The above discussion of Battle Mountain's Bylaws and of Section 78.751
of the NGCL is not intended to be exhaustive and is respectively qualified in
its entirety by such Bylaws and statute.
Additionally, Article Tenth of Battle Mountain Articles limits the
liability of Battle Mountain's directors and officers under certain
circumstances. Article Tenth states:
No director or officer of the Corporation shall be personally liable to
the Corporation or any of its stockholders for damages for breach 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;
provided, however, that the foregoing provision shall not eliminate or
limit the liability of a director or officer (i) for acts or omissions
which involve intentional misconduct, fraud or a knowing violation of law,
or (ii) the payment of dividends in violation of Section 78.300 of the
NGCL. Any repeal or modification of this Article by the stockholders of
the Corporation shall be prospective only, and shall not adversely affect
any limitation on the personal liability of a director or officer of the
Corporation for acts or omission prior to such repeal or modification.
II-1
<PAGE>
ITEM 16. EXHIBITS
EXHIBIT NO. DOCUMENT
*2(a) -- Plan of Arrangement of Hemlo Gold Mines Inc. under Section
182 of the Business Corporations Act (Ontario) (Annex D to
Exhibit 20(a), Joint Management Information Circular and
Proxy statement, to the Company's Current Report on Form 8-K
dated June 11, 1996).
*2(b) -- Combination Agreement effective as of March 11, 1996 by and
between the Company and Hemlo Gold Mines Inc. (Annex C to
Exhibit 20(a), Joint Management Information Circular and Proxy
Statement, to the Company's Current Report on Form 8-K
dated June 11, 1996).
*4(a) -- Restated Articles of Incorporation of the Company, as amended
and restated through July 19, 1996 (Exhibit 3(a) to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1996).
*4(b) -- Bylaws of the Company, as amended through March 21, 1997
(Exhibit 3(d) to the Company's Annual Report on Form 10-K/A
for the year ended December 31, 1996).
*4(c) -- Rights Agreement, dated November 10, 1988, as amended and
restated as of July 19, 1996, between the Company and The Bank
of New York, as Rights Agent (Exhibit 4(e) to the
Company's Current Report on Form 8-K dated July 19, 1996).
*4(d) -- Specimen Stock Certificate for the Common Stock of the
Company (Exhibit 4(b) to the Company's Annual Report on Form
10-K for the year ended December 31, 1988).
*4(e) -- Fiscal and Paying Agency Agreement, dated as of January 4,
1990, between the Company and Citibank, N.A., Fiscal Agent
(Exhibit 4(c) to the Company's Annual Report on Form 10-K
for the year ended December 31, 1989).
5 -- Opinion of Greg V. Etter, Esq., General Counsel and
Secretary of the Company
23(a) -- Consent of Greg V. Etter, Esq., General Counsel and
Secretary of the Company (included in Exhibit 5)
23(b) -- Consent of Price Waterhouse LLP, independent accountants.
23(c) -- Consent of Ernst & Young, chartered accountants
23(d) -- Consent of Coopers & Lybrand, independent accountants
- -------------
* Incorporated by reference to
previously filed documents as indicated.
II-2
<PAGE>
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in this registration statement
or any material change to such information in this registration
statement;
; PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the Company pursuant to Sections 13 or 15(d) of the Exchange Act that
are incorporated by reference in the registration statement;
(2) that, for the purposes of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof;
(3) that, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant
to Section 13(a) or 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in
this registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
(4) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering;
(5) for purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the undersigned registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be
deemed to be part of this registration statement as of the time it was
declared effective; and
(6) for the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offer of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by any such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of whether
or not such indemnification is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Toronto, Canada, on the 27th day of April, 1998.
BATTLE MOUNTAIN GOLD COMPANY
By: /s/ IAN D. BAYER
Ian D. Bayer
President and Chief Executive Officer
Date: April 27, 1998
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Ian D. Bayer and Phillips S. Baker, Jr. his true
and lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this registration statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitutes, may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- --------- ----- ----
(a) Principal Executive Officer
/s/ IAN D. BAYER President and Chief April 27, 1998
- ----------------------------------- Executive Officer and
Ian D. Bayer Director
(b) Principal Financial Officer
/s/ PHILLIPS S. BAKER, JR. Vice President and Chief April 27, 1998
- ----------------------------------- Financial Officer
Phillips S. Baker, Jr.
(c) Principal Accounting Officer
/s/ JEFFREY L. POWERS Vice President April 27, 1998
- ----------------------------------- and Controller
Jeffrey L. Powers
<PAGE>
SIGNATURE TITLE DATE
- --------- ----- ----
(d) Other Directors
/s/ DOUGLAS J. BOURNE Director April 27, 1998
- -----------------------------------
Douglas J. Bourne
/s/ DELO H. CASPARY Director April 27, 1998
- -----------------------------------
Delo H. Caspary
/s/ CHARLES E. CHILDERS Director April 27, 1998
- -----------------------------------
Charles E. Childers
/s/ KARL E. ELERS Director April 27, 1998
- -----------------------------------
Karl E. Elers
/s/ DAVID W. KERR Director April 27, 1998
- -----------------------------------
David W. Kerr
/s/ JAMES W. MCCUTCHEON Director April 27, 1998
- -----------------------------------
James W. McCutcheon, Q.C.
/s/ MARY MOGFORD Director April 27, 1998
- -----------------------------------
Mary Mogford
/s/ WILLIAM A. WISE Director April 27, 1998
- -----------------------------------
William A. Wise
/s/ DAVID L. BUMSTEAD Director April 27, 1998
- -----------------------------------
David L. Bumstead
EXHIBIT 5
April 29, 1998
Battle Mountain Gold Company
333 Clay Street, 42nd Floor
Houston, Texas 77002
Re: Registration Statement on Form S-3 of Battle Mountain Gold Company
Dear Sirs:
I have acted as Counsel for Battle Mountain Gold Company, a Nevada
corporation (the "Company"), in connection with the registration of 65,242,526
shares of Common Stock, par value $.10 per share, of the Company (the "Common
Stock"), as described in the Company's Registration Statement on Form S-3, filed
on even date herewith with the Securities and Exchange Commission under the
Securities Act of 1933, as amended ("Registration Statement").
In connection therewith, I have examined among other things, the Articles
of incorporation and the Bylaws of the Company, and the relevant corporate
proceedings with respect to the Registration Statement
Based on the foregoing, and having regard for such legal considerations as
I have deemed relevant, I am of the opinion that the shares of Common Stock to
be sold pursuant to the Registration Statement, will, when sold thereunder, be
legally issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the reference to me under "Certain Legal Matters"
in the Registration Statement.
Very truly yours,
/s/ GREG V. ETTER
Greg V. Etter
General Counsel
EXHIBIT 23(b)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
February 20, 1998 appearing on page 51 of Battle Mountain Gold Company's Annual
Report on Form 10-K for the year ended December 31, 1997. We also consent to the
reference to us under the heading "Experts" in such Prospectus.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
Houston, Texas
April, 27, 1998
EXHIBIT 23(c)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement of our report dated February 8, 1996 included in Battle
Mountain Gold Company's Form 10-K for the year ended December 31, 1997.We also
consent to the reference to us under the heading "Experts" in this Registration
Statement.
/s/ ERNST & YOUNG
ERNST & YOUNG
Chartered Accountants
Toronto, Canada
April 27, 1998
EXHIBIT 23(d)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement of Battle Mountain Gold Company on Form S-3 and the related prospectus
of our report dated March 13, 1997, on our audit of the financial statements of
Lihir Gold Limited as of December 31, 1996, and for the year then ended, which
report is included in Form 10-K/A for the year ended December 31, 1996. We also
consent to the reference to our firm under the caption "Experts."
/S/ COOPERS & LYBRAND
COOPERS & LYBRAND
Port Moresby, Papua New Guinea
April, 29, 1998
