<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 1, 1999
REGISTRATION NO. 333-88317
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-----------------------------
BATTLE MOUNTAIN GOLD COMPANY
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
NEVADA 76-0151431
<S> <C>
(State or other jurisdiction of incorporation (I.R.S. Employer Identification
or organization) Number)
GREG V. ETTER
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 telephone (Name, address, including zip code, and
number, including Area code, of registrant's telephone number, including area code,
principal executive offices) of agent for service)
</TABLE>
-----------------------------
COPY TO:
GEOFFREY K. WALKER
MAYOR, DAY, CALDWELL & KEETON, L.L.P.
700 LOUISIANA, SUITE 1900
HOUSTON, TEXAS 77002-2778
----------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after this registration statement becomes effective.
If the only securities being registered on this 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, check the following
box and list the Securities Act of 1933 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 of 1933 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,
check the following box. [ ]
-----------------------------
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 COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
================================================================================
<PAGE>
[SIDE LEGEND]
The information in this preliminary prospectus is not complete and may be
changed. These securities may not be sold until the registration statement filed
with the Securities and Exchange Commission is effective. This preliminary
prospectus is not an offer to sell nor does it seek an offer to buy these
securities in any jurisdiction where the offer or sale is not permitted.
$150,000,000
BATTLE MOUNTAIN GOLD COMPANY
COMMON STOCK
COMMON STOCK PURCHASE RIGHTS
PREFERRED STOCK
DEPOSITARY SHARES
DEBT SECURITIES
WARRANTS
---------------
Battle Mountain Gold Company may from time to time issue up to a total
of $150,000,000 of its common stock and related preferred share purchase rights,
common stock purchase rights, preferred stock, depositary shares, debt
securities and/or warrants. We will refer to the foregoing securities issued by
Battle Mountain Gold Company as the "securities." The accompanying prospectus
supplement will specify the terms of the securities.
---------------
Battle Mountain Gold Company may offer, sell or otherwise distribute
these securities directly, and to or through underwriters, and also to other
purchasers or through agents. The accompanying prospectus supplement will
specify the names of these underwriters or agents.
---------------
Neither the Securities and Exchange Commission nor any other
regulatory body has approved or disapproved of these securities or passed
upon the accuracy or adequacy of this prospectus. Any representation to the
contrary is a criminal offense.
---------------
This prospectus may not be used to sell securities unless it is accompanied
by a prospectus supplement.
---------------
Prospectus dated November 1, 1999.
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
About This Prospectus..............................................................1
Where You Can Find More Information................................................1
Battle Mountain Gold Company.......................................................2
Ratios of Earnings to Fixed Charges and Ratios of Earnings
to Combined Fixed Charges and Preferred Stock Dividends............................2
Use of Proceeds....................................................................3
The Securities We May Offer........................................................4
Description of Capital Stock.......................................................4
Description of Depositary Shares..................................................13
Description of Debt Securities....................................................15
Description of Warrants...........................................................24
Book-Entry Securities.............................................................25
Plan of Distribution..............................................................27
Legal Matters.....................................................................28
Experts .........................................................................28
</TABLE>
i
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission utilizing a "shelf" registration process.
Under this shelf process, we may sell any combination of the securities
described in this prospectus in one or more offerings up to a total dollar
amount of $150,000,000. This prospectus provides you with a general description
of the securities we may offer. Each time we offer to sell securities, we will
provide a prospectus supplement that will contain specific information about the
terms of that offering. The prospectus supplement may also add, update or change
information contained in this prospectus. This prospectus, together with
applicable prospectus supplements, will include or refer you to all material
information relating to each offering.
IN THIS PROSPECTUS AND THE ACCOMPANYING PROSPECTUS, WE REFER TO BATTLE
MOUNTAIN GOLD COMPANY AND ITS SUBSIDIARIES AS "WE," "US," "OUR" OR "BATTLE
MOUNTAIN GOLD" UNLESS THE CONTEXT INDICATES OTHERWISE.
WHERE YOU CAN FIND MORE INFORMATION
Battle Mountain Gold files annual, quarterly and special reports, proxy
statements and other information with the Securities and Exchange Commission.
These Securities and Exchange Commission filings are available to the public
over the Internet at the Securities and Exchange Commission's web site at
http://www.sec.gov. You may also read and copy any document we file at the
Securities and Exchange Commission's public reference rooms located at:
- 450 Fifth Street, N.W.
Washington, D.C. 20549;
- 7 World Trade Center
New York, New York 10048; and
- Citicorp Center
500 West Madison Street
Chicago, Illinois 60661.
Please call the Securities and Exchange Commission at 1-800-SEC-0330
for further information on the public reference rooms and their copy charges.
Battle Mountain Gold's common stock and preferred stock have been
listed and traded on the New York Stock Exchange since 1987 and 1993,
respectively. Accordingly, you may inspect the information we file with the
Securities and Exchange Commission at the New York Stock Exchange, 20 Broad
Street, New York, New York 10005.
The Securities and Exchange Commission allows us to "incorporate by
reference" the information we file with them, which means that we can disclose
important information to you by referring you to those documents. The
information incorporated by reference is an important part of this prospectus,
and information that we file later with the Securities and Exchange Commission
will automatically update and supersede earlier information. We incorporate by
reference the documents listed below as well as any future filings made with the
Securities and Exchange Commission by Battle Mountain Gold under Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, until we
sell all of the securities:
- Annual Report on Form 10-K for the year ended December 31, 1998 (the
"1998 10-K");
- Annual Report on Form 10-K/A for the year ended December 31, 1998;
- Proxy Statement on Schedule 14A dated March 26, 1999;
- Quarterly Report on Form 10-Q for the three months ended March 31,
1999 (the "1999 First Quarter 10-Q");
- Quarterly Report on Form 10-Q for the six months ended June 30, 1999
(the "1999 Second Quarter 10-Q");
- Current Report on Form 8-K dated March 26, 1999;
- Current Report on Form 8-K dated May 21, 1999;
- Current Report on Form 8-K dated August 19, 1999;
- Current Report on Form 8-K dated September 3, 1999;
- Current Report on Form 8-K dated October 12, 1999;
- Current Report on Form 8-K dated November 1, 1999;
- the description of our Common Stock contained in our 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 26, 1996);
1
<PAGE>
- the description of our preferred stock purchase rights associated
with the Common Stock contained in our Registration Statement on
Form 8-A dated November 15, 1988 (as amended by a Form 8 dated
November 29, 1988, Form 8-A/A dated August 26, 1996 and Form
8-A/A dated November 18, 1998); and
- the description of the $3.25 Convertible Preferred Stock contained
in the information under the caption "Description of Capital
Stock-Preferred Stock-Convertible Preferred Stock," set forth on
pages 39-43 in the prospectus dated May 13, 1993, filed pursuant
to Rule 424(b) under the Securities Act of 1933, as amended, in
connection with the Registration Statement on Form S-3,
Registration No. 33-60240, filed by us.
Each of these documents is available from the Securities and Exchange
Commission's web site and public reference rooms described above. You may also
request a copy of these filings, excluding exhibits, at no cost by writing or
telephoning Greg V. Etter, Corporate Secretary, at our principal executive
office, which is:
Battle Mountain Gold Company
333 Clay Street, 42nd Floor
Houston, Texas 77002
(713) 650-6400
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone to provide you with different information.
We are not making an offer of the securities covered by this prospectus
in any state where the offer is not permitted. You should not assume that the
information in this prospectus or any prospectus supplement or in any other
document incorporated by reference in this prospectus is accurate as of any date
other than the date on the front of those documents.
BATTLE MOUNTAIN GOLD COMPANY
Battle Mountain Gold is a Nevada corporation formed in 1985 and
headquartered in Houston, Texas. We are engaged in the mining and processing of
gold and silver ore in the United States, Canada, Bolivia and Australia and in
the exploration, evaluation and development of precious metals properties
primarily in Latin America, Australia, Canada and the United States. Battle
Mountain Gold's common stock is traded principally on the New York Stock
Exchange.
We hold interests in many of our properties through operating
subsidiaries, such as Battle Mountain Canada Ltd., a Canadian company that is a
wholly-owned subsidiary, and Empresa Minera Inti Raymi S.A., a Bolivian company
that is 88%-owned. The properties referred to in this prospectus, in any
prospectus supplement or in any other document incorporated by reference in this
prospectus may be held by our subsidiaries. We treat all operations as one line
of business.
RATIOS OF EARNINGS TO FIXED CHARGES AND RATIOS OF EARNINGS
TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
Our ratios of earnings to fixed charges are set forth in the table
below, or for years in which fixed charges exceeded earnings, in the table
following:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, SIX MONTHS ENDED JUNE 30,
---------------------------------------- -------------------------
1994 1995 1996 1997 1998 1998 1999
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
7.44 2.84 n/a n/a n/a n/a n/a
</TABLE>
The amounts by which fixed charges exceeded earnings are set forth in
the table below in millions of dollars. Earnings were inadequate to cover fixed
charges in these periods primarily as a result of asset write-downs and other
non-cash charges.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, SIX MONTHS ENDED JUNE 30,
---------------------------------------- -------------------------
1994 1995 1996 1997 1998 1998 1999
---- ---- ---- ---- ---- ----- -----
<S> <C> <C> <C> <C> <C> <C>
n/a n/a $31.6 $20.3 $227.5 $11.3 $29.2
</TABLE>
2
<PAGE>
Our ratios of earnings to fixed charges were computed based on:
- "earnings," which consist of consolidated income or losses from
continuing operations plus income taxes and fixed charges, except
capitalized interest; and
- "fixed charges," which consist of consolidated interest on
indebtedness, including capitalized interest, amortization of debt
discount and expense, and the estimated portion of rental expense
attributable to interest.
Our ratios of earnings to combined fixed charges and preferred stock
dividends are set forth in the table below, or for years in which combined fixed
charges and preferred stock dividends exceeded earnings, in the table following:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, SIX MONTHS ENDED JUNE 30,
---------------------------------------- -------------------------
1994 1995 1996 1997 1998 1998 1999
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
3.92 1.79 n/a n/a n/a n/a n/a
</TABLE>
The amounts by which combined fixed charges and preferred stock
dividends exceeded earnings are set forth in the table below in millions of
dollars. Earnings were inadequate to cover combined fixed charges and preferred
stock dividends in these periods primarily as a result of asset write-downs and
other non-cash charges.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, SIX MONTHS ENDED JUNE 30,
---------------------------------------- -------------------------
1994 1995 1996 1997 1998 1998 1999
---- ---- ---- ---- ---- ----- -----
<S> <C> <C> <C> <C> <C> <C>
n/a n/a $34.1 $27.8 $235.0 $15.0 $32.9
</TABLE>
Our ratios of earnings to combined fixed charges and preferred stock
dividends were computed based on:
- "earnings," which consist of consolidated income or losses from
continuing operations plus income taxes, preferred stock dividends
and fixed charges, except capitalized interest; and
- "fixed charges and preferred stock dividends," which consist of
consolidated interest on indebtedness, including capitalized
interest, amortization of debt discount and expense, the estimated
portion of rental expense attributable to interest, and preferred
stock dividends.
On July 19, 1996, Battle Mountain Gold combined with Hemlo Gold Mines
Inc., an Ontario corporation now known as Battle Mountain Canada. The
combination was accounted for as a "pooling of interests." As a result, we
restated our financial information for all periods preceding the combination. In
connection with the combination, each Hemlo Gold share was exchanged for 1.4
shares of a newly issued class of exchangeable shares of Battle Mountain Canada
(I.E., the former Hemlo Gold), and Battle Mountain Gold acquired all of the
common shares of Battle Mountain Canada. The Battle Mountain Canada exchangeable
shares entitle holders to voting rights, dividends and other rights that are the
equivalent of holding shares of Battle Mountain Gold common stock, and they are
exchangeable at the holder's option into Battle Mountain Gold common stock on a
share-for-share basis.
USE OF PROCEEDS
Unless otherwise indicated in an accompanying prospectus supplement, we
expect to use the net proceeds from the sale of the securities for general
corporate purposes, which may include, among other things:
- the repayment of outstanding indebtedness;
- stock and debt repurchases;
- working capital;
3
<PAGE>
- capital expenditures; and
- acquisitions.
The precise amount and timing of the application of such proceeds will
depend upon our funding requirements and the availability and cost of other
funds.
THE SECURITIES WE MAY OFFER
The descriptions of the securities contained in this prospectus,
together with each applicable prospectus supplement, summarize all the material
terms and provisions of the various types of securities that we may offer. The
particular terms of the securities offered by any prospectus supplement will be
described in that prospectus supplement. If indicated in the applicable
prospectus supplement, the terms of the securities may differ from the terms
summarized below. The prospectus supplement will also contain information, where
applicable, about material U.S. federal income tax considerations relating to
the securities, and the securities exchanges, if any, on which the securities
will be listed.
We may offer, issue, sell or otherwise distribute from time to time, in
one or more offerings or other distributions, one or more of the following:
- common stock and related preferred share purchase rights;
- common stock purchase rights;
- preferred stock;
- depositary shares;
- debt securities; and/or
- warrants.
In this prospectus, we will refer to the common stock and related
preferred share purchase rights, common stock purchase rights, preferred stock,
depositary shares, debt securities and warrants collectively as "securities."
The total dollar amount of all securities that we may issue under this
prospectus will not exceed $150,000,000.
If we issue debt securities at a discount from their original stated
principal amount, then, for purposes of calculating the total dollar amount of
all securities issued under this prospectus, we will treat the initial offering
price of the debt securities as the total original principal amount of the debt
securities.
This prospectus may not be used to issue, offer, sell or otherwise
distribute securities unless it is accompanied by a prospectus supplement.
DESCRIPTION OF CAPITAL STOCK
The following description of Battle Mountain Gold's common stock and
preferred stock, together with the additional information included in any
applicable prospectus supplements, summarizes the material terms and provisions
of these types of securities. For the complete terms of Battle Mountain Gold's
common stock and preferred stock, please refer to its charter, bylaws and
stockholders' rights plan that are incorporated by reference into the
registration statement that includes this prospectus or may be incorporated by
reference in this prospectus. The terms of these securities may also be affected
by the Nevada General Corporation Law.
Under Battle Mountain Gold's charter, its authorized capital stock
consists of 500 million shares of common stock, $0.10 par value per share, 50
million shares of preferred stock, $1.00 par value per share, and one share of
special voting stock, $0.10 par value per share. Battle Mountain Gold will
describe the specific terms of any common stock or preferred stock it may offer
in a prospectus
4
<PAGE>
supplement. If indicated in a prospectus supplement, the terms of any common
stock or preferred stock offered under that prospectus supplement may differ
from the terms described below.
Battle Mountain Gold has the power, at its own option, to attach common
stock purchase rights to our outstanding securities or to distribute common
stock purchase rights to holders of our outstanding securities at one or more
specified future dates. The relevant terms of any of these common stock purchase
rights that may be attached or distributed will be discussed in a prospectus
supplement.
COMMON STOCK
As of August 31, 1999, Battle Mountain Gold had approximately 130.9
million shares of common stock issued and outstanding. Taking into account
exchangeable shares (which are the economic equivalent of shares of common
stock), Battle Mountain Gold would have approximately 229.9 million shares of
common stock outstanding. Each outstanding share of common stock has attached to
it one preferred share purchase right issued under Battle Mountain Gold's
stockholders' rights plan, which is summarized below. The exchangeable shares
have equivalent purchase rights under a separate agreement. All outstanding
shares of common stock are duly authorized, validly issued, fully paid and
nonassessable.
VOTING
For all matters submitted to a vote of stockholders, each holder of
common stock is entitled to one vote for each share registered in the holder's
name. As discussed below, each exchangeable share in effect also entitles its
holder to one vote. Battle Mountain Gold's common stock and exchangeable shares
do not have cumulative voting rights. As a result, subject to the right of
holders of preferred stock to vote for two additional seats on Battle Mountain
Gold's board of directors if dividends are not paid for six quarters, persons
who hold more than 50% of the outstanding common stock and exchangeable shares
can elect all of the directors who are up for election in a particular year.
DIVIDENDS
If Battle Mountain Gold's board of directors declares a dividend,
holders of common stock will receive payments from the funds of Battle Mountain
Gold that are legally available to pay dividends. However, this dividend right
is subject to any preferential dividend rights we may grant to holders of
preferred stock, and is further conditioned on Battle Mountain Canada's paying
an equivalent dividend to holders of exchangeable shares.
LIQUIDATION
If Battle Mountain Gold is dissolved, the holders of common stock, as
well as the holders of Battle Mountain Canada exchangeable shares (which will
automatically be exchanged for Battle Mountain Gold common shares in such
event), will be entitled to share ratably in all the assets that remain after
Battle Mountain Gold pays its liabilities and any amounts owed to holders of
preferred stock.
BATTLE MOUNTAIN GOLD SPECIAL VOTING STOCK
A single share of Battle Mountain Gold special voting stock is issued
and outstanding. Except as otherwise required by law or the Battle Mountain Gold
charter, the share of special voting stock is entitled to a number of votes
equal to the number of outstanding Battle Mountain Canada exchangeable shares,
and may be voted in the election of directors and on all other matters submitted
to a vote of stockholders of Battle Mountain Gold. The votes of the share of
special voting stock are cast in accordance with the votes of the holders of
Battle Mountain Canada exchangeable shares. The Battle Mountain Gold common
stock and the share of special voting stock 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 Gold charter.
The exchangeable shares are automatically exchanged for Battle Mountain
Gold common shares prior to any liquidation, dissolution or winding up of Battle
Mountain Gold, and the holder of the share of special voting stock will not be
entitled to receive any assets of Battle Mountain Gold in such event. The holder
of the share of special voting stock is not entitled to receive dividends from
Battle Mountain Gold. Instead, the holders of exchangeable shares receive
equivalent dividends from Battle Mountain Canada.
5
<PAGE>
The share of special voting stock is issued to The CIBC Mellon Trust
Company (as successor to The R-M Trust Company), as trustee for the holders of
Battle Mountain Canada exchangeable shares.
At such time as the share of special voting stock has no votes attached
to it because there are no Battle Mountain Canada exchangeable shares
outstanding not owned by Battle Mountain Gold or certain subsidiaries of Battle
Mountain Gold, 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
Battle Mountain Canada exchangeable shares to any person (other than Battle
Mountain Gold or some other subsidiaries of Battle Mountain Gold), the share of
special voting stock will be cancelled.
OTHER RIGHTS AND RESTRICTIONS
When Battle Mountain Gold issues shares of common stock, the shares
will be fully paid and nonassessable.
Neither holders of common stock nor holders of exchangeable shares have
preemptive rights, and they have no right to convert their common stock or
exchangeable shares into any other security (other than the right of holders of
exchangeable shares to receive common stock). Any repurchase of common stock by
Battle Mountain Gold or of exchangeable shares by Battle Mountain Canada is
subject to any limitations on the amount available for such purpose under
applicable corporate law, any applicable restrictions under the terms of any
outstanding 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. Battle
Mountain Gold's charter and bylaws do not restrict the ability of a holder of
common stock to transfer shares of common stock, nor is there any similar
restriction on the transfer of exchangeable shares imposed by Battle Mountain
Canada's charter or bylaws.
Section 78.288(2) of the Nevada General Corporation Law prohibits
Battle Mountain Gold from making any distribution, including a dividend on or a
purchase of outstanding shares, if:
- the distribution would render Battle Mountain Gold insolvent; or
- Battle Mountain Gold's total assets are less than its total
liabilities plus the amount needed to satisfy preferential rights
upon dissolution.
In the event a distribution is made in willful or grossly negligent violation of
Section 78.288(2) of the Nevada General Corporation Law, Section 78.3000(2)
provides that the directors responsible would be jointly and severally liable to
Battle Mountain Gold and its creditors for the amount of the distribution or for
any loss to Battle Mountain Gold because of the distribution.
LISTING
Battle Mountain Gold's common stock is listed on the New York Stock
Exchange, the Australian Stock Exchange Limited, the Swiss Stock Exchanges and
the Frankfurt Stock Exchange.
Battle Mountain Canada's exchangeable shares are traded on The Toronto
Stock Exchange.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for Battle Mountain Gold's common
stock is The Bank of New York.
COMMON STOCK PURCHASE RIGHTS
Battle Mountain Gold may periodically attach common stock purchase
rights to our specified outstanding securities (including securities issuable
upon exchange or exercise of rights related to other outstanding securities),
or distribute common stock purchase rights to holders of such securities, at one
or more specified future dates. The specific terms of any common stock purchase
rights will be described in a prospectus supplement on or before the date as of
which the common stock purchase rights are attached to, or distributed to
holders of, our specified outstanding securities.
If any common stock purchase rights are attached to, or distributed to
holders of, our specified outstanding securities, we will then describe in a
prospectus supplement, among other things:
6
<PAGE>
- the number of common stock purchase rights to be attached or
distributed;
- the specific securities of Battle Mountain Gold to which the common
stock purchase rights are to be attached or to the holders of which
they are to be distributed;
- the record date for determining the securities to which the common
stock purchase rights are to be attached or the holders of
securities to whom the common stock purchase rights are to be
distributed;
- the number of shares of common stock for which each common stock
purchase right may be exercised;
- the subscription price per share of common stock at which, and the
time period or periods during which, each common stock purchase
right may be exercised;
- whether the common stock purchase rights are transferable;
- whether, and if so on what terms and conditions, holders of common
stock purchase rights will have any privilege to subscribe for
shares of common stock as to which other holders of common stock
purchase rights do not fully exercise their subscription rights;
- the material federal income tax consequences of the common stock
purchase rights and the exercise of those rights or of any privilege
to subscribe for shares not purchased by other holders;
- whether there will be any agreement with any standby purchaser to
purchase all or a portion of the shares of common stock not
subscribed for by holders of the common stock purchase rights, and
if so on what terms and conditions;
- the treatment of exercises of common stock purchase rights under our
stockholders' rights plan and any amendments that may be made to
that plan with respect to exercises of those rights;
- where our common stock purchase rights are attached to, or
distributed to holders of, shares of our common stock, the
arrangements that must be made by Battle Mountain Canada for
equivalent exchangeable share purchase rights that will be attached
to, or distributed to holders of, Battle Mountain Canada
exchangeable shares; and
- other terms of the common stock purchase rights and other terms of
the offer and sale of the shares of common stock underlying the
common stock purchase rights.
PREFERRED STOCK
GENERAL
Battle Mountain Gold has 50 million shares of preferred stock
authorized. Battle Mountain Gold's charter authorizes its board of directors to
issue preferred stock in one or more series. For each series, the board of
directors can determine the voting rights (which may be greater or lesser than
the voting rights of the common stock), dividend rights, dividend rates,
conversion rights, redemption rights and terms, liquidation preferences,
including sinking fund rights and terms, the number of shares constituting the
series and the designation of the series.
$3.25 CONVERTIBLE PREFERRED STOCK
Battle Mountain Gold currently has 2.3 million shares of $3.25
convertible preferred stock issued and outstanding.
Holders of convertible preferred stock are entitled to receive, if
declared by the board of directors of Battle Mountain Gold, an annual cash
dividend of $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 the
convertible preferred stock have no voting rights. If dividends on the
convertible preferred stock are in arrears for at least six full quarterly
dividends, holders of the convertible preferred stock would 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 Gold ranking
7
<PAGE>
on a parity with the convertible preferred stock as to dividends and having
similar voting rights) to elect two additional directors until the 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 Gold common stock at
a conversion rate of 4.762 shares of Battle Mountain Gold 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 Gold, in whole or in part, in
exchange for shares of Battle Mountain Gold common stock at a redemption price
of $52.275 per share of convertible preferred stock, and thereafter at prices
decreasing ratably annually to $50.00 per share on or after May 15, 2003, plus
accrued and unpaid dividends. The number of shares of Battle Mountain Gold
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:
- the average of the daily closing prices of the Battle Mountain Gold
common stock for the 20 consecutive trading days immediately
preceding the first business day immediately preceding the date of
any applicable redemption notice; or
- the closing price of the Battle Mountain Gold 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.
In the event of any liquidation, dissolution or winding up of Battle
Mountain Gold, the holders of shares of convertible preferred stock are entitled
to receive a liquidation preference of $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 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
Gold'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 on such stock.
The convertible preferred stock is listed for trading on the New York
Stock Exchange. 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
The shares of Series A Preferred Stock are authorized for issuance
pursuant to rights that trade with outstanding Battle Mountain Gold common stock
and Battle Mountain Canada exchangeable shares, and are reserved for issuance
upon the exercise of the rights, as discussed below under the caption
"Stockholders' Rights Plan."
UNDESIGNATED PREFERRED STOCK
This summary of the undesignated preferred stock discusses terms and
conditions that Battle Mountain Gold expects will apply to all series of the
preferred stock that may be offered under this prospectus. The applicable
prospectus supplement will describe the particular terms of each particular
series of preferred stock offered. If indicated in the prospectus supplement,
the terms of any series may differ from the terms described below.
The following description, together with the applicable prospectus
supplements, summarizes all the material terms and provisions of any
preferred stock being offered by this prospectus. It does not restate the
terms and provisions in their entirety. Battle Mountain Gold urges you to
read its charter and the applicable certificate of designation because they,
and not this description, define the rights of any holders of preferred
stock. Battle Mountain Gold has filed its charter as an exhibit to the
registration statement which includes this prospectus. Battle Mountain Gold
will incorporate by reference as an exhibit to the registration statement the
form of any certificate of designation before the issuance of any series of
preferred stock.
Battle Mountain Gold expects the prospectus supplement to include some
or all of the following terms:
- the designation of the series of preferred stock;
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- the number of shares of preferred stock offered, the liquidation
preference per share and the offering price of the preferred stock;
- the dividend rate or rates of the shares, the dates at which
dividends, if declared, will be payable, and whether or not the
dividends are to be cumulative and, if cumulative, the date or dates
from which dividends shall be cumulative;
- the amounts payable on shares of the preferred stock in the event of
the voluntary or involuntary liquidation, dissolution or winding up
of Battle Mountain Gold;
- the redemption rights and price or prices, if any, for the shares of
preferred stock;
- any terms, and the amount, of any sinking fund or analogous fund
providing for the purchase or redemption of the shares of preferred
stock;
- any restrictions on Battle Mountain Gold's ability to make payments
on any of its capital stock if dividend or other payments are not
made on the preferred stock;
- any voting rights granted to the holders of the shares of preferred
stock in addition to those required by Nevada law or Battle Mountain
Gold's charter;
- whether the shares of preferred stock will be convertible into
shares of Battle Mountain Gold's common stock or any other class of
its capital stock, and, if convertible, the conversion price or
prices, and any adjustment or other terms and conditions upon which
the conversion shall be made;
- any other rights, preferences, restrictions, limitations or
conditions relative to the shares of preferred stock permitted by
Nevada law or Battle Mountain Gold's charter;
- any listing of the preferred stock on any securities exchange; and
- the federal income tax considerations applicable to the preferred
stock.
Subject to Battle Mountain Gold's charter and to any limitations
imposed by any then-outstanding preferred stock, Battle Mountain Gold may issue
additional series of preferred stock, at any time or from time to time, with
such powers, preferences, rights and qualifications, limitations or
restrictions, as its board of directors determines, and without further action
of its stockholders, including holders of its then-outstanding preferred stock,
if any.
STOCKHOLDERS' RIGHTS PLAN
In November 1998, the board of directors amended Battle Mountain Gold's
stockholders' rights plan to extend and modify the plan that was originally
adopted in November 1988 and amended and restated in July 1996. Under our
stockholders' rights plan, one right is attached to each outstanding share of
common stock. Under a separate agreement, equivalent rights attach to each
exchangeable share. The rights trade automatically with shares of common stock
and exchangeable shares and become exercisable only under certain circumstances
described below.
The purpose of the rights is to encourage potential acquirors to
negotiate with Battle Mountain Gold's board of directors before attempting a
takeover bid and to provide our board of directors with leverage in negotiating
on behalf of our stockholders the terms of any proposed takeover. The rights may
have certain anti-takeover effects. They are not designed to prevent any merger
or other business combination approved by our board of directors.
The following description is a summary of all the material terms of the
stockholders' rights plan. It does not restate these terms in their entirety. We
urge you to read the stockholders' rights plan because it, and not this
description, defines the terms and provisions of our plan. Our plan is an
exhibit to our registration statement on Form 8-A/A, which we filed with the
Securities and Exchange Commission on November 18, 1998 and which is
incorporated by reference as an exhibit to the registration statement that
includes this prospectus. You may obtain a copy at no charge by writing to us at
the address listed under the caption "Where You Can Find More Information."
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EXERCISE OF RIGHTS
Until a right is exercised, the holder of a right will not have any
rights as a stockholder. If the rights become exercisable, holders of the rights
will be able to purchase from Battle Mountain Gold 1/100th of a share of Battle
Mountain Gold's Series A preferred stock, at a purchase price of $60, subject to
adjustment.
In general, the rights will become exercisable upon the earlier of:
- ten calendar days after a public announcement that a person or group
has acquired beneficial ownership of 20% or more of the outstanding
shares of Battle Mountain Gold's common stock; or
- ten business days after the beginning of a tender offer or exchange
offer that would result in a person or group beneficially owning 30%
or more of Battle Mountain Gold's common stock.
For purposes of the rights, beneficial ownership of Battle Mountain
Canada exchangeable shares is treated as beneficial ownership of Battle Mountain
Gold common stock and calculations of percentage ownership, the number of shares
outstanding and related provisions are made on a basis that treats the common
stock and exchangeable shares as though they are the same security.
Noranda, Inc., a Canadian corporation, currently owns beneficially
approximately 28% of Battle Mountain Gold's common stock; however, its ownership
will not cause the rights to be exercisable unless it or any of its affiliates
purchase or otherwise become the beneficial owner of any additional shares of
Battle Mountain Gold common stock; provided that the rights will not be
exercisable if:
- Noranda, together with all of its affiliates, is not then the
beneficial owner of 20% or more of the shares of Battle Mountain
Gold common stock and Battle Mountain Canada exchangeable shares
then outstanding or
- in case Noranda becomes the beneficial owner of such additional
shares as a result of the acquisition of another person or becomes
an affiliate of another person 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
Gold common stock and not for any purpose with any effect of
changing or influencing control of Battle Mountain Gold, Noranda
promptly divests or causes to be divested the additional shares or
the shares owned beneficially by the affiliate.
The rights agreement also provides that neither Noranda's acquisition
of Battle Mountain Gold common stock upon its exchange of exchangeable shares,
nor a transfer by Noranda of all its common stock or exchangeable shares to one
other party, or the subsequent transfer by that party to another single party,
will cause the rights to be exercisable when neither Noranda nor the subsequent
acquiror beneficially owns any additional common stock or exchangeable shares at
the time of the acquisition. The rights will become exercisable if either
Noranda or the subsequent acquiror thereafter becomes the beneficial owner of
any additional exchangeable shares or shares of common stock unless:
- Noranda or the subsequent acquiror, together with that party's
respective affiliates, beneficially owns less than 20% of total
outstanding shares of common stock and exchangeable shares then
outstanding; or
- Noranda's or the subsequent acquiror's increase in beneficial
ownership is solely the result of a decrease in the number of common
shares or exchangeable shares outstanding.
FLIP-IN EVENT
We refer to the following as a "flip-in event":
- Battle Mountain Gold is the surviving corporation in a merger with
an acquiring person and the Battle Mountain Gold common stock is not
changed or exchanged,
- a person becomes the beneficial owner of 30% or more of the then
outstanding shares of Battle Mountain Gold common stock, except
pursuant to a tender or exchange offer for all outstanding shares of
Battle Mountain Gold common stock at a price and on terms that a
majority of the independent directors of Battle Mountain Gold
determines to be fair to and otherwise in the best interests of
Battle Mountain Gold and its stockholders,
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- an acquiring person engages in one or more "self-dealing"
transactions as set forth in the rights agreement or
- during such time as there is an acquiring person, an event involving
Battle Mountain Gold or a subsidiary of Battle Mountain Gold occurs
that results in such ownership interest being increased by more than
1% (e.g., a reverse stock split), at any time following the date the
rights become exercisable.
If at any time after the rights become exercisable a flip-in event
occurs, each right (other than rights held by an acquiring person) will then
entitle its holder to receive, upon exercise, a number of shares of Battle
Mountain Gold common stock having a value equal to twice the exercise price of
the rights. Holders of exchangeable shares have an equivalent right to acquire
additional exchangeable shares after a flip-in event occurs.
FLIP-OVER EVENT
If at any time after the rights become exercisable, Battle Mountain
Gold is acquired in a merger or other transaction in which Battle Mountain Gold
does not survive or in which its common stock is changed or exchanged or 50% or
more of Battle Mountain Gold's assets or earning power is sold or transferred,
then each holder of a right (and each holder of equivalent rights regarding the
exchangeable shares) will be entitled to receive, upon exercise, a number of
shares of common stock of the acquiring company in the transaction having a
value equal to two times the exercise price of the right. Battle Mountain Gold
refers to this occurrence as a "flip-over event."
REDEMPTION OF RIGHTS
At any time until 10 days following the rights becoming exercisable,
Battle Mountain Gold may redeem the rights at a price of $.01 per right,
payable, at the option of Battle Mountain Gold, in cash, shares of Battle
Mountain Gold common stock (or additional exchangeable shares, in the case of
rights relating to the exchangeable shares) or such other consideration as the
board of directors may determine. The rights will expire on the close of
business on November 10, 2008, subject to earlier expiration or termination as
described in its stockholder rights plan.
Any provisions of the rights agreement, other than those relating to
the principal economic terms, may be amended by Battle Mountain Gold's board of
directors prior to the date the rights become exercisable. After the
distribution date, the board of directors may amend the rights agreement to cure
any ambiguity or to shorten or lengthen any time period under the rights
agreement provided that: (i) such changes do not adversely affect the interests
of holders of rights, excluding the interests of any acquiring person, (ii) no
amendment to the time period may be made at such time as the rights are not
redeemable and (iii) no amendment may be made to the provision exempting
subsequent acquirers from the definition of acquiring person without the consent
of Noranda, or any party that has acquired its shares directly from Noranda.
ANTI-TAKEOVER EFFECT OF PROVISIONS OF BATTLE MOUNTAIN GOLD'S CHARTER AND BYLAWS
AND NEVADA LAW
Battle Mountain Gold's charter and bylaws include provisions designed
to prevent the use of certain tactics in connection with a potential takeover of
Battle Mountain Gold. Please refer to Battle Mountain Gold's charter and bylaws
that are incorporated by reference into the registration statement that includes
this prospectus. You may obtain copies at no charge by writing to Battle
Mountain Gold at the address listed under the caption "Where You Can Find More
Information."
The provisions of Section 78.378 of the Nevada General Corporation Law
have a similar anti-takeover effect.
BATTLE MOUNTAIN GOLD'S BYLAWS
Battle Mountain Gold's board of directors is divided into three
classes, with directors serving staggered three-year terms. As a result, less
than a majority of the board can be replaced in any one year.
BATTLE MOUNTAIN GOLD'S CHARTER
Article Eight generally stipulates that the affirmative vote of 80% of
Battle Mountain Gold's voting shares is required to adopt any agreement for the
merger or consolidation with or into any other corporation which is the
beneficial owner of 5% or more of
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Battle Mountain Gold's voting shares. Article Eight further provides that
such 80% approval is necessary to authorize any sale or lease of assets
between Battle Mountain Gold and any beneficial holder of 5% or more of
Battle Mountain Gold's voting shares.
BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS UNDER NEVADA LAW
As defined in Section 78.423 of the Nevada General Corporation Law, an
"interested stockholder" is any person who owns 10% or more of the voting power
of the outstanding shares of a corporation or is an affiliate or associate of
the corporation owning 10 percent of the voting power within three years before
the date in question.
Section 78.438 of the Nevada General Corporation Law prevents a
resident domestic corporation from engaging in any combination with an
interested stockholder for a period of three years after the date of the
interested stockholder's date of acquiring shares, unless before the interested
stockholder's date of acquiring shares, the board of directors of the
corporation approved the purchase of shares made by the interested stockholder
on such date.
Section 78.439 et seq. of the Nevada General Corporation Law prevents a
resident domestic corporation from engaging in any combination with an
interested stockholder after the expiration of three years after the interested
stockholder's date of acquiring shares unless:
The combination meets all of the requirements of the articles of
incorporation of the resident domestic corporation AND either:
- the combination is approved by the board of directors of the
corporation before the interested stockholder acquires the shares;
OR
- the combination is approved by a vote of the majority of the other
stockholders at a meeting called for that purpose no earlier than
three years after the interested stockholder's date of acquiring
shares; OR
ALL of the following requirements are met:
- the aggregate amount of consideration to be received per share by
all of the other holders of outstanding common shares immediately
before the date of consummation is at least equal to the higher of
the following:
- the highest price per share paid by the interested shareholder,
at a time when he was the beneficial owner of 5% of the
outstanding voting shares of the corporation, for any common
shares of the same class acquired within three years before the
date of announcement, or within three years before the date he
became an interested stockholder, whichever is higher, plus
interest; or
- the market value per common share on the date of announcement or
on the date of the interested stockholder acquiring shares,
whichever is higher, plus interest;
- the aggregate amount of consideration to be received per share by
all of the other stockholders (of other than common shares)
immediately before the date of consummation is at least equal to the
higher of the following, regardless of whether or not the interested
shareholder had previously acquired any shares of the class or
series:
- the highest price per share paid by the interested shareholder,
at a time when he was the beneficial owner of 5% of the
outstanding voting shares of the corporation, for any shares of
the same class acquired within 3 years before the date of
announcement, or within three years before the date he became an
interested stockholder, whichever is higher, plus interest;
- the highest preferential amount per share to which the holders of
shares of the class or series of shares are entitled in the event
of a voluntary liquidation, dissolution or winding up of the
corporation, plus the amount of the dividends to which the
holders are entitled before payment of dividends to some other
class or series of shares; or
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- the market value per share of the class or series of shares on
the date of announcement or on the date of the interested
stockholder acquiring shares, whichever is higher, plus interest;
- the consideration to be received by holders of outstanding shares of
the corporation in the combination must be in cash or in the same
form as the interested stockholder has used to acquire the largest
number of shares of the class or series previously acquired by it,
and the consideration must be distributed promptly; and
- the interested stockholder has not become the beneficial owner of
any additional voting shares of the corporation between the date of
acquiring shares and the date of consummation except:
- as part of the transaction that resulted in his becoming an
interested shareholder;
- through proportionate splitting of shares, dividends distributed
in shares, or other distributions of shares not constituting a
combination;
- through a combination meeting all of the foregoing requirements;
or
- through a purchase at a price that meets all the foregoing
requirements.
DESCRIPTION OF DEPOSITARY SHARES
The following description, together with each applicable prospectus
supplement, summarizes all the material terms and provisions of the depositary
shares that Battle Mountain Gold may offer under this prospectus and the related
deposit agreements and depositary receipts. Specific deposit agreements and
depositary receipts will contain additional important terms and provisions and
will be incorporated by reference into the registration statement which includes
this prospectus before Battle Mountain Gold issues any depositary shares.
This summary of depositary agreements, depositary shares and depositary
receipts relates to terms and conditions generally applicable to these types of
securities. The particular terms of any series of depositary shares will be
summarized in the applicable prospectus supplement. If indicated in the
applicable prospectus supplement, the terms of any series may differ from the
terms summarized below.
GENERAL
Battle Mountain Gold may elect to offer fractional shares of preferred
stock rather than full shares of preferred stock. If so, Battle Mountain Gold
will issue "depositary receipts" for these "depositary shares." Each depositary
share will represent a fraction of a share of a particular series of preferred
stock. Each holder of a depositary share will be entitled, in proportion to the
fraction of preferred stock represented by that depositary share, to the rights
and preferences of the preferred stock, including dividend, voting, redemption,
conversion and liquidation rights, if any. Battle Mountain Gold will enter into
a deposit agreement with a depositary, which will be named in the related
prospectus supplement.
In order to issue depositary shares, Battle Mountain Gold will issue
preferred stock and immediately deposit these shares with the depositary. The
depositary will then issue and deliver depositary receipts to the persons who
purchase depositary shares. Each whole depositary share issued by the depositary
may represent a fraction of a share of preferred stock held by the depositary.
The depositary will issue depositary receipts in a form that reflects whole
depositary shares, and each depositary receipt may evidence any number of whole
depositary shares.
Pending the preparation of definitive engraved depositary receipts, a
depositary may, upon Battle Mountain Gold's written order, issue temporary
depositary receipts, which will temporarily entitle the holders to all the
rights pertaining to the definitive depositary receipts. Battle Mountain Gold
will bear the costs and expenses of promptly preparing definitive depositary
receipts and of exchanging the temporary depositary receipts for such definitive
depositary receipts.
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DIVIDENDS AND OTHER DISTRIBUTIONS
The depositary will distribute all cash and non-cash distributions it
receives with respect to the underlying preferred stock to the record holders of
depositary shares in proportion to the number of depositary shares they hold. In
the case of non-cash distributions, the depositary may determine that the
distribution cannot be made proportionately or that it may not be feasible to
make the distribution. If so, the depositary will, with Battle Mountain Gold's
approval, adopt a method it deems equitable and practicable to effect the
distribution, including the sale, public or private, of the securities or other
non-cash property it receives in the distribution at a place and on terms it
deems proper. The amounts distributed by the depositary will be reduced by any
amount required to be withheld by Battle Mountain Gold or the depositary on
account of taxes.
REDEMPTION OF DEPOSITARY SHARES
If Battle Mountain Gold redeems the series of preferred stock that
underlies the depositary shares, the depositary will redeem the depositary
shares from the proceeds it receives from the redemption of the preferred stock
it holds. The depositary will redeem the number of depositary shares that
represent the amount of underlying preferred stock that Battle Mountain Gold has
redeemed. The redemption price for depositary shares will be in proportion to
the redemption price per share that Battle Mountain Gold paid for the underlying
preferred stock. If Battle Mountain Gold redeems less than all of the depositary
shares, the depositary will select which depositary shares to redeem by lot, or
some substantially equivalent method.
After a redemption date is fixed, the depositary shares to be redeemed
no longer will be considered outstanding. The rights of the holders of the
depositary shares will cease, except for the rights to receive money or other
property upon redemption. In order to redeem their depositary shares, holders
will surrender their depositary receipts to the depositary.
VOTING THE PREFERRED STOCK
Battle Mountain Gold will notify the depositary about any meeting at
which the holders of preferred stock are entitled to vote, and the depositary
will mail the information to the record holders of depositary shares related to
that preferred stock. Each record holder of depositary shares on the record date
will be entitled to instruct the depositary on how to vote the shares of
preferred stock represented by that holder's depositary shares. The depositary
will vote the preferred stock represented by the depositary shares in accordance
with these instructions, provided the depositary receives these instructions
sufficiently in advance of the meeting. If the depositary does not receive
instructions from the holders of the depositary shares, the depositary will
abstain from voting the preferred stock that underlies those depositary shares.
WITHDRAWAL OF PREFERRED STOCK
When a holder surrenders depositary receipts at the trust services
office of the depositary, and pays any necessary taxes, charges or other fees,
the holder will be entitled to receive the number of whole shares of the related
series of preferred stock, and any money or other property, if any, represented
by the holder's depositary shares. Once a holder exchanges depositary shares for
whole shares of preferred stock, that holder cannot "re-deposit" these shares of
preferred stock with the depositary, or exchange them for depositary shares. If
a holder delivers depositary receipts that represent a number of depositary
shares that exceeds the number of whole shares of related preferred stock the
holder seeks to withdraw, the depositary will issue a new depositary receipt to
the holder that evidences the excess number of depositary shares.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
Battle Mountain Gold and the depositary can agree, at any time, to
amend the form of depositary receipt and any provisions of the deposit
agreement. However, if an amendment has a material adverse effect on the rights
of the holders of related depositary shares, the holders of at least a majority
of the depositary shares then outstanding must first approve the amendment.
Every holder of a depositary receipt at the time an amendment becomes effective
will be bound by the amended deposit agreement. However, subject to any
conditions in the deposit agreement or applicable law, no amendment can impair
the right of any holder of a depositary share to receive shares of the related
preferred stock, or any money or other property represented by the depositary
shares, when they surrender their depositary receipts.
Battle Mountain Gold can terminate the deposit agreement at any time,
as long as the depositary mails notice of termination to the record holders of
depositary shares then-outstanding at least 30 days prior to the date fixed for
termination.
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CHARGES OF DEPOSITARY
Battle Mountain Gold will pay all transfer and other taxes and the
government charges that relate solely to the depositary arrangements. Battle
Mountain Gold will also pay the charges of each depositary, including charges in
connection with the initial deposit of the related series of preferred stock,
the initial issuance of the depositary shares, and all withdrawals of shares of
the related series of preferred stock. However, holders of depositary shares
will be required to pay transfer and other taxes and government charges, as
provided in the deposit agreement.
RESIGNATION AND REMOVAL OF DEPOSITARY
The depositary may resign at any time by delivering written notice of
its decision to Battle Mountain Gold. Battle Mountain Gold may remove the
depositary at any time. Any resignation or removal will take effect when Battle
Mountain Gold appoints a successor depositary. Battle Mountain Gold must appoint
the successor depositary within 60 days after delivery of the notice of
resignation or removal. The successor depositary must be a bank or trust company
that has its principal office in the United States and has a combined capital
and surplus of at least $50 million.
MISCELLANEOUS
Battle Mountain Gold will be required to furnish certain information to
the holders of the preferred stock underlying any depositary shares. The
depositary, as the holder of the underlying preferred stock, will forward any
report or information it receives from Battle Mountain Gold to the holders of
depositary shares.
Neither the depositary nor Battle Mountain Gold will be liable if its
ability to perform its obligations under the deposit agreement is prevented or
delayed by law or any circumstance beyond its control. Both Battle Mountain Gold
and the depositary will be obligated to use their best judgment and to act in
good faith in performing its duties under the deposit agreement. Each of Battle
Mountain Gold and the depositary will be liable only for gross negligence and
willful misconduct in performing their duties under the deposit agreement. They
will not be obligated to appear in, prosecute or defend any legal proceeding
with respect to any depositary receipts, depositary shares or preferred stock
unless they receive what they, in their sole discretion, determine to be a
satisfactory indemnity from one or more holders of the depositary shares. Battle
Mountain Gold and the depositary will evaluate any proposed indemnity in order
to determine whether the financial protection afforded by the indemnity is
sufficient to reduce each party's risk to a satisfactory and customary level.
Battle Mountain Gold and the depositary may rely on the advice of legal counsel
or accountants of their choice. They may also rely on information provided by
persons they believe, in good faith, to be competent, and on documents they
believe, in good faith, to be genuine.
The applicable prospectus supplement will identify the depositary's
trust services office. Unless the prospectus supplement indicates otherwise, the
depositary will act as transfer agent and registrar for depositary receipts, and
if Battle Mountain Gold redeems shares of preferred stock, the depositary will
act as redemption agent for the corresponding depositary receipts.
TITLE
Battle Mountain Gold, each depositary and any agent of Battle Mountain
Gold or the applicable depositary may treat the registered owner of any
depositary share as the absolute owner of the depositary shares for all
purposes, including making payment, regardless of whether any payment in respect
of the depositary share is overdue and regardless of any notice to the contrary.
See "Book-Entry Securities" below.
DESCRIPTION OF DEBT SECURITIES
Debt securities may be issued from time to time in one or more series
by Battle Mountain Gold. The following description, together with each
applicable prospectus supplement, summarizes all the material terms and
provisions of the debt securities that we may offer under this prospectus and
the related trust indenture. The indenture under which debt securities will be
issued contains additional important terms and provisions and is or will be
filed as an exhibit to the registration statement that includes this prospectus.
This summary of the indenture and the debt securities relates to terms
and conditions generally applicable to the debt securities. The particular terms
of any series of debt securities offered by a particular prospectus supplement
will be summarized in
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the applicable prospectus supplement. If indicated in the prospectus
supplement, the terms of any series may differ from the terms summarized
below.
Unless otherwise specified in the applicable prospectus supplement, we
will issue the debt securities under an indenture entered into between us and
Chase Bank of Texas, National Association, as trustee. We may offer debt
securities under this prospectus only up to an aggregate initial offering price
of $150 million. However, the indenture does not limit the amount of debt
securities we may issue under the indenture and provides that additional debt
securities of any series may be issued up to the aggregate principal amount that
we authorize from time to time. Debt securities may also be issued pursuant to
the indenture in transactions exempt from the registration requirements of the
Securities Act of 1933, as amended, or pursuant to other registration statements
under the Securities Act of 1933, as amended. Those debt securities will not be
considered in determining the aggregate amount of securities issued under this
prospectus.
Unless otherwise indicated in the applicable prospectus supplement, we
will issue the debt securities in denominations of $1,000 or integral multiples
of $1,000.
Unless otherwise indicated in the applicable prospectus supplement, the
payment of principal of, and any premium and interest on, the debt securities
will rank equally and ratably with unsecured unsubordinated indebtedness of the
issuer. Principal and any premium and any interest will be payable, and the debt
securities will be transferable, at the trust services office of the appropriate
trustee, unless we specify otherwise in the accompanying prospectus supplement.
At our option, however, payment of interest may be made by check mailed to the
registered holders of the debt securities at their registered addresses.
We will describe special U.S. federal income tax and other
considerations relating to debt securities denominated in foreign currencies or
units of two or more foreign currencies in the applicable prospectus supplement.
Unless we specify otherwise in the applicable prospectus supplement,
the covenants contained in the indenture and the debt securities will not
provide special protection to holders of debt securities if we enter into a
highly leveraged transaction, recapitalization or restructuring.
GENERAL
The prospectus supplement relating to the particular series of debt
securities being offered will specify the amounts, prices and terms of those
debt securities. These terms may include, among others:
- the designation, aggregate principal amount and authorized
denominations of the debt securities;
- the date or dates on which the debt securities will mature;
- the percentage of the principal amount at which the debt securities
will be issued;
- the date or dates on which the principal of the debt securities will
be payable;
- whether the debt securities are convertible into or exchangeable for
common stock or other securities of Battle Mountain Gold or any
other entity, and if so, the terms governing conversion;
- whether the debt securities will be issued as registered securities,
bearer securities or a combination of the two;
- whether the debt securities will be issued in the form of one or
more global securities and whether such global securities will be
issued in a temporary global form or permanent global form;
- the currency or currencies or units of two or more currencies or
other consideration in which debt securities are denominated, for
which they may be purchased, or in which principal and any premium
and interest is payable;
- if the currency or currencies or currency unit or units or other
consideration for which debt securities may be purchased or in which
principal and any premium interest may be paid is at our election or
at the election of a purchaser, the manner in which an election may
be made and its terms;
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- the annual rate or rates, which may be fixed or variable, or the
method of determining the rate or rates at which the debt securities
will bear interest;
- the date or dates from which any interest will accrue and the date
or dates on which such interest will be payable;
- a description of any provisions providing for redemption, exchange
or conversion of the debt securities, mandatorily or at our option
or a holder's option, and the terms and provisions of such
redemption, exchange or conversion;
- a description of any provisions providing for the priority,
equality, subordination or other relationship of the rights of
holders of the debt securities to the rights of holders of other
obligations of the issuer;
- information with respect to book-entry procedures relating to global
debt securities;
- any redemption or sinking fund terms;
- whether and under what circumstances we will pay "additional
amounts," as defined in the indenture, on the debt securities to any
holder who is a "United States alien," as defined in the indenture,
in respect of any tax, assessment or governmental charge and, if so,
whether and on what terms we will have the option to redeem the debt
securities rather than pay any additional amounts - - and the term
"interest" as used in this prospectus includes all such additional
amounts;
- any events of default or covenants of Battle Mountain Gold with
respect to the debt securities of a certain series that are
different from those described in this prospectus;
- if either or both of the provisions of the indenture relating to
defeasance or the provisions of the indenture relating to covenant
defeasance is not applicable to the debt securities, or if any
covenants in addition to those specified in the provisions of the
indenture relating to covenant defeasance are subject to covenant
defeasance;
- any deletions from, or modifications or additions to, the provisions
of the indenture relating to satisfaction and discharge in respect
of the debt securities;
- any index or other method used to determine the amount of or
consideration to be used for payments of principal of, and any
premium and interest on, the debt securities; and
- any other specific terms of the debt securities.
We are not obligated to issue all debt securities of any one series at
the same time. The debt securities of any one series may not all bear interest
at the same rate or mature on the same date.
If any of the debt securities are sold for foreign currencies or
foreign currency units or other consideration or if the principal of, or any
premium or interest on, any series of debt securities is payable in foreign
currencies or foreign currency units or other consideration, we will describe
the restrictions, elections, tax consequences, specific terms and other
information with respect to those debt securities and such foreign currencies or
foreign currency units or other consideration in the applicable prospectus
supplement.
Other than as may be described in a prospectus supplement, the
indenture does not limit our ability to incur indebtedness or afford holders of
debt securities protection in the event of a decline in our credit quality or if
we are involved in a takeover, recapitalization or highly leveraged or similar
transaction. The prospectus supplement relating to the particular series of debt
securities, to the extent not otherwise described in this prospectus, will
include any information with respect to any deletions from, modifications of or
additions to the events of default described below and contained in the
indenture, including any addition of a covenant or other provision providing
event risk or similar protection.
INTEREST RATES AND DISCOUNTS
The debt securities will earn interest at a fixed or floating rate or
rates for the period or periods of time specified in the applicable prospectus
supplement. Unless otherwise specified in the applicable prospectus supplement,
the debt securities will bear interest on the basis of a 360-day year consisting
of twelve 30-day months.
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We may sell debt securities at a substantial discount below their
stated principal amount, bearing no interest or interest at a rate that at the
time of issuance is below market rates. Federal income tax consequences and
special considerations that apply to any series of that kind will be described
in the applicable prospectus supplement.
EXCHANGE, REGISTRATION AND TRANSFER
Registered securities of any series that are not global securities will
be exchangeable for other registered securities of the same series and of like
aggregate principal amount and tenor in different authorized denominations. In
addition, if debt securities of any series are issuable as both registered
securities and bearer securities, the holder may choose, upon written request,
and subject to the terms of the indenture, to exchange bearer securities and the
appropriate related coupons of that series into registered securities of the
same series of any authorized denominations and of like aggregate principal
amount and tenor. Bearer securities with attached coupons surrendered in
exchange for registered securities between a regular record date or a special
record date and the relevant date for interest payment shall be surrendered
without the coupon relating to the interest payment date. Interest will not be
payable with respect to the registered security issued in exchange for that
bearer security. That interest will be payable only to the holder of the coupon
when due in accordance with the terms of the indenture. Bearer securities will
not be issued in exchange for registered securities.
Holders may present registered securities for registration of transfer,
together with a duly executed form of transfer, at the office of the security
registrar or at the office of any transfer agent designated by us for that
purpose with respect to any series of debt securities and referred to in the
applicable prospectus supplement. This may be done without service charge but
upon payment of any taxes and other governmental charges as described in the
indenture. The security registrar or the transfer agent will effect the transfer
or exchange upon being satisfied with the documents of title and identity of the
person making the request. We have appointed the trustee as security registrar
for the indenture. If a prospectus supplement refers to any transfer agents
initially designated by us with respect to any series of debt securities in
addition to the security registrar, we may at any time rescind the designation
of any of those transfer agents or approve a change in the location through
which any of those transfer agents acts. However, if debt securities of a series
are issuable solely as registered securities, we will be required to maintain a
transfer agent in each place of payment for that series, and if debt securities
of a series are issuable as bearer securities, we will be required to maintain a
transfer agent in a place of payment for that series located in Europe in
addition to the security registrar. We may at any time designate additional
transfer agents with respect to any series of debt securities.
In the event of any redemption, we will not be required to:
- issue, register the transfer of or exchange debt securities of any
series during a period beginning at the opening of business 15 days
before any selection of debt securities of that series to be
redeemed and ending at the close of business on the day of mailing
of the relevant notice of redemption; or
- register the transfer of or exchange any registered security, or
portion thereof, called for redemption, except the unredeemed
portion of any registered security being redeemed in part.
PAYMENT AND PAYING AGENTS
Unless we specify otherwise in the applicable prospectus supplement,
payment of principal of, and any premium and interest on, bearer securities will
be payable in accordance with any applicable laws and regulations, at the
offices of those paying agents outside the United States that we may designate
at various times. We will make interest payments on bearer securities and the
attached coupons on any interest payment date only against surrender of the
coupon relating to that interest payment date. No payment with respect to any
bearer security will be made at any of our offices or agencies in the United
States by check mailed to any U.S. address or by transfer to an account
maintained with a bank located in the United States. However, if, but only if,
payment in U.S. dollars of the full amount of principal of, and any premium and
interest on, bearer securities denominated and payable in U.S. dollars at all
offices or agencies outside the United States is illegal or effectively
precluded by exchange controls or other similar restrictions, then those
payments will be made at the office of our paying agent in the Borough of
Manhattan, The City of New York.
Unless we specify otherwise in the applicable prospectus supplement,
payment of principal of, and any premium and interest on, registered securities
will be made at the office of the paying agent or paying agents that we
designate at various times. However, at our option, we may make interest
payments by check mailed to the address, as it appears in the security register,
of the person entitled to the payments. Unless we specify otherwise in the
applicable prospectus supplement, we will make payment of any
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installment of interest on registered securities to the person in whose name
that registered security is registered at the close of business on the
regular record date for such interest.
Unless we specify otherwise in the applicable prospectus supplement,
the global trust services office of the trustee's agent, The Chase Manhattan
Bank, in the Borough of Manhattan, The City of New York, will be designated:
- as our sole paying agent for payments with respect to debt
securities that are issuable solely as registered securities; and
- as our paying agent in the Borough of Manhattan, The City of New
York, for payments with respect to debt securities, subject to the
limitation described above in the case of bearer securities, that
are issuable solely as bearer securities or as both registered
securities and bearer securities.
We will name any paying agents outside the United States and any other
paying agents in the United States initially designated by us for the debt
securities in the applicable prospectus supplement. We may at any time designate
additional paying agents or rescind the designation of any paying agent or
approve a change in the office through which any paying agent acts. However, if
debt securities of a series are issuable solely as registered securities, we
will be required to maintain a paying agent in each place of payment for that
series. If debt securities of a series are issuable as bearer securities, we
will be required to maintain:
- a paying agent in the Borough of Manhattan, The City of New York,
for payments with respect to any registered securities of the series
and for payments with respect to bearer securities of the series in
the circumstance described above, but not otherwise; and
- a paying agent in a place of payment located outside the United
States where debt securities of that series and any attached coupons
may be presented and surrendered for payment.
However, if the debt securities of that series are listed on the
Toronto Stock Exchange, the London Stock Exchange, the Luxembourg Stock Exchange
or any other stock exchange located outside the United States and if the stock
exchange requires it, we will maintain a paying agent in Toronto, London or
Luxembourg or any other required city located outside the United States for
those debt securities.
All moneys we pay to a paying agent for the payment of principal of,
and any premium or interest on, any debt security or coupon that remains
unclaimed at the end of two years after becoming due and payable will be repaid
to us. After that time, the holder of the debt security or coupon will, unless
otherwise required by mandatory provisions of applicable escheat or abandoned or
unclaimed property laws, look only to us for payments out of those repaid
amounts.
GLOBAL SECURITIES
The debt securities of a series may be issued in whole or in part in
the form of one or more global certificates that we will deposit with a
depositary identified in the applicable prospectus supplement. Global securities
may be issued in either registered or bearer form and in either temporary or
permanent form. Unless and until it is exchanged in whole or in part for the
individual debt securities it represents, a global security may not be
transferred except as a whole:
- by the applicable depositary to a nominee of the depositary;
- by any nominee to the depositary itself or another nominee; or
- by the depositary or any nominee to a successor depositary or any
nominee of the successor.
We will describe the specific terms of the depositary arrangement with
respect to a series of debt securities in the applicable prospectus supplement.
We anticipate that the following provisions will generally apply to depositary
arrangements.
When we issue a global security in registered form, the depositary for
the global security or its nominee will credit, on its book-entry registration
and transfer system, the respective principal amounts of the individual debt
securities represented by that global security to the accounts of participants
that have accounts with the depositary. Those accounts will be designated by the
dealers, underwriters or agents with respect to the underlying debt securities
or by us if those debt securities are offered and sold directly by us. Ownership
of beneficial interests in a global security will be limited to participants or
persons that may hold interests
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through participants. For interests of participants, ownership of beneficial
interests in the global security will be shown on records maintained by the
applicable depositary or its nominee. For interests of persons other than
participants, that ownership information will be shown on the records of
participants. Transfer of that ownership will be effected only through those
records. The laws of some states require that certain purchasers of
securities take physical delivery of securities in definitive form. These
limits and laws may impair our ability to transfer beneficial interests in a
global security.
As long as the depositary for a global security, or its nominee, is the
registered owner of that global security, the depositary or nominee will be
considered the sole owner or holder of the debt securities represented by the
global security for all purposes under the applicable indenture. Except as
provided below, owners of beneficial interests in a global security:
- will not be entitled to have any of the underlying debt securities
registered in their names;
- will not receive or be entitled to receive physical delivery of any
of the underlying debt securities in definitive form; and
- will not be considered the owners or holders under the indenture
relating to those debt securities.
Payments of principal of, and any premium and interest on, individual
debt securities represented by a global security registered in the name of a
depositary or its nominee will be made to the depositary or its nominee as the
registered owner of the global security representing such debt securities.
Neither we, the trustee, any paying agent nor the registrar for the debt
securities will be responsible for any aspect of the records relating to or
payments made by the depositary or any participants on account of beneficial
interests of the global security.
We expect that the depositary or its nominee, upon receipt of any
payment of principal, premium or interest relating to a permanent global
security representing any series of debt securities, immediately will credit
participants' accounts with the payments. Those payments will be credited in
amounts proportional to the respective beneficial interests of the participants
in the principal amount of the global security as shown on the records of the
depositary or its nominee. We also expect that payments by participants to
owners of beneficial interests in the global security held through those
participants will be governed by standing instructions and customary practices.
This is now the case with securities held for the accounts of customers in
bearer form or registered in "street name." Those payments will be the sole
responsibility of those participants.
If the depositary for a series of debt securities is at any time
unwilling, unable or ineligible to continue as depositary and we do not appoint
a successor depositary within 90 days, we will issue individual debt securities
of that series in exchange for the global security or securities representing
that series. In addition, we may at any time in our sole discretion determine
not to have any debt securities of a series represented by one or more global
securities. In that event, we will issue individual debt securities of that
series in exchange for the global security or securities. Further, if we
specify, an owner of a beneficial interest in a global security may, on terms
acceptable to us, the trustee and the applicable depositary, receive individual
debt securities of that series in exchange for those beneficial interests. The
foregoing is subject to any limitations described in the applicable prospectus
supplement. In that instance, the owner of the beneficial interest will be
entitled to physical delivery of individual debt securities equal in principal
amount to the beneficial interest and to have the debt securities registered in
its name. Those individual debt securities will be issued in denominations,
unless we specify otherwise, of $1,000 or integral multiples of $1,000.
For a description of the depository arrangements for global securities
held by The Depository Trust Company, see "Book-Entry Securities."
THE INDENTURE INCLUDES EVENTS OF DEFAULT
Unless otherwise specified in the applicable prospectus supplement, any
one of the following events will, in addition to any other event of default
provided with respect to the debt securities of that series and described in the
prospectus supplement, constitute an "event of default" under the indenture with
respect to the debt securities of any series:
- if we fail to pay any interest on any debt security of that series
when due, and the failure continues for 30 days;
- if we fail to pay principal of or any premium on the debt securities
of that series when due and payable, either at maturity or
otherwise;
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- if we fail to perform, or we breach any of our other covenants or
warranties in the indenture -- other than a covenant or warranty
included in the indenture solely for the benefit of a series of
securities other than the debt securities -- and that breach of
failure continues for 120 days after written notice as provided in
the indenture; and
- certain events of bankruptcy, insolvency or reorganization involving
us.
If an event of default with respect to the debt securities of any
series, other than an event of default described in the last item above, occurs
and is continuing, either the trustee or the holders of at least 25% in
aggregate principal amount of the outstanding debt securities of that series may
declare the principal amount of the debt securities to be due and payable
immediately. At any time after a declaration of acceleration has been made, but
before a judgment or decree for payment of money has been obtained by the
trustee, and subject to applicable law and certain other provisions of the
indenture, the holders of a majority in aggregate principal amount of the debt
securities of that series may, under certain circumstances, rescind and annul
such acceleration. If an event of default described in the last two items above
occurs, the principal amount and accrued interest -- or a lesser amount as
provided for in the debt securities of that series -- will become immediately
due and payable without any declaration or other act by the trustee or any
holder.
Within 90 days after the occurrence of any event of default under the
indenture with respect to the debt securities of any series, the trustee must
transmit notice of the event of default to the holders of the debt securities of
that series unless the event of default has been cured or waived. However,
except in the case of a payment default, the trustee may withhold the notice if
and so long as the board of directors, the executive committee or a trust
committee of directors or responsible officers of the trustee has in good faith
determined that the withholding of the notice is in the interest of the holders
of debt securities of that series.
If an event of default occurs and is continuing with respect to the
debt securities of any series, the trustee may in its discretion proceed to
protect and enforce its rights and the rights of the holders of debt securities
of that series by all appropriate judicial proceedings.
Subject to the duty of the trustee during any default to act with the
required standard of care, the trustee is under no obligation to exercise any of
its rights or powers under the indenture at the request or direction of any of
the holders of debt securities, unless the holders offer the trustee reasonable
indemnity. Subject to indemnifying of the trustee, and subject to applicable law
and certain other provisions of the indenture, the holders of a majority in
aggregate principal amount of the outstanding debt securities of a series may
direct the time, method and place of conducting any proceeding for any remedy
available to the trustee, or exercising any trust or power conferred on the
trustee, with respect to the debt securities of that series.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
We may discharge certain obligations to holders of any series of debt
securities that have not already been delivered to the trustee for cancellation
and that:
- have become due and payable;
- will become due and payable within one year; or
- are scheduled for redemption within one year.
To discharge the obligations with respect to a series of debt
securities, we must deposit with the trustee, in trust, an amount in U.S.
dollars or in the foreign currency, currencies, units or other consideration in
which those debt securities are payable, sufficient to pay the entire amount of
principal of, and any premium and interest on, those debt securities to the date
of the deposit if those debt securities have become due and payable or to the
maturity of the debt securities, as the case may be.
The indenture provides that, unless certain specified provisions of the
indenture are made inapplicable to the debt securities, we may elect either:
- to defease and be discharged from any and all obligations with
respect to those debt securities, which we refer to as "legal
defeasance"; or
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- to be released from our obligations with respect to such debt
securities under our covenants specified in the applicable
prospectus supplement, which we refer to as "covenant defeasance."
In the case of legal defeasance, we will still retain some obligations
in respect of the debt securities, including obligations:
- to pay additional amounts, if any, upon the occurrence of certain
events of taxation, assessment or governmental charge with respect
to payments on the debt securities;
- to register the transfer or exchange of the debt securities;
- to replace mutilated, destroyed, lost or stolen debt securities; and
- to maintain an office or agency with respect to the debt securities
and to hold moneys for payment in trust.
After a covenant defeasance, any omission to comply with the
obligations or covenants that have been defeased will not constitute a default
or an event of default with respect to the debt securities.
To elect either legal defeasance or covenant defeasance, we must
deposit with the trustee, in trust, an amount, in U.S. dollars or in a foreign
currency or currencies, or other consideration in which the relevant debt
securities are payable at stated maturity, or if applicable in government
obligations, as defined below, or both, applicable to such debt securities which
through the scheduled payment of principal and interest in accordance with their
terms will provide money in an amount sufficient to pay the principal of and any
premium and interest on those debt securities on their scheduled due dates.
In addition, we can only elect legal defeasance or covenant defeasance
if, among other things:
- the applicable defeasance does not result in a breach or violation
of, or constitute a default under, the indenture;
- no default or event of default with respect to the debt securities
to be defeased shall have occurred and be continuing on the date of
the establishment of such a trust; and
- we have delivered to the trustee an opinion of counsel to the effect
that the holders of such debt securities will not recognize income,
gain or loss for U.S. federal income tax purposes as a result of
such defeasance and will be subject to U.S. federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such defeasance had not occurred.
The indenture deems a foreign currency to be any currency, currency
unit or composite currency, including, without limitation, the ECU, issued by
the government of one or more countries other than the United States or by any
recognized confederation or association of governments.
The indenture defines government obligations as securities that are not
callable or redeemable at the option of the issuer or issuers thereof and are:
- direct obligations of the United States or the government or the
governments in the confederation which issued the foreign currency
in which the debt securities of a particular series are payable, for
the payment of which its full faith and credit is pledged; or
- obligations of a person or entity controlled or supervised by and
acting as an agency or instrumentality of the United States or the
government or governments which issued the foreign currency in which
the debt securities of a particular series are payable, the timely
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States or that other government or
governments.
Government obligations also include a depository receipt issued by a
bank or trust company as custodian with respect to any government obligation
described above or a specific payment of interest on or principal of or any
other amount with respect to any government obligation held by that custodian
for the account of the holder of such depository receipt, as long as, except as
required by law, that custodian is not authorized to make any deduction from the
amount payable to the holder of the depository receipt from any
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amount received by the custodian with respect to the government obligation or
the specific payment of interest on or principal of or any other amount with
respect to the government obligation evidenced by the depository receipt.
Unless we disclose otherwise in the applicable prospectus supplement,
if after we have deposited funds and/or government obligations to effect legal
defeasance or covenant defeasance with respect to debt securities of any series,
either:
- the holder of a debt security of that series is entitled to, and
does, elect to receive payment in a currency other than that in
which such deposit has been made in respect of that debt security;
or
- a conversion event, as defined below, occurs in respect of the
foreign currency in which the deposit has been made,
the indebtedness represented by that debt security shall be deemed to have been,
and will be, fully discharged and satisfied through the payment of the principal
of, and any premium and interest on, that debt security as that debt security
becomes due out of the proceeds yielded by converting the amount or other
properties so deposited in respect of that debt security into the currency in
which that debt security becomes payable as a result of the election or
conversion event based on:
- in the case of payments made pursuant to the first of the two items
in the list above, the applicable market exchange rate for the
currency in effect on the second business day prior to the date of
the payment; or
- with respect to a conversion event, the applicable market exchange
rate for such foreign currency in effect, as nearly as feasible, at
the time of the conversion event.
The indenture defines a "conversion event" as the cessation of use of:
- a foreign currency other than the ECU both by the government of the
country or the confederation which issued such foreign currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community;
- the ECU both within the European Monetary System and for the
settlement of transactions by public institutions of or within the
European Community; or
- any currency unit or composite currency other than the ECU for the
purposes for which it was established. Unless otherwise provided in
the applicable prospectus supplement, all payments of principal of,
and any premium and interest on, any debt security that are payable
in a foreign currency that ceases to be used by the government or
confederation of issuance shall be made in U.S. dollars.
If we effect a covenant defeasance with respect to any debt securities
and the debt securities are declared due and payable because of the occurrence
of any event of default other than an event of default with respect to which
there has been covenant defeasance, the amount in the foreign currency in which
the debt securities are payable, and government obligations on deposit with the
trustee, will be sufficient to pay amounts due on the debt securities at the
time of the stated maturity but may not be sufficient to pay amounts due on the
debt securities at the time of the acceleration resulting from the event of
default. However, we would remain liable for payment of the amounts due at the
time of acceleration.
The applicable prospectus supplement may further describe the
provisions, if any, permitting defeasance or covenant defeasance, including any
modifications to the provisions described above, with respect to the debt
securities of or within a particular series.
Under the indenture, we are required to furnish to the trustee annually
a statement as to our performance of certain of our obligations under the
indenture and as to any default in such performance. We are also required to
deliver to the trustee, within five days after occurrence thereof, written
notice of any event which after notice or lapse of time or both would constitute
an event of default.
MODIFICATION AND WAIVER
We and the trustee may modify the indenture or waive certain provisions
of the indenture with the consent of the holders of not less than a majority in
aggregate principal amount of the debt securities of each series affected by the
modification or waiver.
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However, provisions of the indenture may not be waived or modified without
the consent of the holder of each debt security affected thereby if the
modification or waiver would:
- change the stated maturity of the principal of, or premium, if any,
on, or any installment of principal, if any, of or interest on, or
any additional amounts with respect to, any debt security;
- reduce the principal amount of, or premium or interest on, or any
additional amounts with respect to, any debt security;
- change the coin or currency or other consideration in which any debt
security or any premium or any interest on such debt security or any
additional amounts with respect to the debt security is payable;
- impair the right to institute suit for the enforcement of any
payment on or after the stated maturity of any debt securities or,
in the case of redemption, exchange or conversion, on or after the
redemption, exchange or conversion date or, in the case of repayment
at the option of any holder, on or after the date for repayment or
in the case of a change in control, after the change in control
purchase date;
- reduce the percentage and principal amount of the outstanding debt
securities, the consent of whose holders is required in order to
take certain actions;
- change any of our obligations to maintain an office or agency in the
places and for the purposes required by the indenture; or
- modify any of the above provisions.
The holders of at least a majority in aggregate principal amount of
debt securities of any series may, on behalf of the holders of all debt
securities of that series, waive our compliance with certain restrictive
provisions of the indenture. The holders of not less than a majority in
aggregate principal amount of debt securities of any series may, on behalf of
all holders of debt securities of that series, waive any past default and its
consequences under the indenture with respect to the debt securities of that
series, except:
- a payment default with respect to debt securities of that series; or
- a default of a covenant or provision of the indenture that cannot be
modified or amended without the consent of the holder of each debt
security of any series.
CONSOLIDATION, MERGER AND SALE OF ASSETS
We may, without the consent of the holders of the debt securities,
consolidate or merge with or into, or convey, transfer or lease our properties
and assets substantially as an entirety to, any other person or persons (whether
or not affiliated with us). We may also permit any of those persons to
consolidate with or merge into us or convey, transfer or lease its properties
and assets substantially as an entirety to us, as long as any successor person
assumes our obligations on the debt securities and that after giving effect to
the transaction, no event of default under the indenture, and no event which,
after notice or lapse of time or both, would become an event of default, will
have occurred and be continuing, and as long as some other conditions are met.
DESCRIPTION OF WARRANTS
Battle Mountain Gold may issue warrants for the purchase of debt
securities, preferred stock or common stock and related preferred share purchase
rights. Warrants may be issued independently or together with debt securities,
preferred stock or common stock and related preferred share purchase rights
offered by any prospectus supplement and may be attached to or separate from any
such securities. Each series of warrants will be issued under a separate warrant
agreement to be entered into between Battle Mountain Gold and a bank or trust
company, as warrant agent, all as set forth in the prospectus supplement
relating to the particular issue of warrants. The warrant agent will act solely
as an agent of Battle Mountain Gold in connection with the warrants and will not
assume any obligation or relationship of agency or trust for or with any holders
of warrants or beneficial owners of warrants. The following summary of certain
provisions of the warrants does not purport to be complete and is subject to,
and is qualified in its entirety by reference to, all the provisions of the
warrant agreements.
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Reference is made to the prospectus supplement relating to the
particular issue of warrants offered thereby for the terms of such warrants,
including, where applicable:
- the designation, aggregate principal amount, currencies,
denominations and terms of the series of debt securities purchasable
upon exercise of warrants to purchase debt securities and the price
at which such debt securities may be purchased upon such exercise;
- the designation, number of shares, stated value and terms
(including, without limitation, liquidation, dividend, conversion
and voting rights) of the series of preferred stock purchasable upon
exercise of warrants to purchase shares of preferred stock and the
price at which such number of shares of preferred stock of such
series may be purchased upon such exercise;
- the number of shares of common stock purchasable upon the exercise
of warrants to purchase shares of common stock and the price at
which such number of shares of common stock may be purchased upon
such exercise;
- the date on which the right to exercise such warrants shall commence
and the date on which such right expires;
- U.S. federal income tax consequences applicable to such warrants;
and
- any other terms of such warrants.
Warrants for the purchase of preferred stock and common stock will be
issued in registered form only. The exercise price for warrants will be subject
to adjustment in accordance with the applicable prospectus supplement.
Each warrant will entitle the holder thereof to purchase such principal
amount of debt securities or such number of shares of preferred stock or common
stock at such exercise price as shall in each case be set forth in, or
calculable from, the prospectus supplement relating to the warrants, which
exercise price may be subject to adjustment upon the occurrence of certain
events as set forth in such prospectus supplement. After the close of business
on the date on which such right expires (or such later date to which such
expiration date may be extended by Battle Mountain Gold), unexercised warrants
will become void. The place or places where, and the manner in which, warrants
may be exercised shall be specified in the prospectus supplement relating to
such warrants.
Prior to the exercise of any warrants to purchase debt securities,
preferred stock or common stock, holders of such warrants will not have any of
the rights of holders of the debt securities, preferred stock or common stock,
as the case may be, purchasable upon such exercise, including the right to
receive payments of principal of, premium, if any, or interest, if any, on the
debt securities purchasable upon such exercise or to enforce covenants in the
applicable indenture, or to receive payments of dividends, if any, on the
preferred stock or common stock purchasable upon such exercise or to exercise
any applicable right to vote.
BOOK-ENTRY SECURITIES
Unless otherwise specified in the applicable prospectus supplement, we
will issue securities, other than common stock, in the form of one or more
book-entry certificates registered in the name of a depositary or a nominee of a
depositary. Unless otherwise specified in the applicable prospectus supplement,
the depositary will be The Depository Trust Company, referred to below as "DTC."
We have been informed by DTC that its nominee will be Cede & Co. Accordingly,
Cede is expected to be the initial registered holder of all securities that are
issued in book-entry form.
No person that acquires a beneficial interest in securities issued in
book-entry form will be entitled to receive a certificate representing those
securities, except as set forth in this prospectus or in the applicable
prospectus supplement. Unless and until definitive securities are issued under
the limited circumstances described below, all references to actions by
beneficial owners of securities issued in book-entry form will refer to actions
taken by DTC upon instructions from its participants, and all references to
payments and notices to beneficial owners will refer to payments and notices to
DTC or Cede, as the registered holder of such securities.
DTC has informed us that it is:
- a limited purpose trust company organized under New York banking
laws;
25
<PAGE>
- a "banking organization" within the meaning of the New York banking
laws;
- a member of the Federal Reserve System;
- a "clearing corporation" within the meaning of the New York Uniform
Commercial Code; and
- a "clearing agency" registered under the Securities Exchange Act of
1934, as amended.
DTC has also informed us that it was created to:
- hold securities for "participants"; and
- facilitate the clearance and settlement of securities transactions
among participants through electronic book-entry, thereby
eliminating the need for the physical movement of securities
certificates.
Participants have accounts with DTC and include securities brokers and
dealers, banks, trust companies and clearing corporations. Indirect access to
the DTC system also is available to indirect participants such as banks,
brokers, dealers and trust companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly.
Persons that are not participants or indirect participants but desire
to buy, sell or otherwise transfer ownership of or interests in securities may
do so only through participants and indirect participants. Under the book-entry
system, beneficial owners may experience some delay in receiving payments, as
payments will be forwarded by our agent to Cede, as nominee for DTC. DTC will
forward these payments to its participants, which thereafter will forward them
to indirect participants or beneficial owners. Beneficial owners will not be
recognized by the applicable registrar, transfer agent, trustee or depositary as
registered holders of the securities entitled to the benefits of the
certificate, the indenture or any deposit agreement. Beneficial owners that are
not participants will be permitted to exercise their rights as an owner only
indirectly through participants and, if applicable, indirect participants.
Under the current rules and regulations affecting DTC, DTC will be
required to make book-entry transfers of securities among participants and to
receive and transmit payments to participants. Participants and indirect
participants with which beneficial owners of securities have accounts are also
required by these rules to make book-entry transfers and receive and transmit
such payments on behalf of their respective account holders.
Because DTC can act only on behalf of participants, who in turn act
only on behalf of other participants or indirect participants, and on behalf of
certain banks, trust companies and other persons approved by it, the ability of
a beneficial owner of securities issued in book-entry form to pledge those
securities to persons or entities that do not participate in the DTC system may
be limited due to the unavailability of physical certificates for the
securities.
DTC has advised us that it will take any action permitted to be taken
by a registered holder of any securities under the certificate, the indenture or
any deposit agreement only at the direction of one or more participants to whose
accounts with DTC the securities are credited.
DTC has further advised us that its management is aware that some
computer applications, systems, and the like for processing data that are
dependent upon calendar dates, including dates before, on, and after January 1,
2000, may encounter "Year 2000 problems." DTC has informed its participants and
other members of the financial community that it has developed and is
implementing a program so that its computer systems, as they relate to the
timely payment of distributions to security holders, book-entry deliveries, and
settlement of trades within DTC, continue to function appropriately. This
program includes a technical assessment and a remediation plan, each of which is
complete. Additionally, DTC's plan includes a testing phase, which is expected
to be completed prior to December 31, 1999.
However, DTC's ability to perform properly its services is also
dependent upon other parties, including issuers and their agents, as well as
DTC's direct and indirect participants and third party vendors from whom DTC
licenses software and hardware, and third party vendors on whom DTC relies for
information or the provision of services, including telecommunication and
electrical utility service providers, among others. DTC has informed its
participants and other members of the financial community that it is contacting
and will continue to contact third party vendors from whom it acquires services
to impress upon them the importance of such services being Year 2000 compliant
and determine the extent of their efforts for Year 2000 remediation -- and, as
appropriate, testing -- of their services. In addition, DTC is in the process of
developing contingency plans that it considers appropriate.
26
<PAGE>
According to DTC, the information with respect to DTC has been provided
to its participants and other members of the financial community for
informational purposes only and is not intended to serve as a representation,
warranty, or contract modification of any kind.
Unless otherwise specified in the applicable prospectus supplement, a
book-entry security will be exchangeable for definitive securities registered in
the names of persons other than DTC or its nominee only if:
- DTC notifies us that it is unwilling or unable to continue as
depositary for the book-entry security or DTC ceases to be a
clearing agency registered under the Securities Exchange Act of
1934, as amended, at a time when DTC is required to be so
registered; or
- we execute and deliver to the applicable registrar, transfer agent,
trustee and/or depositary an order complying with the requirements
of the certificate, the indenture or any deposit agreement that the
book-entry security will be so exchangeable.
Any book-entry security that is exchangeable in accordance with the
preceding sentence will be exchangeable for securities registered in such names
as DTC directs.
If one of the events described in the immediately preceding paragraph
occurs, DTC is generally required to notify all participants of the availability
through DTC of definitive securities. Upon surrender by DTC of the book-entry
security representing the securities and delivery of instructions for
re-registration, the registrar, transfer agent, trustee or depositary, as the
case may be, will reissue the securities as definitive securities. After
reissuance of the securities, such persons will recognize the beneficial owners
of such definitive securities as registered holders of securities.
Except as described above:
- a book-entry security may not be transferred except as a whole
book-entry security by or among DTC, a nominee of DTC and/or a
successor depositary appointed by us; and
- DTC may not sell, assign or otherwise transfer any beneficial
interest in a book-entry security unless the beneficial interest is
in an amount equal to an authorized denomination for the securities
evidenced by the book-entry security.
None of Battle Mountain Gold, the trustees, any registrar and transfer
agent or any depositary, or any agent of any of them, will have any
responsibility or liability for any aspect of DTC's or any participant's records
relating to, or for payments made on account of, beneficial interests in a
book-entry security.
PLAN OF DISTRIBUTION
We may issue, offer, sell or otherwise distribute the securities
through agents, through or to underwriters or dealers, or directly.
We may designate agents who agree to use their reasonable efforts to
solicit purchases for the period of their appointment or to sell securities on a
continuing basis.
If we use underwriters for a sale of securities, the underwriters will
acquire the securities for their own account. The underwriters may resell the
securities in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The obligations of the underwriters to purchase the securities will be subject
to the conditions set forth in the applicable underwriting agreement. The
underwriters will be obligated to purchase all the securities of the series
offered if any of the securities of that series are purchased. Any initial
public offering price and any discounts or concessions allowed or re-allowed or
paid to dealers may be changed from time to time.
We may also sell securities directly to one or more purchasers without
using underwriters or agents.
Underwriters, dealers and agents that participate in the distribution
of the securities may be underwriters as defined in the Securities Act of 1933,
as amended, and any discounts or commissions they receive from us and any profit
on their resale of the securities may be treated as underwriting discounts and
commissions under the Securities Act of 1933, as amended. The applicable
27
<PAGE>
prospectus supplement will identify any underwriters, dealers or agents and will
describe their compensation. We may have agreements with the underwriters,
dealers and agents to indemnify them against certain civil liabilities,
including liabilities under the Securities Act of 1933, as amended.
Underwriters, dealers and agents may engage in transactions with or
perform services for us or our subsidiaries in the ordinary course of their
businesses.
Any common stock purchase rights we issue will be attached to specified
outstanding securities of Battle Mountain Gold, or will be distributed to the
holders of specified outstanding securities of Battle Mountain Gold, as of a
specified record date. Any shares of common stock offered pursuant to such
common stock purchase rights will be issued by Battle Mountain Gold directly to
the holders exercising the common stock purchase rights. Battle Mountain Gold
may elect to retain dealer-managers or other agents in connection with any
common stock purchase rights offering to provide marketing assistance or to
solicit exercises of common stock purchase rights. The identity of any such
dealer-managers or other agents and the compensation to be provided by Battle
Mountain Gold to such dealer-managers or other agents will be described in the
related prospectus supplement.
If common stock purchase rights are issued, we may enter into
arrangements with one or more standby purchasers, which could include one or
more existing holders of our outstanding securities, providing for the sale to
the standby purchasers of all or a portion of the shares of common stock not
subscribed for by holders of the common stock purchase rights. In that case, the
relevant prospectus supplement will describe the standby purchaser or
purchasers, any material relationships with Battle Mountain Gold and the terms
and conditions of the standby purchase arrangements.
TRADING MARKETS AND LISTING OF SECURITIES
Unless otherwise specified in the applicable prospectus supplement,
each class or series of securities will be a new issue with no established
trading market, other than the common stock which is listed on the New York
Stock Exchange, the Australian Stock Exchange Limited, the Swiss Stock Exchanges
and the Frankfurt Stock Exchange. We may elect to list any other class or series
of securities on any exchange, but we are not obligated to do so. It is possible
that one or more underwriters may make a market in a class or series of
securities, but the underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. We cannot give any
assurance as to the liquidity of the trading market for any of the securities.
STABILIZATION ACTIVITIES
Any underwriter may engage in over-allotment, stabilizing transactions,
short-covering transactions and penalty bids in accordance with Regulation M
under the Securities Exchange Act of 1934, as amended. Over-allotment involves
sales in excess of the offering size, which create a short position. Stabilizing
transactions permit bids to purchase the underlying security so long as the
stabilizing bids do not exceed a specified maximum. Short-covering transactions
involve purchases of the securities in the open market after the distribution is
completed to cover short positions. Penalty bids permit the underwriters to
reclaim a selling concession from a dealer when the securities originally sold
by the dealer are purchased in a covering transaction to cover short positions.
Those activities may cause the price of the securities to be higher than it
would otherwise be. If commenced, the underwriters may discontinue any of the
activities at any time.
LEGAL MATTERS
The legality of the securities will be passed upon for Battle Mountain
Gold by its Vice President, General Counsel and Secretary, Greg V. Etter. As of
the date of this prospectus, Mr. Etter owns approximately 4,534 shares of Battle
Mountain Gold common stock through Battle Mountain Gold's 401(k) savings plan
and holds employee stock options to purchase 183,000 shares of Battle Mountain
Gold common stock, of which options to purchase 43,350 shares are currently
exercisable.
Mayor, Day, Caldwell & Keeton, L.L.P., Houston, Texas, our outside
legal counsel, and Mr. Etter will issue opinions about some legal matters in
connection with each offering and issuance of securities pursuant to this
prospectus.
EXPERTS
The financial statements incorporated in this prospectus by reference
to the Annual Report on Form 10-K for the year ended December 31, 1998, have
been so incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
The financial statements incorporated in this prospectus by reference
to the Annual Report on Form 10-K/A for the year ended December 31, 1998, have
been so incorporated in reliance on the report of PricewaterhouseCoopers,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
28
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Estimated expenses, other than underwriting discounts and commissions,
in connection with the issuance and distribution of the securities are as
follows:
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee..... $ 41,700
Rating agency fees................................ 25,000
Legal fees and expenses........................... 100,000
Accounting fees and expenses...................... 50,000
Trustee's fees and expenses....................... 10,000
Printing and engraving............................ 100,000
Miscellaneous..................................... 23,300
---------
Total................................... $ 350,000
=========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article VII of the Battle Mountain Gold Bylaws provides for the
indemnification of officers and directors of Battle Mountain Gold to the extent
authorized by the Nevada General Corporation Law. Pursuant to Section 78.7502 of
the Nevada General Corporation Law, Battle Mountain Gold 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 Gold 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
Gold 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 78.752 of the Nevada General Corporation Law also enables a
corporation to purchase and maintain insurance for its present and former
directors, officers, employees and agents. Accordingly, Battle Mountain Gold 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 Gold, including liabilities under
federal securities laws.
The above discussion of Battle Mountain Gold's Bylaws and of Sections
78.7502 and 78.752 of the Nevada General Corporation Law is not intended to be
exhaustive and is respectively qualified in its entirety by such Bylaws and
statute.
Additionally, Article Tenth of Battle Mountain Gold's charter limits
the liability of Battle Mountain Gold'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:
- for acts or omissions which involve intentional misconduct, fraud or
a knowing violation of law; or
- the payment of dividends in violation of Section 78.300 of the
Nevada General Corporation Law.
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 omissions prior to such repeal or
modification.
II-1
<PAGE>
Reference is made to the form of underwriting agreements to be
incorporated by reference in this registration statement for a description of
the indemnification arrangements Battle Mountain Gold agrees to in connection
with offerings of the securities registered by this registration statement.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
<TABLE>
<CAPTION>
EXHIBIT NO. DOCUMENT
- ----------- --------
<S> <C> <C>
+1 -- The form of any underwriting agreement will be filed as an exhibit
to a current report of Battle Mountain Gold and incorporated in this
registration statement by reference.
*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 Battle
Mountain Gold's Current Report on Form 8-K dated June 11, 1996).
*2(b) -- Combination Agreement effective as of March 11, 1996 by and between
Battle Mountain Gold and Hemlo Gold Mines Inc. (Annex C to Exhibit 20(a),
Joint Management Information Circular and Proxy Statement, to Battle
Mountain Gold's Current Report on Form 8-K dated June 11, 1996).
*3(a) -- Restated Articles of Incorporation of Battle Mountain Gold, as amended
and restated through July 19, 1996 (Exhibit 3(a) to Battle Mountain Gold's
Annual Report on Form 10-K for the year ended December 31, 1996).
*3(b) -- Bylaws of Battle Mountain Gold, as amended through March 21, 1997
(Exhibit 3(d) to Battle Mountain Gold's Annual Report on Form 10-K/A for
the year ended December 31, 1996).
*4(a) -- Rights Agreement, dated November 10, 1988, as amended and restated as
of July 19, 1996, between Battle Mountain Gold and The Bank of New York,
as Rights Agent (Exhibit 4(e) to Battle Mountain Gold's Current Report on
Form 8-K dated July 19, 1996).
*4(b) -- Third Amendment to Rights Agreement, dated and effective as of November 10,
1998, between Battle Mountain Gold and The Bank of New York, as Rights
Agent (Exhibit 4(a)(2) to Battle Mountain Gold's Annual Report on Form 10-K
for the fiscal year ended December 31, 1998).
*4(c) -- Certificate of Designations, Preferences and Rights of $3.25 Convertible
Preferred Stock of Battle Mountain Gold as filed with the Secretary of State
of the State of Nevada on May 18, 1993 (incorporated by reference to Exhibit 4(b)
to Battle Mountain Gold's current report on Form 8-K dated July 19, 1996).
+4(d) -- The form of any Deposit Agreement, with the related form of Depositary Receipt,
will be filed as an exhibit to a current report of Battle Mountain Gold and
incorporated in this registration statement by reference.
@4(e) -- Form of Indenture between Battle Mountain Gold and Chase Bank of Texas,
National Association, as Trustee governing the debt securities.
*4(f) -- Voting, Support and Exchange Trust Agreement dated as of July 19, 1996
between Battle Mountain Gold, Hemlo Gold Mines Inc. and CIBC Mellon Trust
Company (as successor to The R-M Trust Company) (Annex E to Exhibit 20(a),
Joint Management Information Circular and Proxy Statement, to Battle Mountain
Gold's Current Report on Form 8-K dated June 11, 1996).
*4(g) -- Fiscal and Paying Agency Agreement, dated as of January 4, 1990, between
Battle Mountain Gold and Citibank, N.A., Fiscal Agent (Exhibit 4(c) to Battle
Mountain Gold'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 Battle
Mountain Gold.
*10 -- Credit Agreement, dated October 1, 1999, between Canadian Imperial Bank of Commerce
and Battle Mountain Canada Ltd. (Exhibit 10 to Battle Mountain Gold's Current Report
on Form 8-K dated October 12, 1999)
@12 -- Statement of computation of ratio of earnings to combined fixed charges and
preferred stock dividends.
@23(a) -- Consent of Greg V. Etter, Esq., General Counsel and Secretary of
Battle Mountain Gold (included in Exhibit 5)
23(b) -- Consent of PricewaterhouseCoopers LLP, independent accountants.
II-2
<PAGE>
EXHIBIT NO. DOCUMENT
- ----------- --------
@23(c) -- Consent of Mayor, Day, Caldwell & Keeton, L.L.P.
23(d) -- Consent of PricewaterhouseCoopers, independent accountants.
@25 -- Statement of Eligibility and Qualification under Trust Indenture Act of
1939 of Chase Bank of Texas, National Association, Trustee, on Form T-1.
*99(a) -- Specimen Stock Certificate for the Common Stock of Battle Mountain Gold
(Exhibit 4(b) to Battle Mountain Gold's Annual Report on Form 10-K for
the year ended December 31, 1998).
*99(b) -- Specimen Stock Certificate for the Preferred Stock of Battle Mountain
Gold (Exhibit 1 to Battle Mountain Gold's Form 8-A dated May 10, 1993).
</TABLE>
- ----------------------------
+ To be incorporated by reference from a subsequently filed document if
applicable.
* Incorporated by reference from previously filed documents as indicated.
@ Previously filed as an Exhibit to this Registration Statement.
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 of 1933;
(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.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
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 with or furnished to the Commission by the
Registrar pursuant to Sections 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement;
(2) that, for the purposes of determining any liability under
the Securities Act of 1933, 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 of 1933, each filing of the Registrant's annual
report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d)
of the Securities Exchange Act of 1934) 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;
II-3
<PAGE>
(5) that, for purposes of determining any liability under the
Securities Act of 1933, 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 of 1933 shall be deemed to
be part of this registration statement as of the time it was
declared effective; and
(6) that, for the purpose of determining any liability under the
Securities Act of 1933, 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 of 1933 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 of 1933 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 of 1933 and will be governed by
the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of Securities Act of 1933, the undersigned
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 Houston, Texas, on the 1st day of November, 1999.
BATTLE MOUNTAIN GOLD COMPANY
By: /s/ JOHN A. KEYES
-------------------------------------
John A. Keyes
President and Chief Operating Officer
Date: November 1, 1999
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
(a) Principal Executive Officer
/s/ KARL E. ELERS Chief Executive November 1, 1999
- ------------------------------------ Officer and Director
Karl E. Elers
(b) Principal Financial Officer
/s/ PHILLIPS S. BAKER, JR. Vice President and Chief November 1, 1999
- ------------------------------------ Financial Officer
Phillips S. Baker, Jr.
(c) Principal Accounting Officer
/s/ JEFFREY L. POWERS Vice President and Controller November 1, 1999
- ------------------------------------
Jeffrey L. Powers
II-5
<PAGE>
SIGNATURE TITLE DATE
- --------- ----- ----
(d) Other Directors
PHILLIPS S. BAKER, JR., Attorney-in-fact Director November 1, 1999
- ----------------------------------------
Ian D. Bayer
PHILLIPS S. BAKER, JR., Attorney-in-fact Director November 1, 1999
- ----------------------------------------
Douglas J. Bourne
PHILLIPS S. BAKER, JR., Attorney-in-fact Director November 1, 1999
- ----------------------------------------
David L. Bumstead
PHILLIPS S. BAKER, JR., Attorney-in-fact Director November 1, 1999
- ----------------------------------------
Delo H. Caspary
PHILLIPS S. BAKER, JR., Attorney-in-fact Director November 1, 1999
- ----------------------------------------
Charles E. Childers
PHILLIPS S. BAKER, JR., Attorney-in-fact Director November 1, 1999
- ----------------------------------------
David W. Kerr
PHILLIPS S. BAKER, JR., Attorney-in-fact Director November 1, 1999
- ----------------------------------------
Terrence E. Lyons
PHILLIPS S. BAKER, JR., Attorney-in-fact Director November 1, 1999
- ----------------------------------------
Mary Mogford
PHILLIPS S. BAKER, JR., Attorney-in-fact Director November 1, 1999
- ----------------------------------------
William A. Wise
</TABLE>
II-6
<PAGE>
EXHIBIT 23(b)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3/A of our report dated February 2, 1999 relating to the
financial statements which appear in Battle Mountain Gold Company's Annual
Report on Form 10-K for the year ended December 31, 1998. We also consent to the
reference to us under the heading "Experts" in such registration statement.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Houston, Texas
November 1, 1999
<PAGE>
EXHIBIT 23(d)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3/A of our report dated April 28, 1999 relating to the
financial statements of Lihir Gold Limited which appear in Battle Mountain
Gold Company's Annual Report on Form 10-K/A for the year ended December 31,
1998. We also consent to the reference to us under the heading "Experts" in
such registration statement.
/s/ PRICEWATERHOUSECOOPERS
PricewaterhouseCoopers
/s/ J.C. Seeto
by J.C. Seeto
Partner
Port Moresby, Papua New Guinea
November 1, 1999
