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As filed with the Securities and Exchange Commission on September 8, 1995
Registration No. 33-________________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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FIRSTMISS GOLD INC.
(Exact name of registrant on Form S-3 as specified in its charter)
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<S> <C> <C>
NEVADA FirstMiss Gold Inc. 64-0748908
(State or Other Jurisdiction 6025 South Quebec Street, Suite 310 (I.R.S. Employer
of Incorporation) Englewood, Colorado 80111 Identification Number)
</TABLE>
(303) 771-9000
(Address, including ZIP code, and telephone number, including area code, of
registrant's principal executive offices)
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Donald S. Robson
Vice President and Chief Financial Officer
FirstMiss Gold Inc.
6025 South Quebec Street, Suite 310
Englewood, Colorado 80111
(303) 771-9000
(Name, address, including ZIP code, and telephone number, including area code,
of agent for service)
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Copies to:
Christopher L. Kaufman
Latham & Watkins
505 Montgomery Street, Suite 1900
San Francisco, California 94111-2562
(415) 391-0600
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
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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, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Proposed Amount of
Title of Each Class of Maximum Registration
Securities to be Registered Aggregate Fee
Offering
Price(1) (2)
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<S> <C> <C>
Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Preferred Stock, $.01 par value . . . . . . . . . . . . . . . . . . . . . . . . .
Common Stock, $.01 par value (3) . . . . . . . . . . . . . . . . . . . . . . . .
Equity Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Debt Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $200,000,000 $68,966
======================================================================================================================
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee, which
is calculated in accordance with Rule 457(o).
(2) Not specified as to each class of securities to be registered hereunder
pursuant to General Instruction II(D) to Form S-3 under the Securities
Act of 1933.
(3) Each share of Common Stock includes one common share purchase Right
under the Rights Agreement dated as of June 13, 1990 between the
Registrant and Ameritrust Company National Association, as Rights Agent.
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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 THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF ANY OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF
ANY SUCH STATE.
PROSPECTUS SUBJECT TO COMPLETION, DATED SEPTEMBER 8, 1995
FIRSTMISS GOLD INC.
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
EQUITY WARRANTS
DEBT WARRANTS
FirstMiss Gold Inc. (the "Company"), directly or through agents, dealers,
or underwriters designated from time to time, may offer, issue and sell,
together or separately, up to $200,000,000 in the aggregate of (a) secured or
unsecured debt securities (the "Debt Securities") of the Company, in one or more
series, which may be either senior debt securities (the "Senior Debt
Securities"), senior subordinated debt securities (the "Senior Subordinated Debt
Securities") or subordinated debt securities (the "Subordinated Debt
Securities"), (b) shares of preferred stock of the Company, par value $.01 per
share (the "Preferred Stock"), in one or more series, or fractional interests in
shares of Preferred Stock represented by depositary shares (the "Depositary
Shares"), (c) shares of common stock of the Company, par value $.01 per share
(the "Common Stock"), (d) warrants to purchase Common Stock or Preferred Stock
(the "Equity Warrants") or (e) Warrants to purchase Debt Securities (the "Debt
Warrants" and together with the Equity Warrants, the "Warrants"), or any
combination of the foregoing, either individually or as units consisting of one
or more of the foregoing, each on terms to be determined at the time of sale.
The Debt Securities may be issued as exchangeable and/or convertible Debt
Securities exchangeable for or convertible into shares of Common Stock or
Preferred Stock. The Preferred Stock may also be exchangeable for and/or
convertible into shares of Common Stock or another series of Preferred Stock.
The Debt Securities, the Preferred Stock, the Common Stock and the Warrants are
collectively referred to herein as the "Securities." When a particular series
of Securities is offered, a supplement to this Prospectus (each a "Prospectus
Supplement") will be delivered with this Prospectus. The Prospectus Supplement
will set forth the terms of the offering and sale of the offered Securities.
THE PURCHASE OF THE SECURITIES INVOLVES CERTAIN MATERIAL RISKS.
SEE "RISK FACTORS" COMMENCING ON PAGE 3.
Except as described more fully herein or as set forth in the Prospectus
Supplement relating to any offered Debt Securities, the Indenture will not
provide holders of Debt Securities protection in the event of a
highly-leveraged transaction, reorganization, restructuring, merger or similar
transaction involving the Company which could adversely affect holders of Debt
Securities. See "Description of Debt Securities -- Consolidation, Merger and
Sale of Assets."
The Company's Common Stock is traded on the Nasdaq National Market under
the symbol FRMG. On September 6, 1995, the last reported sale price of the
Common Stock as reported by Nasdaq was $22.875 per share. The Company has not
yet determined whether any of the Debt Securities, Preferred Stock or Warrants
offered hereby will be listed on any exchange or over-the-counter market. If
the Company decides to seek listing of any such Securities, the Prospectus
Supplement relating thereto will disclose such exchange or market.
-----------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMIS-
SION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A FEDERAL OFFENSE.
-----------------------
The Securities may be sold directly by the Company, through agents
designated from time to time or to or through underwriters or dealers. The
Company reserves the sole right to accept, and together with its agents, from
time to time, to reject in whole or in part any proposed purchase of Securities
to be made directly or through agents. See "Plan of Distribution." If any such
agents or underwriters are involved in the sale of any Securities, the names of
such agents or underwriters and any applicable fees, commissions or discounts
will be set forth in the applicable Prospectus Supplement.
This Prospectus may not be used to consummate sales of Securities unless
accompanied by the applicable Prospectus Supplement.
The date of this Prospectus is ___________________, 1995.
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IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE
SECURITIES AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
IN CONNECTION WITH THIS OFFERING, CERTAIN UNDERWRITERS AND SELLING
GROUP MEMBERS MAY ENGAGE IN PASSIVE MARKET MAKING TRANSACTIONS IN THE COMMON
STOCK ON THE NASDAQ NATIONAL MARKET IN ACCORDANCE WITH RULE 10B-6A UNDER THE
SECURITIES ACT OF 1934. SEE "PLAN OF DISTRIBUTION."
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 (together with all
amendments and exhibits thereto, the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
Securities offered hereby. This Prospectus does not contain all of the
information set forth in the Registration Statement, part of which has been
omitted in accordance with the rules and regulations of the Commission. For
further information about the Company and the Securities offered hereby,
reference is made to the Registration Statement, including the exhibits filed
as a part thereof and otherwise incorporated therein. Statements made in this
Prospectus as to the contents of any document referred to herein are not
necessarily complete, and in each instance reference is made to such document
for a more complete description, and each such statement is qualified in its
entirety by such reference.
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files periodic reports, proxy statements and other
information with the Commission. The Registration Statement, including the
exhibits thereto, as well as such reports and other information filed by the
Company with the Commission, can be inspected, without charge, and copied at
the public reference facilities maintained by the Commission at 450 Fifth
Street, N.W., Room 1024, Washington D.C., 20549; 7 World Trade Center, New
York, New York 10048 and 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. Copies of such materials can be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. Reports and other information concerning the Company can
also be inspected at the offices of the National Association of Securities
Dealers, Inc., 1735 K Street, N.W., Washington, D.C. 20006.
INFORMATION INCORPORATED BY REFERENCE
The following documents filed by the Company with the Commission
pursuant to the Exchange Act are incorporated by reference in this Prospectus:
(1) the Company's Annual Report on Form 10-K for the fiscal year ended June 30,
1995 and (2) all other documents subsequently filed pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus and
before the termination of the offering, which shall be deemed to be a part
hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is incorporated or
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
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The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon request, a copy of
any documents incorporated into this Prospectus by reference (other than
exhibits incorporated by reference into such document). Requests for documents
should be submitted to FirstMiss Gold Inc., 6025 South Quebec Street, Suite
310, Englewood, Colorado 80111, Attention: Secretary (telephone (303)
771-9000). The information relating to the Company contained in this
Prospectus does not purport to be comprehensive and should be read together
with the information contained in the documents incorporated or deemed to be
incorporated by reference herein.
THE COMPANY
FirstMiss Gold Inc. (the "Company") is engaged in the business of
mining and processing gold ores and exploration for such ores. The Company
owns and operates a property (the "Getchell Property") located in the Potosi
Mining District on the eastern side of the Osgood Mountain Range 35 miles
northeast of the town of Winnemucca, Nevada. Operations on the Getchell
Property include a pressure oxidation (autoclave) mill facility and an oxide
heap leach facility. Currently, sulfides ores for the mill are produced from
an underground mine known as the Getchell Main Underground Mine. Oxide ores for
the heap leach facility are produced from existing stockpiles. The Company is
actively conducting exploration on the 33,000-acre Getchell Property.
The Company was incorporated in Nevada in August 1987 by First
Mississippi Corporation ("First Mississippi"), a Mississippi corporation, for
the purpose of financing, developing and operating the Getchell gold mining
project and for conducting minerals exploration. Operations at the autoclave
mill facility and the oxide heap leach facility were commenced in February 1989
and June 1985, respectively, and as of June 30, 1995, the Company had produced
over 1.2 million ounces of gold. Approximately 81% of the Company's stock is
currently held by First Mississippi.
The Company's principal executive offices are located at 6025 South
Quebec Street, Suite 310, Englewood, Colorado 80111, and its telephone number
is (303) 771-9000.
RISK FACTORS
In addition to the other information in this Prospectus, prospective
purchasers of the Securities offered hereby should carefully consider the risk
factors set forth under the heading "Risk Factors" in "Management's Discussion
and Analysis of Financial Condition and Results of Operations" included in the
Company's most recently incorporated Annual Report on Form 10-K or Quarterly
Report on Form 10-Q. See "Information Incorporated by Reference."
USE OF PROCEEDS
The Company currently has no specific plans for the use of the
net proceeds from the sale of Securities offered hereby. However, the Company
currently anticipates that any such net proceeds would be used for general
corporate purposes, which may include but are not limited to working capital,
capital expenditures, repayment of indebtedness (including indebtedness to
First Mississippi) and acquisitions. When a particular series of Securities is
offered, the Prospectus Supplement relating thereto will set forth the
Company's intended use for the net proceeds received from the sale of such
Securities. Pending the application of the net proceeds, the Company expects
to invest such proceeds in short-term, interest-bearing instruments or other
investment-grade securities.
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RATIOS OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
The following table sets forth the unaudited consolidated
ratios of earnings to fixed charges and earnings to fixed charges and preferred
stock dividends for the Company for the periods indicated.
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<CAPTION>
Fiscal Year Ended June 30,
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1995 1994 1993 1992 1991
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<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges * 3.60 * 3.19 *
Ratio of earnings to fixed charges and preferred
stock dividends * 3.60 * 3.19 *
</TABLE>
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*For the fiscal years ended June 30, 1991, 1993 and 1995, earnings were
insufficient to cover fixed charges by $74,000, $3,129,000 and $19,088,000,
respectively. Therefore, no ratios are provided for these fiscal years.
For the purpose of calculating the ratio of earnings to fixed
charges and the ratio of earnings to fixed charges and preferred stock
dividends, earnings consist of income before income taxes and fixed charges
(exclusive of preferred stock dividends). For the purpose of calculating both
ratios, fixed charges include interest expense, capitalized interest and that
portion of rentals representative of an interest factor. Because the Company
did not distribute any preferred stock dividends during fiscal years 1991-1995,
the two above ratios are identical.
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GENERAL DESCRIPTION OF SECURITIES
The Company directly or through agents, dealers, or
underwriters designated from time to time, may offer, issue and sell, together
or separately, up to $200,000,000 in the aggregate of (a) secured or unsecured
debt securities (the "Debt Securities") of the Company, in one or more series,
which may be either senior debt securities (the "Senior Debt Securities"),
senior subordinated debt securities (the "Senior Subordinated Debt Securities")
or subordinated debt securities (the "Subordinated Debt Securities"), (b)
shares of preferred stock of the Company, par value $.01 per share (the
"Preferred Stock"), in one or more series, or fractional interests in shares of
Preferred Stock represented by depositary shares (the "Depositary Shares"), (c)
shares of common stock of the Company, par value $.01 per share (the "Common
Stock"), (d) warrants to purchase Common Stock or Preferred Stock (the "Equity
Warrants") or (e) warrants to purchase Debt Securities (the "Debt Warrants" and
together with the Equity Warrants, the "Warrants"), or any combination of the
foregoing, either individually or as units consisting of one or more of the
foregoing, each on terms to be determined at the time of sale. The Debt
Securities may be issued as exchangeable and/or convertible Debt Securities
exchangeable for or convertible into shares of Common Stock or Preferred Stock.
The Preferred Stock may also be exchangeable for and/or convertible into shares
of Common Stock or another series of Preferred Stock. The Debt Securities, the
Preferred Stock, the Common Stock and the Warrants are collectively referred to
herein as the "Securities." When a particular series of Securities is offered,
a supplement to this Prospectus (each a "Prospectus Supplement") will be
delivered with this Prospectus. The Prospectus Supplement will set forth the
terms of the offering and sale of the offered Securities.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and
provisions of the Debt Securities to which any Prospectus Supplement may
relate. The particular terms of the Debt Securities offered by any Prospectus
Supplement and the extent, if any, to which such general provisions do not
apply to the Debt Securities so offered will be described in the Prospectus
Supplement relating to such Debt Securities.
Debt Securities may be issued from time to time in series
under an indenture, and one or more indentures supplemental thereto
(collectively, the "Indenture"), between the Company and a trustee to be
identified in the applicable Prospectus Supplement (the "Trustee"). The terms
of the Debt Securities will include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939 (the
"TIA") as in effect on the date of the Indenture. The Debt Securities will be
subject to all such terms, and potential investors of the Debt Securities are
referred to the Indenture and the TIA for a statement thereof. The following
summary of certain provisions of the Indenture does not purport to be complete
and is qualified in its entirety by reference to the Indenture, including the
definitions therein of certain terms used below. As used under this caption,
unless the context otherwise requires, "Offered Debt Securities" shall mean the
Debt Securities offered by this Prospectus and the accompanying Prospectus
Supplement.
GENERAL
The Indenture will provide for the issuance of Debt Securities
in series and will not limit the principal amount of Debt Securities which may
be issued thereunder. In addition, except as may be provided in the Prospectus
Supplement relating to such Debt Securities, the Indenture will not limit the
amount of additional indebtedness the Company may incur.
The applicable Prospectus Supplement or Prospectus Supplements
will describe the following terms of the series of Offered Debt Securities in
respect of which this Prospectus is being delivered: (1) the title of the
Offered Debt Securities; (2) whether the Offered Debt Securities are
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Senior Debt Securities, Senior Subordinated Debt Securities or Subordinated
Debt Securities or any combination thereof; (3) any limit upon the aggregate
principal amount of the Offered Debt Securities; (4) the date or dates on which
the principal of the Offered Debt Securities is payable; (5) the rate or rates
at which the Offered Debt Securities will bear interest, if any, or the manner
in which such rate or rates are determined; (6) the date or dates from which
any such interest will accrue, the interest payment dates on which any such
interest on the Offered Debt Securities will be payable and the record dates
for the determination of holders to whom interest is payable; (7) the place or
places where the principal of and any interest on the Offered Debt Securities
will be payable; (8) the obligation of the Company, if any, to redeem, purchase
or repay the Offered Debt Securities in whole or in part pursuant to any
sinking fund or analogous provisions or at the option of the holders and the
price or prices at which and the period and periods within which and the terms
and conditions upon which the Offered Debt Securities shall be redeemed,
purchased or repaid pursuant to such obligation; (9) the denominations in which
any Offered Debt Securities will be issuable, if other than denominations of
U.S. $1,000 and any integral multiple thereof; (10) if other than the principal
amount thereof, the portion of the principal amount of the Offered Debt
Securities of the series which will be payable upon declaration of the
acceleration of the maturity thereof; (11) any addition to or change in the
covenants which apply to the Offered Debt Securities; (12) any Events of
Default with respect to the Offered Debt Securities, if not otherwise set forth
under "Events of Default"; (13) whether the Offered Debt Securities will be
issued in whole or in part in global form; the terms and conditions, if any,
upon which such global Offered Debt Securities may be exchanged in whole or in
part for other individual securities, and the depositary for the Offered Debt
Securities; (14) the terms and conditions, if any, upon which the Offered Debt
Securities shall be exchanged for or converted into other securities or
property; (15) the nature and terms of the security for any secured Offered
Debt Securities; and (16) any other terms of the Offered Debt Securities which
terms shall not be inconsistent with the provisions of the Indenture.
Debt Securities may be issued at a discount from their
principal amount ("Original Issue Discount Securities"). Federal income tax
considerations and other special considerations applicable to any such Original
Issue Discount Securities will be described in the applicable Prospectus
Supplement.
Debt Securities may be issued in bearer form, with or without
coupons. Federal income tax considerations and other special considerations
applicable to bearer securities will be described in the applicable Prospectus
Supplement.
Unless otherwise indicated in this Prospectus or a Prospectus
Supplement, the Debt Securities will not have the benefit of any covenants that
limit or restrict the Company's business or operations, the pledging of the
Company's assets or the incurrence of indebtedness by the Company.
STATUS OF DEBT SECURITIES
The Senior Debt Securities will be unsubordinated obligations
of the Company and will rank on a parity with all other unsecured and
unsubordinated indebtedness of the Company.
The obligations of the Company pursuant to Senior Subordinated
Debt Securities will be subordinate in right of payment, to the extent and in
the manner set forth in the Indenture, to all Senior Indebtedness of the
Company. Except to the extent set forth in the Prospectus Supplement, "Senior
Indebtedness" of the Company is defined to mean the principal of, and premium,
if any, and any interest (including interest accruing subsequent to the
commencement of any proceeding for the bankruptcy or reorganization of the
Company under any applicable bankruptcy, insolvency or similar law now or
hereafter in effect) on (a) all indebtedness of the Company whether heretofore
or hereafter incurred (i) for borrowed money or (ii) in connection with the
acquisition by the Company or a subsidiary of assets other than in the ordinary
course of business, for the payment of which the Company is liable directly or
indirectly by guarantee, letter of credit, obligation to purchase or acquire or
otherwise, or the payment of which is secured by a lien, charge or encumbrance
on assets acquired
6
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by the Company, (b) amendments, modifications, renewals, extensions and
deferrals of any such indebtedness, and (c) any indebtedness issued in exchange
for any such indebtedness (clauses (a) through (c) hereof being collectively
referred to herein as "Debt"); provided, however, that the following will not
constitute Senior Indebtedness with respect to Senior Subordinated Debt
Securities: (1) any Debt as to which, in the instrument evidencing such Debt
or pursuant to which such Debt was issued, it is expressly provided that such
Debt is subordinate in right of payment to all Debt of the Company not
expressly subordinated to such Debt; (2) any Debt which by its terms refers
explicitly to the Senior Subordinated Debt Securities and states that such Debt
shall not be senior in right of payment; and (3) any Debt of the Company in
respect of the Senior Subordinated Debt Securities or any Subordinated Debt
Securities. The Company will not issue Debt which is subordinated in right of
payment to any other Debt of the Company and which is not expressly made pari
passu with, or subordinate and junior in right of payment to, the Senior
Subordinated Debt Securities.
The obligations of the Company pursuant to Subordinated Debt
Securities will be subordinate in right of payment to all Senior Indebtedness
of the Company and to any Senior Subordinated Debt Securities; provided,
however, that the following will not constitute Senior Indebtedness with
respect to Subordinated Debt Securities: (1) any Debt as to which, in the
instrument evidencing such Debt or pursuant to which such Debt was issued, it
is expressly provided that such Debt is subordinate in right of payment to all
Debt of the Company not expressly subordinated to such Debt; and (2) any Debt
of the Company in respect of Subordinated Debt Securities and any Debt which by
its terms refers explicitly to the Subordinated Debt Securities and states that
such Debt shall not be senior in right of payment.
No payment pursuant to the Senior Subordinated Debt Securities
or the Subordinated Debt Securities, as the case may be, may be made unless all
amounts of principal, premium, if any, and interest then due on all applicable
Senior Indebtedness of the Company shall have been paid in full or if there
shall have occurred and be continuing beyond any applicable grace period a
default in any payment with respect to any such Senior Indebtedness, or if
there shall have occurred any event of default with respect to any such Senior
Indebtedness permitting the holders thereof to accelerate the maturity thereof,
or if any judicial proceeding shall be pending with respect to any such
default. However, the Company may make payments pursuant to the Senior
Subordinated Debt Securities or the Subordinated Debt Securities, as the case
may be, if a default in payment or an event of default with respect to the
Senior Indebtedness permitting the holder thereof to accelerate the maturity
thereof has occurred and is continuing and judicial proceedings with respect
thereto have not been commenced within a certain number of days of such default
in payment or event of default. Upon any distribution of the assets of the
Company upon dissolution, winding-up, liquidation or reorganization, the
holders of Senior Indebtedness of the Company will be entitled to receive
payment in full of principal, premium, if any, and interest (including interest
accruing subsequent to the commencement of any proceeding for the bankruptcy or
reorganization of the Company under any applicable bankruptcy, insolvency or
similar law now or hereafter in effect) before any payment is made on the
Senior Subordinated Debt Securities or Subordinated Debt Securities, as
applicable. By reason of such subordination, in the event of insolvency of the
Company, holders of Senior Indebtedness of the Company may receive more,
ratably, and holders of the Senior Subordinated Debt Securities or Subordinated
Debt Securities, as applicable, having a claim pursuant to the Senior
Subordinated Debt Securities or Subordinated Debt Securities, as applicable,
may receive less, ratably, than the other creditors of the Company. Such
subordination will not prevent the occurrence of any event of default (an
"Event of Default") in respect of the Senior Subordinated Debt Securities or
the Subordinated Debt Securities.
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<PAGE> 9
CONVERSION RIGHTS
The terms, if any, on which Debt Securities of a series may be
exchanged for or converted into shares of Common Stock or Preferred Stock will
be set forth in the Prospectus Supplement relating thereto.
EXCHANGE, REGISTRATION, TRANSFER AND PAYMENT
Unless otherwise specified in the applicable Prospectus
Supplement, payment of principal, premium, if any, and any interest on the Debt
Securities will be payable, and the exchange of and the transfer of Debt
Securities will be registerable, at the office of the Trustee or at any other
office or agency maintained by the Company for such purpose subject to the
limitations of the Indenture. Unless otherwise indicated in the applicable
Prospectus Supplement, the Debt Securities will be issued in denominations of
U.S. $1,000 or integral multiples thereof. No service charge will be made for
any registration of transfer or exchange of the Debt Securities, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge imposed in connection therewith.
BOOK-ENTRY DEBT SECURITIES
The Debt Securities of a series may be issued in the form of
one or more Global Securities (the "Global Securities") that will be deposited
with a Depositary or its nominee identified in the applicable Prospectus
Supplement. In such a case, one or more Global Securities will be issued in a
denomination or aggregate denominations equal to the portion of the aggregate
principal amount of outstanding Debt Securities of the series to be represented
by such Global Security or Securities. Each Global Security will be deposited
with such Depositary or nominee or a custodian therefor and will bear a legend
regarding the restrictions on exchanges and registration of transfer thereof
referred to below and any such other matters as may be provided for pursuant to
the applicable Indenture.
Notwithstanding any provision of the Indenture or any Debt
Security described herein, no Global Security may be transferred to, or
registered or exchanged for Debt Securities registered in the name of, any
person other than the Depositary for such Global Security or any nominee of
such Depositary, and no such transfer may be registered, unless (i) the
Depositary has notified the Company that it is unwilling or unable to continue
as Depositary for such Global Security or has ceased to be qualified to act as
such as required by the applicable Indenture, (ii) the Company executes and
delivers to the Trustee an order that such Global Security shall be so
transferable, registrable and exchangeable, and such transfers shall be
registrable, or (iii) there shall exist such circumstances, if any, as may be
described in the applicable Prospectus Supplement. All Debt Securities issued
in exchange for a Global Security or any portion thereof will be registered in
such names as the Depositary may direct.
The specific terms of the depositary arrangement with respect
to any portion of a series of Debt Securities to be represented by a Global
Security will be described in the applicable Prospectus Supplement. The
Company expects that the following provisions will apply to depositary
arrangements.
Unless otherwise specified in the applicable Prospectus
Supplement, Debt Securities which are to be represented by a Global Security to
be deposited with or on behalf of a Depositary will be represented by a Global
Security registered in the name of such Depositary or its nominee. Upon the
issuance of such Global Security and the deposit of such Global Security with
or on behalf of the Depositary for such Global Security, the Depositary will
credit, on its book-entry registration and transfer system, the respective
principal amounts of the Debt Securities represented by such Global Security to
the accounts of institutions that have accounts with such Depositary or its
nominee ("participants"). The accounts to be credited will be designated by
the underwriters or agents of such Debt Securities or by the Company, if such
Debt Securities are offered and sold directly by the Company. Ownership of
beneficial interests in such Global Security will be limited to participants or
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persons that may hold interests through participants. Ownership of beneficial
interests by participants in such Global Security will be shown on, and the
transfer of that ownership interest will be effected only through, records
maintained by the Depositary or its nominee for such Global Security.
Ownership of beneficial interests in such Global Security by Persons that hold
through participants will be shown on, and the transfer of that ownership
interest within such participant will be effected only through, records
maintained by such participant. The laws of some jurisdictions require that
certain purchasers of securities take physical delivery of such securities in
certificated form. The foregoing limitations and such laws may impair the
ability to transfer beneficial interests in such Global Securities.
So long as the Depositary for a Global Security, or its
nominee, is the registered owner of such Global Security, such Depositary or
such nominee, as the case may be, will be considered the sole owner or holder
of the Debt Securities represented by such Global Security for all purposes
under the Indenture. Unless otherwise specified in the applicable Prospectus
Supplement, owners of beneficial interests in such Global Security will not be
entitled to have Debt Securities of the series represented by such Global
Security registered in their names, will not receive or be entitled to receive
physical delivery of Debt Securities of such series in certified form and will
not be considered the holders thereof for any purposes under the Indenture.
Accordingly, each person owning a beneficial interest in such Global Security
must rely on the procedures of the Depositary and, if such person is not a
participant, on the procedures of the participant through which such person
owns its interest, to exercise any rights of a holder under the Indenture. If
the Company requests any action of holders or an owner of a beneficial interest
in such Global Security desires to give any notice or take any action a holder
is entitled to give or take under the Indenture, the Depositary will authorize
the participants to give such notice or take such action, and participants
would authorize beneficial owners owning through such participants to give such
notice or take such action or would otherwise act upon the instructions of
beneficial owners owning through them.
Notwithstanding any other provisions to the contrary in the
Indenture, the rights of the beneficial owners of the Debt Securities to
receive payment of the principal and premium, if any, of and interest on such
Debt Securities, on or after the respective due dates expressed in such Debt
Securities, or to institute suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the
consent of the beneficial owners.
Principal of and any interest on a Global Security will be
payable in the manner described in the applicable Prospectus Supplement.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of any holders of outstanding
Debt Securities, may not consolidate with or merge into, or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
property or assets to any person unless (a) the Company is the surviving
corporation or the entity or the person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made is a corporation organized and existing under the laws of the United
States, any state thereof or the District of Columbia; (b) the entity or person
formed by or surviving any such consolidation or merger (if other than the
Company) or the entity or person to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made assumes all the
obligations of the Company under the Debt Securities and the Indenture; and (c)
immediately prior to and after the transaction no Default or Event of Default
exists.
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Except as may be described in a Prospectus Supplement
applicable to a particular series of Debt Securities, there are no covenants or
other provisions in the Indenture providing for a put or increased interest or
otherwise that would afford holders of Debt Securities additional protection in
the event of a recapitalization transaction, a change of control of the Company
or a highly leveraged transaction.
COVENANTS OF THE COMPANY
The applicable Prospectus Supplement will describe any
material covenants in respect of a series of Offered Debt Securities. Other
than the covenants of the Company included in the Indenture as described above
or as described in the applicable Prospectus Supplement, the Indenture will not
provide holders of Debt Securities protection in the event of a
highly-leveraged transaction, reorganization, restructuring, merger or similar
transaction involving the Company which could adversely affect holders of Debt
Securities.
EVENTS OF DEFAULT
Unless otherwise specified in the applicable Prospectus
Supplement, the following will constitute Events of Default under the Indenture
with respect to Debt Securities of any series: (a) failure to pay principal of
any Debt Security of that series when due and payable at maturity, upon
redemption or otherwise; (b) failure to pay any interest on any Debt Security
of that series when due, and the Default continues for 30 days; (c) an Event of
Default, as defined in the Debt Securities of that series, occurs and is
continuing, or the Company fails to comply with any of its other agreements in
the Debt Securities of that series or in the Indenture with respect to that
series and the Default continues for the period and after the notice provided
therein (and described below); and (d) certain events of bankruptcy, insolvency
or reorganization. A Default under clause (c) above is not an Event of Default
with respect to a particular series of Securities until the Trustee or the
holders of at least 25% in principal amount of the then outstanding Securities
of that series notify the Company of the Default and the Company does not cure
the Default within 30 days after receipt of the notice. The notice must
specify the Default, demand that it be remedied and state that the notice is a
"Notice of Default."
If an Event of Default with respect to outstanding Debt
Securities of any series (other than an Event or Default relating to certain
events of bankruptcy, insolvency or reorganization) shall occur and be
continuing, either the Trustee or the holders of at least 25% in principal
amount of the outstanding Debt Securities of that series by notice, as provided
in the Indenture, may declare the unpaid principal amount (or, if the Debt
Securities of that series are Original Issue Discount Securities, such lesser
amount as may be specified in the terms of that series) of, and any accrued and
unpaid interest on, all Debt Securities of that series to be due and payable
immediately. However, at any time after a declaration of acceleration with
respect to Debt Securities of any series has been made, but before a judgment
or decree based on such acceleration has been obtained, the holders of a
majority in principal amount of the outstanding Debt Securities of that series
may, under certain circumstances, rescind and annul such acceleration. For
information as to waiver of defaults, see "Modification and Waiver" below.
The Indenture will provide that, subject to the duty of the
Trustee during an Event of Default to act with the required standard of care,
the Trustee will be under no obligation to exercise any of its rights or powers
under the applicable Indenture at the request or direction of any of the
holders, unless such holders shall have offered to the Trustee reasonable
security or indemnity. Subject to certain provisions, including those
requiring security or indemnification of the Trustee, the holders of a majority
in principal amount of the outstanding Debt Securities of any series will have
the right to 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.
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The Company will be required to furnish to the Trustee under
the Indenture annually a statement as to the performance by the Company of its
obligations under that Indenture and as to any default in such performance.
MODIFICATION AND WAIVER
Subject to certain exceptions, the Company and the Trustee may
amend the Indenture or the Debt Securities with the written consent of the
holders of a majority in principal amount of the then outstanding Debt
Securities of each series affected by the amendment with each series voting as
a separate class. The holders of a majority in principal amount of the then
outstanding Debt Securities of any series may also waive compliance in a
particular instance by the Company with any provision of the Indenture with
respect to the Debt Securities of that series; provided, however, that without
the consent of each holder of Debt Securities affected, an amendment or waiver
may not (i) reduce the percentage of the principal amount of Debt Securities
whose holders must consent to an amendment or waiver; (ii) reduce the rate or
change the time for payment of interest on any Debt Security; (iii) reduce the
principal of or change the fixed maturity of any Debt Security, or alter the
redemption provisions which respect thereto; (iv) make any Debt Security
payable in money other than that stated in the Debt Security; (v) make any
change in the provisions concerning waivers of Default or Events of Default by
holders or the rights of holders to recover the principal of or interest on any
Debt Security; or (vi) waive a default in the payment of the principal of, or
interest on, any Debt Security, except as otherwise provided in the Indenture.
The Company and the Trustee may amend the Indenture or the Debt Securities
without notice to or the consent of any holder of a Debt Security: (i) to cure
any ambiguity, defect or inconsistency; (ii) to comply with the Indenture's
provisions with respect to successor corporations; (iii) to comply with any
requirements of the Commission in connection with the qualification of the
Indenture under the TIA; (iv) to provide for Debt Securities in addition to or
in place of certificated Debt Securities; (v) to add to, change or eliminate
any of the provisions of the Indenture in respect of one of more series of Debt
Securities, provided, however, that any such addition, change or elimination
(A) shall neither (1) apply to any Debt Security of any series created prior to
the execution of such amendment and entitled to the benefit of such provision,
nor (2) modify the rights of a holder of any such Debt Security with respect to
such provision, or (B) shall become effective only when there is no outstanding
Debt Security of any series created prior to such amendment and entitled to the
benefit of such provision; (vi) to make any change that does not adversely
affect in any material respect the interest on any holder; or (vii) to
establish additional series of Debt Securities as permitted by the Indenture.
Subject to certain exceptions, the holders of a majority in
principal amount of the then outstanding Debt Securities of any series, by
notice to the Trustee, may waive an existing Default or Event of Default and
its consequences except a Default or Event of Default in the payment of the
principal of or interest on any Debt Security with respect to the Debt
Securities of that series.
TERMINATION OF THE COMPANY'S OBLIGATIONS UNDER THE DEBT SECURITIES AND THE
INDENTURE
Except as otherwise described below, the Company may terminate
its obligations under the Debt Securities and the Indenture with respect to the
Debt Securities if:
(a) all previously authenticated and delivered (other than
destroyed, lost or stolen Debt Securities which have been replaced or Debt
Securities which are paid or Debt Securities for whose payment money or
securities has theretofore been held in trust and thereafter repaid to the
Company) have been delivered to the Trustee for cancellation and the Company
has paid all sums payable by it under the Indenture; or
(b) (1) the Debt Securities mature within one year; and
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(2) the Company irrevocably deposits in trust with
the Trustee during such one-year period, under the terms of an irrevocable
trust agreement in form and substance satisfactory to the Trustee, as trust
funds solely for the benefit of the holders of Debt Securities for that
purpose, money or U.S. Government Obligations, or a combination thereof, with
the U.S. Government Obligations maturing as to principal and interest in such
amounts and at such times as are sufficient, without consideration of any
reinvestment of such interest, to pay principal of and interest on the Debt
Securities to maturity and to pay all other sums payable by it under the
Indenture; or
(c) (1) the Company irrevocably deposits in trust with
the Trustee under the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee, as trust funds solely for the benefit of
the holders of Debt Securities for that purpose, money or U.S. Government
Obligations, or a combination thereof, with the U.S. Government Obligations
maturing as to principal and interest in such amounts and at such times as are
sufficient, without consideration of any reinvestment of such interest, to pay
principal of and interest on the Debt Securities to maturity;
(2) The Company shall have delivered to the Trustee
(A) a ruling directed to the Trustee received from the Internal Revenue Service
to the effect that the holders of the Debt Securities will not recognize
income, gain or loss for federal income tax purposes as a result of the
Company's exercise of its option under this clause (c) and will be subject to
federal income tax on the same amount and in the same manner and at the same
times as would have been the case if such option had not been exercised, or (B)
an opinion of counsel to the same effect as the ruling described in subclause
(A) above accompanied by a ruling to that effect published by the Internal
Revenue Service, unless there has been a change in the applicable federal
income tax law since the date of the Indenture such that a ruling from the
Internal Revenue Service is no longer required;
(3) The Company has paid or caused to be paid all
sums then payable by the Company under the Indenture; and
(4) the Company has delivered to the Trustee an
officers' certificate and an opinion of counsel, each stating that all
conditions precedent provided for in this clause (c) relating to termination of
obligations of the Company have been complied with.
The Company's obligations under sections of the Indenture
relating to the registrar and the paying agent, their obligations, the
maintenance of a list of holders, transfers of Debt Securities, replacement of
securities, payment (together with payment obligations under the Debt
Securities), compensation and indemnity of the Trustee, replacement of the
Trustee and repayment to the Company of excess money held by the Trustee or the
paying Agent, shall survive until the Debt Securities are no longer
outstanding. If the ruling from the Internal Revenue Service or opinion of
counsel referred to in clause (c)(2) above is based on or assumes that the
Company's payment obligations under the Indenture or its payment obligations
under the Debt Securities will continue (or is silent with respect thereto),
then such discharge shall constitute only a "covenant defeasance" and,
consequently, the Company shall remain liable for the payment of the Debt
Securities. However, if and when a ruling from the Internal Revenue Service or
opinion of counsel referred to in clause (c)(2) above is able to be provided
specifically without regard to, and not in reliance upon, the continuance of
the Company's payment obligations under the Indenture and its payment
obligations under the Debt Securities, then the Company's payment obligations
under the Indenture and the Debt Securities shall cease upon delivery to the
Trustee of such ruling or opinion of counsel and compliance with the other
conditions precedent provided for in clause (c) above relating to the
satisfaction and discharge of the Indenture. In such a case (a "legal
defeasance") holders would be able to look only to the trust fund for payment
of principal or interest on the Debt Securities.
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REGARDING THE TRUSTEES
The Trustee with respect to the first series of Debt
Securities, if any, will be identified in the Prospectus Supplement relating to
such Debt Securities. Other Trustees may be designated for any subsequent
series of Debt Securities. The Indenture and provisions of the TIA
incorporated by reference therein, contain certain limitations on the rights of
the Trustee, should it become a creditor of the Company, to obtain payment of
claims in certain cases, or to realize on certain property received in respect
of any such claim, as security or otherwise. The Trustee and its affiliates
engage in, and will be permitted to continue to engage in, other transactions
with the Company and its affiliates; provided, however, that if it acquires any
conflicting interest (as defined), it must eliminate such conflict or resign.
The holders of a majority in principal amount of the then
outstanding Debt Securities of any series will have the right to direct the
time, method and place of conducting any proceeding for exercising any remedy
available to the Trustee. The TIA and the Indenture provide that in case an
Event of Default shall occur (and be continuing), the Trustee will be required,
in the exercise of its rights and powers, to use the degree of care and skill
of a prudent man in the conduct of his own affairs. Subject to such provision,
the Trustee will be under no obligation to exercise any of its rights or powers
under the Indenture at the request of any of the holders of the Debt Securities
issued thereunder, unless they have offered to the Trustee indemnity
satisfactory to it.
DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the Preferred Stock
sets forth certain general terms and provisions of the Preferred Stock to which
any Prospectus Supplement may relate. Certain other terms of any series of the
Preferred Stock offered by any Prospectus Supplement will be described in such
Prospectus Supplement. The description of certain provisions of the Preferred
Stock set forth below and in any Prospectus Supplement does not purport to be
complete and is subject to and qualified in its entirety by reference to the
Company's Articles of Incorporation, as amended (the "Articles of
Incorporation"), and the certificate of designation (a "Certificate of
Designation") relating to each series of the Preferred Stock which will be
filed with the Commission and incorporated by reference in the Registration
Statement of which this Prospectus is a part at or prior to the time of the
issuance of such series of the Preferred Stock. As of August 22, 1995, the
Company had no shares of Preferred Stock outstanding.
GENERAL
The Company has the authority to issue up to 10,000,000 shares
of preferred stock, $.01 par value per share ("preferred stock of the Company,"
which term, as used herein, includes the Preferred Stock offered hereby).
Under the Articles of Incorporation, the Board of Directors of the Company is
authorized without further stockholder action to designate and provide for the
issuance of such shares of preferred stock of the Company, in one or more
series, with such voting powers, full or limited, and with such designations,
preferences and relative participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as shall be stated in the
resolution or resolutions providing for the issue of a series of such stock
adopted, at any time or from time to time, by the Board of Directors of the
Company (as used herein the term "Board of Directors of the Company" includes
any duly authorized committee thereof).
The Preferred Stock shall have the dividend, liquidation,
redemption and voting rights set forth below unless otherwise provided in a
Prospectus Supplement relating to a particular series of the Preferred Stock.
Reference is made to the Prospectus Supplement relating to the particular
series of the Preferred Stock offered thereby for specific terms, including:
(i) the designation and stated value per share of such Preferred Stock and the
number of shares offered; (ii) the amount of liquidation preference per share;
(iii) the initial public offering price at which such Preferred Stock will be
issued;
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(iv) the dividend rate (or method of calculation), the dates on which dividends
shall be payable and the dates from which dividends shall commence to cumulate,
if any; (v) any redemption or sinking fund provisions; (vi) any conversion or
exchange rights; (vii) whether depositary shares representing shares of such
Preferred Stock will be offered and, if so, the fraction of a share of such
Preferred Stock represented by each depositary share; and (viii) any additional
voting, dividend, liquidation, redemption, sinking fund and other rights,
preferences, privileges, limitations and restrictions.
The Preferred Stock will, when issued, be fully paid and
nonassessable and will have no preemptive rights. The rights of the holders of
each series of the Preferred Stock will be subordinate to those of the
Company's general creditors.
DIVIDEND RIGHTS
Holders of the Preferred Stock of each series will be entitled
to receive, when, as and if declared by the Board of Directors of the Company,
out of funds of the Company legally available therefor, cash dividends on such
dates and at such rates as are set forth in, or as are determined by the method
described in, the Prospectus Supplement relating to such series of the
Preferred Stock. Such rate may be fixed or variable or both. Each such
dividend will be payable to the holders of record as they appear on the stock
books of the Company on such record dates, fixed by the Board of Directors of
the Company, as specified in the Prospectus Supplement relating to such series
of Preferred Stock.
Such dividends may be cumulative or noncumulative, as provided
in the Prospectus Supplement relating to such series of Preferred Stock. If
the Board of Directors of the Company fails to declare a dividend payable on a
dividend payment date on any series of Preferred Stock for which dividends are
noncumulative, then the right to receive a dividend in respect of the dividend
period ending on such dividend payment date will be lost, and the Company will
have no obligation to pay any dividend for such period, whether or not
dividends on such series are declared payable on any future dividend payment
dates. Dividends on the shares of each series of Preferred Stock for which
dividends are cumulative will accrue from the date on which the Company
initially issues shares of such series.
Unless otherwise specified in the applicable Prospectus
Supplement, so long as the shares of any series of the Preferred Stock are
outstanding, unless (i) full dividends (including if such Preferred Stock is
cumulative, dividends for prior dividend periods) have been paid or declared
and set apart for payment on all outstanding shares of the Preferred Stock of
such series and all other classes and series of preferred stock of the Company
(other than Junior Stock, as defined below) and (ii) the Company is not in
default or in arrears with respect to the mandatory or optional redemption or
mandatory repurchase or other mandatory retirement of, or with respect to any
sinking or other analogous funds for, any shares of Preferred Stock of such
series or any shares of any other preferred stock of the Company of any class
or series (other than Junior Stock), the Company may not declare any dividends
on any shares of Common Stock of the Company or any other stock of the Company
ranking as to dividends or distributions of assets junior to such series of
Preferred Stock (the Common Stock and any such other stock being herein
referred to as "Junior Stock"), or make any payment on account of, or set apart
money for, the purchase, redemption or other retirement of, or for a sinking or
other analogous fund for, any shares of Junior Stock or make any distribution
in respect thereof, whether in cash or property or in obligations of stock of
the Company, other than in Junior Stock which is neither convertible into, nor
exchangeable or exercisable for, any securities of the Company other than
Junior Stock.
LIQUIDATION PREFERENCES
Unless otherwise specified in the applicable Prospectus
Supplement, in the event of any liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary, the holders of each series of the
Preferred Stock will be entitled to receive out of the assets of the Company
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<PAGE> 16
available for distribution to stockholders, before any distribution of assets
is made to the holders of Common Stock or any other shares of stock of the
Company ranking junior as to such distribution to such series of the Preferred
Stock, the amount set forth in the Prospectus Supplement relating to such
series of the Preferred Stock. If, upon any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the amounts payable with
respect to the Preferred Stock of any series and any other shares of preferred
stock of the Company (including any other series of the Preferred Stock)
ranking as to any such distribution on a parity with such series of the
Preferred Stock are not paid in full, the holders of the Preferred Stock of
such series and of such other shares of preferred stock of the Company will
share ratably in any such distribution of assets of the Company in proportion
to the full respective preferential amounts to which they are entitled. After
payment to the holders of the Preferred Stock of each series of the full
preferential amounts of the liquidating distribution to which they are
entitled, unless otherwise provided in the applicable Prospectus Supplement,
the holders of each such series of the Preferred Stock will be entitled to no
further participation in any distribution of assets by the Company.
REDEMPTION
A series of the Preferred Stock may be redeemable, in whole or
from time to time in part, at the option of the Company, and may be subject to
mandatory redemption pursuant to a sinking fund or otherwise, in each case upon
terms, at the times and at the redemption prices set forth in the Prospectus
Supplement relating to such series. Shares of the Preferred Stock redeemed by
the Company will be restored to the status of authorized but unissued shares of
preferred stock of the Company.
In the event that fewer than all of the outstanding shares of
a series of the Preferred Stock are to be redeemed, whether by mandatory or
optional redemption, the number of shares to be redeemed will be determined by
lot or pro rata (subject to rounding to avoid fractional shares) as may be
determined by the Company or by any other method as may be determined by the
Company in its sole discretion to be equitable. From and after the redemption
date (unless default is made by the Company in providing for the payment of the
redemption price plus cumulated and unpaid dividends, if any) dividends will
cease to accumulate on the shares of the Preferred Stock called for redemption
and all rights of the holders thereof (except the right to receive the
redemption price plus accumulated and unpaid dividends, if any) will cease.
Unless otherwise specified in the applicable Prospectus
Supplement, so long as any dividends on shares of any series of the Preferred
Stock or any other series of preferred stock of the Company ranking on a parity
as to dividends and distribution of assets with such series of the Preferred
Stock are in arrears, no shares of any such series of the Preferred Stock or
such other series of preferred stock of the Company will be redeemed (whether
by mandatory or optional redemption) unless all such shares are simultaneously
redeemed, and the Company will not purchase or otherwise acquire any such
shares; provided, however, that the foregoing will not prevent the purchase or
acquisition of share shares pursuant to a purchase or exchange offer made on
the same terms to holders of all such shares outstanding.
CONVERSION AND EXCHANGE RIGHTS
The terms, if any, on which shares of Preferred Stock of any
series may be exchanged for or converted into shares of Common Stock or another
series of Preferred Stock will be set forth in the Prospectus Supplement
relating thereto. Such terms may include provisions for conversion, either
mandatory, at the option of the holder, or at the option of the Company, in
which case the number of shares of Common Stock or the number of shares of
another series of Preferred Stock to be received by the holders of Preferred
Stock would be calculated as of a time and in the manner stated in the
Prospectus Supplement.
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VOTING RIGHTS
Except as indicated in a Prospectus Supplement relating to a
particular series of the Preferred Stock, or except as required by applicable
law, the holders of the Preferred Stock will not be entitled to vote for any
purpose.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus
Supplement of certain provisions of the Deposit Agreement (as defined below)
and of the Depositary Shares (as defined below) and Depositary Receipts (as
defined below) does not purport to be complete and is subject to and qualified
in its entirety by reference to the forms of Deposit Agreement and Depositary
Receipts relating to each series of Preferred Stock which will be filed with
the Commission in connection with the offering of any such series of Preferred
Stock.
GENERAL
The Company may, at its option, elect to offer fractional
interest in shares of Preferred Stock, rather than shares of Preferred Stock.
In the event such option is exercised, the Company will provide for the
issuance by a Depositary to the public of receipts for depositary shares
("Depositary Shares"), each of which will represent fractional interests of a
particular series of Preferred Stock (which will be set forth in the Prospectus
Supplement relating to a particular series of Preferred Stock).
The shares of any series of Preferred Stock underlying the
Depositary Shares will be deposited under a separate Deposit Agreement (the
"Deposit Agreement") between the Company and a bank or trust company selected
by the Company having its principal office in the United States and having a
combined capital and surplus of at least $50,000,000 (the "Depositary"). The
Prospectus Supplement relating to a series of Depositary Shares will set forth
the name and address of the Depositary. Subject to the terms of the Deposit
Agreement, each owner of Depositary Shares will be entitled, in proportion to
the applicable fractional interests in shares of Preferred Stock underlying
such Depositary Shares, to all the rights and preferences of the Preferred
Stock underlying such Depositary Shares (including dividend, voting,
redemption, conversion and liquidation rights).
The Depositary Shares will be evidenced by depositary receipts
issued pursuant to the Deposit Agreement (the "Depositary Receipts").
Depositary Receipts will be distributed to those persons purchasing the
fractional interests in shares of the related series of Preferred Stock in
accordance with the terms of the offering for Preferred Stock described in the
related Prospectus Supplement.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other
cash distributions received in respect of Preferred Stock to the record holders
of Depositary Shares relating to such Preferred Stock in proportion, as nearly
as practicable, to the numbers of such Depositary Shares owned by such holders
on the relevant record date, subject to any applicable tax withholding. The
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any holder of Depositary Shares a fraction of one cent,
and any balance not so distributed shall be added to and treated as part of the
next sum received by the Depositary for distribution to record holders of
Depositary Shares.
In the event of a distribution other than in cash, the
Depositary will distribute property received by it to the record holders of
Depositary Shares entitled thereto, unless the Depositary determines that it is
not feasible to make such distribution, in which case the Depositary may, with
the approval of the Company, adopt such method as it deems equitable and
practicable for the purpose of
16
<PAGE> 18
effecting such distribution, including the sale of such property and
distribution of the net proceeds from such sale to such holders, subject to any
applicable tax withholding.
Any subscription or similar rights offered by the Company to
holders of Preferred Stock will be made available to the holders of Depositary
Shares in such manner as the Depositary may determine, with the approval of the
Company.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Stock underlying the Depositary
Shares is subject to redemption, the Depositary Shares will be redeemed from
the proceeds received by the Depositary resulting from the redemption, in whole
or in part, of such series of the Preferred Stock held by the Depositary. The
Depositary shall mail notice of redemption not less than 30 and not more than
60 days prior to the date fixed for redemption to the record holders of the
Depositary Shares to be so redeemed at their respective addresses appearing in
the Depositary's books. The redemption price per Depositary Share will be
equal to the applicable fraction of the redemption price per share payable with
respect to such series of the Preferred Stock. Whenever the Company redeems
shares of Preferred Stock held by the Depositary, the Depositary will redeem as
of the same redemption date the number of Depositary Shares relating to shares
of Preferred Stock so redeemed. If less than all of the Depositary Shares are
to be redeemed, the Depositary Shares to be redeemed will be selected by lot or
pro rata as may be determined by the Depositary.
After the date fixed for redemption, the Depositary Shares so
called for redemption will no longer be deemed to be outstanding and all rights
of the holders of the Depositary Shares will cease, except the right to receive
the moneys, securities or other property payable upon such redemption and any
money, securities or other property to which the holders of such Depositary
Shares were entitled, including any accrued and unpaid dividends payable in
connection with such redemption, upon such redemption upon surrender to the
Depositary of the Depositary Receipts evidencing such Depositary Shares.
VOTING OF PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of
the applicable Preferred Stock are entitled to vote, the Depositary will mail
the information contained in such notice of meeting to the record holders of
the Depositary Shares relating to such Preferred Stock. Each record holder of
such Depositary Shares on the record date (which will be the same date as the
record date for the Preferred Stock) will be entitled, subject to any
applicable restrictions, to instruct the Depositary as to the exercise of the
voting rights pertaining to the number of shares of Preferred Stock underlying
such holder's Depositary Shares. The Depositary will endeavor, insofar as
practicable, to vote the number of shares of Preferred Stock underlying such
Depositary Shares in accordance with such instructions, and the Company will
agree to take all action which may be deemed necessary by the Depositary in
order to enable the Depositary to do so.
AMENDMENT AND TERMINATION OF DEPOSITARY AGREEMENT
The form of Depositary Receipt evidencing the Depositary
Shares and any provision of the Deposit Agreement may at any time be amended by
agreement between the Company and the Depositary. However, any amendment which
materially and adversely alters the rights of the existing holders of
Depositary Shares will not be effective unless such amendment has been approved
by the record holders of at least a majority of the Depositary Shares than
outstanding. A Deposit Agreement may be terminated by the Company or the
Depositary only if (i) all outstanding Depositary Shares relating thereto have
been redeemed or (ii) there has been a final distribution in respect of the
Preferred Stock of the relevant series in connection with any liquidation,
dissolution or winding up of the Company and such distribution has been
distributed to the holders of the related Depositary Shares.
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<PAGE> 19
CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and
governmental charges arising solely from the existence of the depositary
arrangements. The Company will pay charges of the Depositary in connection
with the initial deposit of any Preferred Stock and any redemption of such
Preferred Stock. Holders of Depositary Shares will pay transfer and other
taxes and governmental charges and such other charges as are expressly provided
in the Deposit Agreement to be for their accounts.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the
Company notice of its election to do so, and the Company may at any time remove
the Depositary, any such resignation or removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment.
Such successor Depositary must be appointed within 60 days after delivery of
the notice of resignation or removal and must be a bank or trust company having
its principal office in the United States and having a combined capital and
surplus of at least $50,000,000.
MISCELLANEOUS
The Depositary will forward to the holders of Depositary
Shares all reports and communications from the Company which are delivered to
the Depositary and which the Company is required to furnish to the holders of
the applicable Preferred Stock.
Neither the Depositary nor the Company will be liable if it is
prevented or delayed by law or any circumstance beyond its control in
performing its obligations under the Deposit Agreement. The obligations of the
Company and the Depositary under the Deposit Agreement will be limited to
performance in good faith of their duties thereunder and they will not be
obligated to prosecute or defend any legal proceeding in respect of any
Depositary Shares or Preferred Stock unless satisfactory indemnity is
furnished. They may rely upon written advice of counsel or accountants, or
information provided by persons presenting Preferred Stock for deposit, holders
of Depositary Shares or other persons believed to be competent and on documents
believed to be genuine.
DESCRIPTION OF COMMON STOCK
The Company has authority to issue up to 50,000,000 shares of
Common Stock, par value $.01 per share. As of August 22, 1995, there were
18,182,600 shares of Common Stock issued and outstanding. The holders of
Common Stock are entitled to one vote per share on all matters to be voted on
by shareholders, including the election of directors. Shareholders are not
entitled to cumulative voting rights, and, accordingly, the holders of a
majority of the shares voting for the election of directors can elect the
entire Board if they choose to do so and, in that event, the holders of the
remaining shares will not be able to elect any person to the Board of
Directors.
The holders of Common Stock are entitled to receive such
dividends, if any, as may be declared from time to time by the Board of
Directors, in its discretion, from funds legally available thereof and subject
to prior dividend rights of holders of any shares of preferred stock of the
Company which may be outstanding. Upon liquidation or dissolution of the
Company subject to prior liquidation rights of the holders of preferred stock
of the Company, the holders of Common Stock are entitled to receive on a pro
rata basis the remaining assets of the Company available for distribution.
Holders of Common Stock have no preemptive or other subscription rights, and
there are no conversion rights or redemption or sinking fund provisions with
respect to such shares. KeyCorp Shareholder Services, Inc. acts as transfer
agent and registrar for the Common Stock.
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<PAGE> 20
DESCRIPTION OF WARRANTS
The Company may issue Warrants to purchase Debt
Securities ("Debt Warrants"), as well as Warrants to purchase Preferred Stock
or Common Stock ("Equity Warrants") (together, the "Warrants"). Warrants may
be issued independently or together with any Securities and may be attached to
or separate from such Securities. The Warrants are to be issued under warrant
agreements (each a "Warrant Agreement") to be entered into between the Company
and a bank or trust company, as warrant agent (the "Warrant Agent"), all as
shall be set forth in the Prospectus Supplement relating to Warrants being
offered pursuant thereto. As of August 22, 1995, the Company has no Warrants
outstanding.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the terms
of Debt Warrants offered thereby, the Warrant Agreement relating to such Debt
Warrants and the debt warrant certificates representing such Debt Warrants
("Debt Warrant Certificates"), including the following: (1) the title of such
Debt Warrants; (2) the aggregate number of such Debt Warrants; (3) the price or
prices at which such Debt Warrants will be issued; (4) the designation,
aggregate principal amount and terms of the Debt Securities purchasable upon
exercise of such Debt Warrants, and the procedures and conditions relating to
the exercise of such Debt Warrants; (5) the designation and terms of any
related Debt Securities with which such Debt Warrants are issued, and the
number of such Debt Warrants issued with each such Debt Security; (6) the date,
if any, on and after which such Debt Warrants and the related Debt Securities
will be separately transferable; (7) the principal amount of Debt Securities
purchasable upon exercise of each Debt Warrant; (8) the date on which the right
to exercise such Debt Warrants will commence, and the date on which such right
will expire; (9) the maximum or minimum number of such Debt Warrants which may
be exercised at any time; (10) a discussion of any material federal income tax
considerations; and (11) any other terms of such Debt Warrants and terms,
procedures and limitations relating to the exercise of such Debt Warrants.
Debt Warrant Certificates will be exchangeable for new Debt
Warrant Certificates of different denominations, and Debt Warrants may be
exercised at the corporate trust office of the Warrant Agent or any other
office indicated in the Prospectus Supplement. Prior to the exercise of their
Debt Warrants, holders of Debt Warrants will not have any of the rights of
holders of the Debt Securities purchasable upon such exercise and will not be
entitled to payment of principal of or any premium or interest on the Debt
Securities purchasable upon such exercise.
EQUITY WARRANTS
The applicable Prospectus Supplement will describe the
following terms of Equity Warrants offered thereby: (1) the title of such
Equity Warrants; (2) the Securities (i.e. Preferred Stock or Common Stock) for
which such Equity Warrants are exercisable; (3) the price or prices at which
such Equity Warrants will be issued; (4) if applicable, the designation and
terms of the Preferred Stock or Common Stock with which such Equity Warrants
are issued, and the number of such Equity Warrants issued with each such share
of Preferred Stock or Common Stock; (5) if applicable, the date on and after
which such Equity Warrants and the related Preferred Stock or Common Stock will
be separately transferable; (6) if applicable, a discussion of any material
federal income tax considerations; and (7) any other terms of such Equity
Warrants, including terms, procedures and limitations relating to the exchange
and exercise of such Equity Warrants.
Holders of Equity Warrants will not be entitled, by virtue of
being such holders, to vote, to consent, to receive dividends, to receive
notice as stockholders with respect to any meeting of stockholders for the
election of directors of the Company or any other matter, or to exercise any
rights whatsoever as stockholders of the Company.
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<PAGE> 21
The exercise price payable and the number of shares of Common
Stock of Preferred Stock purchasable upon the exercise of each Equity Warrant
will be subject to adjustment in certain events, including the issuance of a
stock dividend to holders of Common Stock or Preferred Stock or a stock split,
reverse stock split, combination, subdivision or reclassification of Common
Stock or Preferred Stock. In lieu of adjusting the number of shares of Common
Stock or Preferred Stock purchasable upon exercise of each Equity Warrant, the
Company may elect to adjust the number of Equity Warrants. No adjustments in
the number of shares purchasable upon exercise of the Equity Warrants will be
required until cumulative adjustments require an adjustment of at least 1%
thereof. The Company may, at its option, reduce the exercise price at any
time. No fractional shares will be issued upon exercise of Equity Warrants,
but the Company will pay the cash value of any fractional shares otherwise
issuable. Notwithstanding the foregoing, in case of any consolidation, merger,
or sale or conveyance of the property of the Company as an entirety or
substantially as an entirety, the holder of each outstanding Equity Warrant
shall have the right to the kind and amount of shares of stock and other
securities and property (including cash) receivable by a holder of the number
of shares of Common Stock of Preferred Stock into which such Equity Warrant was
exercisable immediately prior thereto.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder to purchase for cash such
principal amount of Securities at such exercise price as shall in each case be
set forth in, or be determinable as set forth in, the Prospectus Supplement
relating to the Warrants offered thereby. Warrants may be exercised at any
time up to the close of business on the expiration date set forth in the
Prospectus Supplement relating to the Warrants offered thereby. After the
close of business on the expiration date, unexercised Warrants will become
void.
Warrants may be exercised as set forth in the Prospectus
Supplement relating to the Warrants offered thereby. Upon receipt of payment
and the warrant certificate properly completed and duly executed at the
corporate trust office of the Warrant Agent or any other office indicated in
the Prospectus Supplement, the Company will, as soon as practicable, forward
the Securities purchasable upon such exercise. If less than all of the
Warrants represented by such warrant certificate are exercised, a new warrant
certificate will be issued for the remaining Warrants.
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<PAGE> 22
PLAN OF DISTRIBUTION
The Company may sell the Securities to one or more
underwriters, which may include Salomon Brothers Inc., for public offering and
sale by them or may sell the Securities to investors directly or through
agents. Any such underwriter or agent involved in the offer and sale of
Securities will be named in the applicable Prospectus Supplement. The Company
has reserved the right to sell Securities directly to investors on its own
behalf in those jurisdictions where and in such manner as it is authorized to
do so.
Underwriters may offer and sell Securities at a fixed price or
prices, which may be changed, at market prices prevailing at the time of sale,
at prices related to such prevailing market prices, or at negotiated prices.
The Company also may, from time to time, authorize dealers, acting as the
Company's agents, to offer and sell Securities upon the terms and conditions as
are set forth in the applicable Prospectus Supplement. In connection with the
sale of Securities, underwriters may receive compensation from the Company in
the form of underwriting discounts or commissions and may also receive
commissions from purchasers of the Securities for whom they may act as agent.
Underwriters may sell Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from the purchasers for whom they may act
as agent.
Any underwriting compensation paid by the Company to
underwriters or agents in connection with the offering of Securities, and any
discounts, concessions or commissions allowed by underwriters to participating
dealers, will be set forth in the applicable Prospectus Supplement. Dealers
and agents participating in the distribution of Securities may be deemed to be
underwriters, and any discounts and commissions received by them and any profit
realized by them on resale of the Securities may be deemed to be underwriting
discounts and commissions. Underwriters, dealers and agents may be entitled,
under agreements entered into with the Company, to indemnification against and
contribution toward certain civil liabilities, including liabilities under the
Securities Act of 1933.
If so indicated in the Prospectus Supplement, the Company will
authorize dealers acting as the Company's agents to solicit offers by certain
institutions to purchase the Securities from the Company at the public offering
price set forth in the applicable Prospectus Supplement pursuant to delayed
delivery contracts ("Contracts") providing for payment and delivery on the date
or dates stated in such Prospectus Supplement. Each Contract will be for an
amount not less than the amounts stated in the applicable Prospectus
Supplement. Institutions with whom Contracts, when authorized, may be made
include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions, and other
institutions but will in all cases be subject to the approval of the Company.
Contracts will not be subject to any conditions except (i) the purchase by the
institution of the Securities covered by its Contract shall not at the time of
delivery be prohibited under the laws of any jurisdiction in the United States
to which such institution is subject, and (ii) if the Securities are being sold
to underwriters, the Company shall have sold to such underwriters the total
amount specified in the applicable Prospectus Supplement. A commission
indicated in the applicable Prospectus Supplement will be paid to underwriters
and agents soliciting purchases of Securities pursuant to Contracts accepted by
the Company.
The rules of the Commission generally prohibit underwriters
and other members of the selling group from making a market in the Company's
Common Stock during the "cooling off" period immediately preceding the
commencement of sales in the offering. The Commission has, however, adopted an
exemption from these rules that permits passive market making under certain
conditions. These rules permit an underwriter or other member of the selling
group to continue to make a market in the Company's Common Stock subject to the
conditions, among others, that its bid not exceed the highest bid by a market
maker not connected with the offering and that its net purchases on any one
trading day not exceed prescribed limits. Pursuant to these exemptions, certain
underwriters and other
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<PAGE> 23
members of the selling group may engage in passive market making in the
Company's Common Stock during the cooling off period.
LEGAL MATTERS
Certain legal matters with respect to the Securities offered
hereby will be passed upon for the Company by Latham & Watkins, San Francisco,
California. Certain legal matters will be passed upon for any agents or
underwriters by counsel for such agents or underwriters identified in the
applicable Prospectus Supplement.
EXPERTS
The financial statements of FirstMiss Gold Inc. as of June 30,
1995 and 1994, and for each of the years in the three-year period ended June
30, 1995 have been incorporated by reference herein and in the registration
statement in reliance upon the report of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
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<TABLE>
=============================================================== ===========================================================
<S> <C>
NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS
BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE
ANY REPRESENTATION IN CONNECTION WITH THIS OFFERING
OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND, [LOGO]
IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION
MUST NOT BE RELIED UPON AS HAVING BEEN SO AUTHORIZED
BY THE COMPANY OR ANY UNDERWRITER. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY BY ANYONE IN ANY FIRSTMISS GOLD INC.
JURISDICTION IN WHICH SUCH OFFER TO SELL IS NOT
AUTHORIZED, OR IN WHICH THE PERSON IS NOT QUALIFIED
TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO $200,000,000
MAKE SUCH OFFER OR SOLICITATION. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY DEBT SECURITIES
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE PREFERRED STOCK
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT COMMON STOCK
THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY EQUITY WARRANTS
TIME SUBSEQUENT TO ITS DATE. DEBT WARRANTS
-----------------------
------------------
PROSPECTUS
TABLE OF CONTENTS
------------------
PAGE
----
Available Information . . . . . . . . . . . . . 2
Information Incorporated by Reference . . . . . 2 _______________, 1995
The Company . . . . . . . . . . . . . . . . . . 3
Risk Factors . . . . . . . . . . . . . . . . 3
Use of Proceeds . . . . . . . . . . . . . . . . 3
Ratios of Earnings to Fixed Charges and
Earnings to Combined Fixed Charges and
Preferred Stock Dividends . . . . . . . . . . 4
General Description of Securities . . . . . . 5
Description of Debt Securities . . . . . . . . 5
Description of Preferred Stock . . . . . . . . 13
Description of Common Stock . . . . . . . . . . 18
Description of Warrants . . . . . . . . . . . . 19
Plan of Distribution . . . . . . . . . . . . . 21
Legal Matters . . . . . . . . . . . . . . . . . 22
Experts . . . . . . . . . . . . . . . . . . . . 22
=============================================================== ===========================================================
</TABLE>
<PAGE> 25
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses to be paid by the Company in connection with the distribution
of the securities being registered are as set forth in the following table:
<TABLE>
<S> <C>
Securities and Exchange Commission Feet . . . . . . . . . $68,966
Nasdaq National Market Filing Fee . . . . . . . . . . . . *
Printing and Engraving Expenses . . . . . . . . . . . . . *
Accounting Fees and Expenses . . . . . . . . . . . . . . . *
Trustee Fees and Expenses . . . . . . . . . . . . . . . . *
Legal Fees and Expenses . . . . . . . . . . . . . . . . . . *
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . *
-------
Total . . . . . . . . . . . . . . . . . . . . . . . $ *
=======
</TABLE>
_______________
*To be filed by amendment.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company has the power, pursuant to Section 78.037 of the Nevada
Corporations Law, to limit the liability of its directors from certain breaches
of fiduciary duty and to indemnify its directors, officers and other persons
for certain acts.
Articles XI and XII of the Company's Articles of Incorporation provide as
follows:
ARTICLE XI
INDEMNIFICATION
(1) Action Not By or on Behalf of Corporation. The Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of
another Corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), fees, judgments, fines, and
amounts paid in settlement, actually and reasonably incurred by him in
connection with the action, suit or proceeding if he acted in, good faith and
in a manner reasonably believed to be in or not opposed to the best interests
of the Corporation, and with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, does not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(2) Action By or on Behalf of Corporation. The Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of
the Corporation to procedure a judgment in its favor by reason of the
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<PAGE> 26
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another Corporation, partnership, joint
venture, trust, or other enterprise against expenses, including amounts paid in
settlement and attorneys' fees actually and reasonably incurred by him in
connection with the defense or settlement of the action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, except that indemnification may not be
made for any claim, issue or matter as to which such a person shall have been
adjudged by a court of competent jurisdiction, after exhaustion of all appeals
therefrom, to be liable to the Corporation or for amounts paid in settlement to
the Corporation unless and only to the extent that the court in which the
action or suit was brought or other court of competent jurisdiction determines
upon application that, in view of all of the circumstances of the case, the
person is fairly and reasonably entitled to indemnity for such expenses as the
court deems proper.
(3) Successful Defense. To the extent that a director, officer,
employee or agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Section 1
or 2 of this Article XI, or in defense or any claim, issue or matter therein,
he must be indemnified by the Corporation against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection with the
defense.
(4) Determination of Right to Indemnification in Certain Circumstances.
Any indemnification under Section 1 or 2 of this Article XI, unless ordered by
a court or advanced pursuant to this Article XI, must be made by the
Corporation only as authorized in the specified case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances. The determination must be made by the Stockholders, the Board
of Directors by a majority vote of a quorum consisting of directors who were
not parties to the act, suit or proceeding, or if a majority vote of a quorum
of directors who were not parties to the act, suit or proceeding so orders, by
independent legal counsel in a written opinion, or if a quorum consisting of
directors who were not parties to the act, suit or proceeding cannot be
obtained, by independent legal counsel in a written opinion.
(5) Advance Payment of Expenses. Expenses of officers and directors
incurred in defending a civil or criminal action, suit or proceeding must be
paid by the Corporation as they are incurred and in advance of the final
disposition of the action, suit or proceeding upon receipt of an undertaking by
or on behalf of the director or officer to repay the amount if it is ultimately
determined by a court of competent jurisdiction that he is not entitled to be
indemnified by the Corporation as authorized in this Article. The provisions
of this subsection (5) of this Article XI shall not affect any rights to
advancement of expenses to which corporate personnel other than directors or
officers may be entitled under any contract or otherwise by law.
(6) Not Exclusive.
(a) The indemnification and advancement of expenses authorized in
or ordered by a court pursuant to any other section of this Article XI or any
provision of law:
(i) does not exclude an other rights to which a person
seeking indemnification or advancement of expenses may be entitled under the
Articles of Incorporation or any stature, by-law, agreement, vote of
stockholders or disinterested directors or otherwise, for either an action in
his official capacity or an action in another capacity while holding his
office, except that indemnification, unless ordered by a court pursuant to
subsection 2 of this Article XI or for the advancement of expenses made
pursuant to this Article XI may not be made to or on behalf of any director or
officer if a final adjudication establishes that his acts or omissions involved
intentional misconduct, fraud or a knowing violation of the law and was
material to the cause of action.
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<PAGE> 27
(ii) continues for a person who has ceased to be a director,
officer, employee or agent and inures to the benefit of the heirs, executors
and administrators of such a person.
(b) Without limiting the foregoing, the Corporation is authorized
to enter into an agreement with any director, officer, employee or agent of the
Corporation providing indemnification for such person against expenses,
including attorneys' fees, judgments, fines and amounts paid in settlement that
result from any threatened, pending or completed action, suit, or proceeding,
whether civil, criminal, administrative or investigative, including any action
by or in the right of the Corporation, that arises by reason of the fact that
such person is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, to the full extent allowed by law, except
that no such agreement shall provide for indemnification for any actions that
constitute fraud, actual dishonesty or willful misconduct.
(7) Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise for any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of this Article XI.
(8) Certain Definitions. For the purposes of this Article XI, (a) any
director, officer, employee or agent of the Corporation who shall serve as a
director, officer, employee or agent of any other corporation, joint venture
trust or other enterprise of which the Corporation, directly or indirectly, is
or was a stockholder or creditor, or in which the Corporation is or was in any
way interested, or (b) any director, officer, employee or agent of any
subsidiary corporation, joint venture, trust or other enterprise wholly owned
by the Corporation, shall be deemed to be serving as such director, officer,
employee or agent at the request of the Corporation, unless the Board of
Directors of the Corporation shall determine otherwise. In all other instances
where any person shall serve as a director, officer, employee or agent of
another corporation, joint venture, trust or other enterprise of which the
Corporation is or was a stockholder or creditor, or in which it is or was
otherwise interested, if it is not otherwise established that such person is or
was serving as such director, officer, employee or agent at the request of the
Corporation, the Board of Directors of the Corporation may determine whether
such service is or was at the request of the Corporation, and it shall not be
necessary to show any actual or prior request for such service. For purposes
of this Article XI, references to a corporation include all constituent
corporations absorbed in a consolidation or merger as well as the resulting or
surviving corporation so that any person who is or was a director, officer,
employee or agent of such a constituent corporation or is or was serving at the
request of such constituent corporation as a director, officer, employee or
agent of another corporation, joint venture, trust or other enterprise shall
stand in the same position under the provisions of this Article XI with respect
to the resulting or surviving corporation as he would if he had served the
resulting or surviving corporation in the same capacity. For purposes of this
Article XI, references to "other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise taxes assessed on a
person with respect to an employee benefit plan; and references to "serving at
the request of the Corporation" shall include any service as a director,
officer, employee or agent of the Corporation which imposes duties on, or
involves services by, such director, officer, employee, or agent with respect
to an employee benefit plan, its participants, or beneficiaries; and a person
who acted in good faith and in a manner he reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interests of
the Corporation" as referred to in this Article XI.
II-3
<PAGE> 28
ARTICLE XII
LIMITATION ON PERSONAL LIABILITY FOR
DIRECTORS AND OFFICERS
A director or officer of the Corporation shall be personally liable to the
Corporation or its stockholders for (i) acts or omissions which involve
intentional misconduct, fraud or a knowing violation of law, or (ii) the
payment of dividends in violation of Section 78.300 of the Nevada Revised
Statutes. Except as set forth in the preceding sentence, 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. 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 of officer of the
Corporation for acts or omissions prior to such repeal or modification.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(A) EXHIBITS:
4(a) Article IV, Article XIII and Article XIV of the Company's Articles
of Incorporation, which are included in Exhibit 3(a) filed with
the Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1991, are incorporated herein by reference.
4(b) Article II and Article V, Section 6 of the Company's Bylaws, which
are included in Exhibit 3(b) filed with the Company's Annual
Report on Form 10-K for fiscal year ended June 30, 1990, are
incorporated herein by reference.
4(c) Company Resolutions authorizing the 1988-A Series Convertible
Preferred Stock, effective July 13, 1988, which were filed as
Exhibit 4(c) to the Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1988, are incorporated by reference.
4(d) Company Resolutions authorizing the 1989-A Series Convertible
Preferred Stock, effective August 9, 1989, which were filed as
Exhibit 4(f) to the Company's Annual Report on Form 10-K for the
year ended June 30, 1989, are incorporated herein by reference.
4(e) Company Resolutions authorizing the 1989-B Series Convertible
Preferred Stock, effective November 2, 1989, which were filed as
Exhibit 4.1 to the Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1989, are incorporated herein by
reference.
4(f) Company Resolutions authorizing the 1990-A Series Convertible
Preferred Stock, effective August 8, 1990, which were filed as
Exhibit 4(f) to the Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1990, are incorporated herein by
reference.
4(g) Company Resolutions authorizing the Company's 1990-B and 1990-C
Series Convertible Preferred Stock, effective November 1, 1990 and
November 2, 1990, respectively, which were filed as Exhibit 4.1 to
the Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1990, are incorporated herein by reference.
II-4
<PAGE> 29
4(h) Company Resolutions authorizing the 1991-A Series Convertible
Preferred Stock, effective August 14, 1991, which were filed as
Exhibit 4(h) to the Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1991, are incorporated herein by
reference.
4(i) Company Resolutions authorizing the 1991-B Series Convertible
Preferred Stock, effective November 7, 1991, which were filed as
Exhibit 4.1 to the Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1991, are incorporated herein by
reference.
4(j) Company Resolutions authorizing the 1992-A Series Convertible
Preferred Stock, effective November 5, 1992, which were filed as
Exhibit 4 to the Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1992, are incorporated herein by
reference.
4(k) Company Resolutions authorizing the 1993-A Series Convertible
Preferred Stock, effective November 4, 1993, which were filed as
Exhibit 4 to the Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1993, are incorporated herein by
reference.
4(l) Credit Agreement, dated as of December 30, 1987, which was filed as
Exhibit 10.17 to Amendment No. 1 to the Company's Registration
Statement on Form S-1 filed with the Securities and Exchange
Commission on November 2, 1987 (the "Form S-1"), is incorporated
by reference.
4(m) First Amendment to Credit Agreement, dated as of January 26, 1988,
which was filed as Exhibit 10.23 to Amendment No. 2 to the
Company's Form S-1, is incorporated by reference.
4(n) Second Amendment to Credit Agreement, dated as of April 14, 1988,
which was filed as Exhibit 10.24 to Amendment No. 4 to the
Company's Form S-1, is incorporated by reference.
4(o) Third Amendment to Credit Agreement, dated as of March 30, 1989,
which was filed as Exhibit 4(h) to the Company's Annual Report on
Form 10-K for the fiscal year ended June 30, 1989, is incorporated
by reference.
4(p) Fourth Amendment to the Credit Agreement, dated as of July 2, 1990,
which was filed as Exhibit 4(m) to the Company's Annual Report on
Form 10-K for the fiscal year ended June 30, 1991, is incorporated
herein by reference.
4(q) Amended and Restated Gold Loan Agreement, dated January 26, 1988,
which was filed as Exhibit 10.15 to Amendment No. 2 to the
Company's Form S-1, is incorporated by reference.
4(r) Rights Agreement dated June 13, 1990, which was filed as Exhibit 1
to the Company's Form 8-K dated June 13, 1990, is incorporated by
reference.
4(s) Loan Agreement between the Company and First Mississippi, dated
March 29, 1990, which was filed as Exhibit 4(p) to the Company's
Annual Report on Form 10-K for the fiscal year ended June 30,
1991, is incorporated herein by reference.
4(t) Amendment to Loan Agreement between The Company and First
Mississippi, dated August 27, 1991, which was filed as Exhibit
4(q) to the Company's Annual Report
II-5
<PAGE> 30
on Form 10-K for the fiscal year ended June 30, 1991, is
incorporated herein by reference.
4(u) Second Amendment to Loan Agreement between the Company and First
Mississippi dated August 25, 1993, which was filed as Exhibit 4(t)
to the Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 1993, is incorporated herein by reference.
*4(v) Form of Indenture.
*4(w) Form of Warrant Agreement for Debt Securities.
*4(x) Form of Warrant Agreement for Common Stock.
5 Opinion of Latham & Watkins.
12 Computation of Ratios of Earnings to Fixed Charges.
23(a) Consent of KPMG Peat Marwick LLP.
23(b) Consent of Latham & Watkins (included in Exhibit 5).
____________________
* To be filed by amendment or incorporated by reference in connection with the
offering of the Securities.
II-6
<PAGE> 31
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) (Section
230.424(b) of this chapter) 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;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that the information required to be included in a
post-effective amendment by paragraphs (a)(1)(i) and (a)(1)(ii) above may be
contained in periodic reports filed by the registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose 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 therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) 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.
(b) The undersigned registrant hereby undertakes 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 section 15(d) of the
Securities Exchange Act of 1934 and (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 the
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.
(e) The undersigned registrant hereby undertakes to deliver or cause to
be delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a- 3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Registration S-X are not set forth in the prospectus, to deliver,
or cause to be delivered to each person to whom the prospectus is sent or
II-7
<PAGE> 32
given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial information.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions or otherwise,
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 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 whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
(i) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from a form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in the
form of prospectus filed by the 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.
(2) For purposes 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 offering of such securities at that time shall be deemed to be
the initial bona fide offering hereof.
(j) The undersigned registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to act under
Subsection (a) of Section 310 of the Trust Indenture Act (the "Act") in
accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
II-8
<PAGE> 33
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE
REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS
ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
AMENDMENT TO REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF ENGLEWOOD, STATE OF
COLORADO ON SEPTEMBER 5, 1995.
FIRSTMISS GOLD INC.
By \s\ G.W. Thompson
----------------------------------
G.W. Thompson, President
Pursuant to the requirements of the Securities Act of 1933, this
amendment to registration statement has been signed by each of the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
\s\ G.W. Thompson President and Chief September 5, 1995
------------------------------- Executive Officer
G.W. Thompson (Principal Executive
Officer) and Director
\s\ Donald S. Robson Vice President and September 5, 1995
------------------------------- Chief Financial Officer
Donald S. Robson (Principal Financial
Officer)
\s\ Roger D. Palmer Controller (Principal September 5, 1995
------------------------------- Accounting Officer)
Roger D. Palmer
\s\ J. Kelley Williams Director and Chairman September 5, 1995
------------------------------- of the Board of Directors
J. Kelley Williams
\s\ Cecil Alvarez Director September 5, 1995
-------------------------------
Cecil Alvarez
\s\ Walter A. Drexel Director September 5, 1995
-------------------------------
Walter A. Drexel
\s\ Robert C. Horton Director September 5, 1995
-------------------------------
Robert C. Horton
\s\ Pete Ingersoll Director September 5, 1995
-------------------------------
Pete Ingersoll
\s\ Charles P. Moreton Director September 5, 1995
-------------------------------
Charles P. Moreton
\s\ Paul W. Murrill Director September 5, 1995
-------------------------------
Paul W. Murrill
\s\ R. M. Summerford Director September 5, 1995
-------------------------------
R. M. Summerford
\s\ Robert L. Zerga Director September 5, 1995
-------------------------------
Robert L. Zerga
</TABLE>
II-9
<PAGE> 34
EXHIBIT INDEX
4(a) Article IV, Article XIII and Article XIV of the Company's Articles
of Incorporation, which are included in Exhibit 3(a) filed with
the Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1991, are incorporated herein by reference.
4(b) Article II and Article V, Section 6 of the Company's Bylaws, which
are included in Exhibit 3(b) filed with the Company's Annual
Report on Form 10-K for fiscal year ended June 30, 1990, are
incorporated herein by reference.
4(c) Company Resolutions authorizing the 1988-A Series Convertible
Preferred Stock, effective July 13, 1988, which were filed as
Exhibit 4(c) to the Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1988, are incorporated by reference.
4(d) Company Resolutions authorizing the 1989-A Series Convertible
Preferred Stock, effective August 9, 1989, which were filed as
Exhibit 4(f) to the Company's Annual Report on Form 10-K for the
year ended June 30, 1989, are incorporated herein by reference.
4(e) Company Resolutions authorizing the 1989-B Series Convertible
Preferred Stock, effective November 2, 1989, which were filed as
Exhibit 4.1 to the Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1989, are incorporated herein by
reference.
4(f) Company Resolutions authorizing the 1990-A Series Convertible
Preferred Stock, effective August 8, 1990, which were filed as
Exhibit 4(f) to the Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1990, are incorporated herein by
reference.
4(g) Company Resolutions authorizing the Company's 1990-B and 1990-C
Series Convertible Preferred Stock, effective November 1, 1990 and
November 2, 1990, respectively, which were filed as Exhibit 4.1 to
the Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1990, are incorporated herein by reference.
4(h) Company Resolutions authorizing the 1991-A Series Convertible
Preferred Stock, effective August 14, 1991, which were filed as
Exhibit 4(h) to the Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1991, are incorporated herein by
reference.
4(i) Company Resolutions authorizing the 1991-B Series Convertible
Preferred Stock, effective November 7, 1991, which were filed as
Exhibit 4.1 to the Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1991, are incorporated herein by
reference.
4(j) Company Resolutions authorizing the 1992-A Series Convertible
Preferred Stock, effective November 5, 1992, which were filed as
Exhibit 4 to the Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1992, are incorporated herein by
reference.
<PAGE> 35
4(k) Company Resolutions authorizing the 1993-A Series Convertible
Preferred Stock, effective November 4, 1993, which were filed as
Exhibit 4 to the Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1993, are incorporated herein by
reference.
4(l) Credit Agreement, dated as of December 30, 1987, which was filed as
Exhibit 10.17 to Amendment No. 1 to the Company's Registration
Statement on Form S-1 filed with the Securities and Exchange
Commission on November 2, 1987 (the "Form S-1"), is incorporated
by reference.
4(m) First Amendment to Credit Agreement, dated as of January 26, 1988,
which was filed as Exhibit 10.23 to Amendment No. 2 to the
Company's Form S-1, is incorporated by reference.
4(n) Second Amendment to Credit Agreement, dated as of April 14, 1988,
which was filed as Exhibit 10.24 to Amendment No. 4 to the
Company's Form S-1, is incorporated by reference.
4(o) Third Amendment to Credit Agreement, dated as of March 30, 1989,
which was filed as Exhibit 4(h) to the Company's Annual Report on
Form 10-K for the fiscal year ended June 30, 1989, is incorporated
by reference.
4(p) Fourth Amendment to the Credit Agreement, dated as of July 2, 1990,
which was filed as Exhibit 4(m) to the Company's Annual Report on
Form 10-K for the fiscal year ended June 30, 1991, is incorporated
herein by reference.
4(q) Amended and Restated Gold Loan Agreement, dated January 26, 1988,
which was filed as Exhibit 10.15 to Amendment No. 2 to the
Company's Form S-1, is incorporated by reference.
4(r) Rights Agreement dated June 13, 1990, which was filed as Exhibit 1
to the Company's Form 8-K dated June 13, 1990, is incorporated by
reference.
4(s) Loan Agreement between the Company and First Mississippi, dated
March 29, 1990, which was filed as Exhibit 4(p) to the Company's
Annual Report on Form 10-K for the fiscal year ended June 30,
1991, is incorporated herein by reference.
4(t) Amendment to Loan Agreement between The Company and First
Mississippi, dated August 27, 1991, which was filed as Exhibit
4(q) to the Company's Annual Report on Form 10-K for the fiscal
year ended June 30, 1991, is incorporated herein by reference.
4(u) Second Amendment to Loan Agreement between the Company and First
Mississippi dated August 25, 1993, which was filed as Exhibit 4(t)
to the Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 1993, is incorporated herein by reference.
*4(v) Form of Indenture.
*4(w) Form of Warrant Agreement for Debt Securities.
*4(x) Form of Warrant Agreement for Common Stock.
5 Opinion of Latham & Watkins.
<PAGE> 36
12 Computation of Ratios of Earnings to Fixed Charges.
23(a) Consent of KPMG Peat Marwick LLP.
23(b) Consent of Latham & Watkins (included in Exhibit 5).
____________________
* To be filed by amendment or incorporated by reference in connection with the
offering of the Securities.
<PAGE> 1
EXHIBIT 5
[LATHAM & WATKINS LETTERHEAD]
September 8, 1995
FirstMiss Gold Inc.
6025 South Quebec Street
Suite 310
Englewood, Colorado 80111
Re: $200,000,000 Aggregate Offering Price of Securities
of FirstMiss Gold Inc.
Ladies and Gentlemen:
We have acted as special counsel to FirstMiss Gold Inc., a
Nevada corporation (the "Company"), in connection with a registration statement
on Form S-3 (the "Registration Statement") being filed by the Company with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended.
The Company has provided us with a draft prospectus (the
"Prospectus") which is a part of the Registration Statement. The Prospectus
provides that it will be supplemented in the future by one or more supplements
to the Prospectus (each a "Prospectus Supplement"). The Prospectus as
supplemented by various Prospectus Supplements will provide for the
registration by the Company of up to $200,000,000 aggregate offering price of
(i) one or more series of senior, senior subordinated or subordinated debt
securities (the "Debt Securities"), (ii) one or more series of preferred stock,
par value $0.01 per share (the "Preferred Stock"), (iii) shares of common
stock, par value $0.01 per share (the "Common Stock"), or (iv) warrants to
purchase Common Stock, Preferred Stock or Debt Securities (the "Warrants").
The Debt Securities, Preferred Stock, Common Stock and Warrants are
collectively referred to herein as the "Securities." Any Debt Securities and
Preferred Stock may be exchangeable and/or convertible into shares of Common
Stock or Preferred Stock. The Debt Securities may be issued pursuant to one or
more indentures (collectively, the "Indentures"), in each case between the
Company and a trustee.
<PAGE> 2
LATHAM & WATKINS
FirstMiss Gold Inc.
September 8, 1995
Page 2
In our capacity as California counsel to the Company in
connection with the Registration Statement, we are generally familiar with the
proceedings taken and proposed to be taken by the Company in connection with
the authorization and issuance of the Securities. For purposes of this
opinion, we have assumed that such proceedings will be timely and properly
completed, in accordance with all requirements of applicable federal and
California securities laws, in the manner presently proposed.
We have made such legal and factual examinations and
inquiries, including an examination of originals and copies certified or
otherwise identified to our satisfaction, of all such documents, corporate
records and instruments of the Company as we have deemed necessary or
appropriate for purposes of this opinion. In our examination, we have assumed
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals, and the conformity to authentic original documents of all
documents submitted to us as copies.
We have been furnished with, and with your consent have
exclusively relied upon, certificates of officers of the Company with respect
to certain factual matters. In addition, we have obtained and relied upon such
certificates and assurances from public officials as we have deemed necessary.
We are opining herein as to the effect on the subject
transaction only of the federal securities laws of the United States and the
internal laws of the State of California, and we express no opinion herein with
respect to the applicability thereto, or the effect thereon, of the laws of any
other jurisdiction or as to any matters of municipal law or the laws of any
local agencies within any state.
Subject to the foregoing and the other qualifications set
forth herein, it is our opinion that, as of the date hereof:
1. When (a) the Registration Statement and any required
post-effective amendment thereto and any and all Prospectus Supplement(s)
required by applicable laws have all become effective under the Securities Act,
and (b) when the Debt Securities have been duly executed and delivered by all
parties thereto, and (c) assuming that the terms of the Indentures as executed
and delivered are as described in the Registration Statement, the Prospectus
and the related Prospectus Supplement(s), and (d) assuming that the Indentures
as executed and delivered do not violate any law applicable to the Company or
result in a default under or breach of any agreement or instrument binding upon
the Company, and (e) assuming that the Indentures as executed and delivered
comply with all requirements and restrictions, if any, applicable to the
Company, whether imposed by any court or governmental or regulatory body having
jurisdiction over the Company, and (f) assuming that the Debt Securities are
then issued and sold as contemplated in the Registration Statement, the
Prospectus and the related Prospectus Supplement(s), the Indentures will
constitute valid and legally binding obligations of the Company, enforceable
against the Company under the laws of the State of California in accordance
with the terms of the Indentures.
<PAGE> 3
LATHAM & WATKINS
FirstMiss Gold Inc.
September 8, 1995
Page 3
2. When (a) the Debt Securities have been duly
established by the applicable Indentures (including, without limitation, the
adoption by the Board of Directors of the Company of a resolution duly
authorizing the issuance and delivery of the Debt Securities), duly
authenticated by the trustee and duly executed and delivered on behalf of the
Company against payment therefor in accordance with the terms and provisions of
the applicable Indenture and as contemplated by the Registration Statement, the
Prospectus and the related Prospectus Supplement(s), and (b) when the
Registration Statement and any required post-effective amendment thereto and
any and all Prospectus Supplement(s) required by applicable laws have all
become effective under the Securities Act, and (c) assuming that the terms of
the Debt Securities as executed and delivered are as described in the
Registration Statement, the Prospectus and the related Prospectus
Supplement(s), and (d) assuming that the Debt Securities as executed and
delivered do not violate any law applicable to the Company or result in a
default under or breach of any agreement or instrument binding upon the
Company, and (e) assuming that the Debt Securities as executed and delivered
comply with all requirements and restrictions, if any, applicable to the
Company, whether imposed by any court or governmental or regulatory body having
jurisdiction over the Company, and (f) assuming that the Debt Securities are
then issued and sold as contemplated in the Registration Statement, the
Prospectus and the related Prospectus Supplement(s), the Debt Securities will
constitute valid and legally binding obligations of the Company, enforceable
against the Company under the laws of the State of California in accordance
with the terms of the Debt Securities.
3. When (a) the Warrants have been duly executed and
delivered, and issued and sold in the form and in the manner contemplated in
the Registration Statement, the Prospectus and the related Prospectus
Supplement(s), and (b) when the Registration Statement and any required
post-effective amendment thereto and any and all Prospectus Supplement(s)
required by applicable law have all become effective under the Securities Act,
and (c) assuming that the terms of the Warrants as executed and delivered are
as described in the Registration Statement, the Prospectus and the related
Prospectus Supplement(s), and (d) assuming that the Warrants, as executed and
delivered, do not violate any law applicable to the Company or result in a
default under or breach of any agreement or instrument binding upon the
Company, and (e) assuming the Warrants as executed and delivered comply with
all requirements and restrictions, if any, applicable to the Company, whether
imposed by any court or governmental or regulatory body having jurisdiction
over the Company, and (f) assuming that the Warrants are then issued and sold
as contemplated in the Registration Statement, the Prospectus and the related
Prospectus Supplement(s), the Warrants will constitute valid and binding
obligations of the Company, enforceable against the Company under the laws of
the State of California in accordance with their terms.
4. The Company has the authority pursuant to its
Articles of Incorporation, as amended, to issue up to 10,000,000 shares of
Preferred Stock. When a series of Preferred Stock has been duly established in
accordance with the terms of the Articles of Incorporation and applicable law,
and upon adoption by the Board of Directors of the Company of a resolution in
form and content as required by applicable law and upon
<PAGE> 4
LATHAM & WATKINS
FirstMiss Gold Inc.
September 8, 1995
Page 4
issuance and delivery of and payment for such shares in the manner contemplated
by the Registration Statement, the Prospectus and the related Prospectus
Supplement(s) and by such resolution, such shares of such series of Preferred
Stock (including any Preferred Stock duly issued (i) upon the exercise of any
Warrants exercisable for Preferred Stock or (ii) upon the exchange or
conversion of Debt Securities that are exchangeable or convertible into
Preferred Stock) will be validly issued under the laws of the State of
California, fully paid and nonassessable.
5. The Company has the authority pursuant to its
Articles of Incorporation to issue up to 50,000,000 shares of Common Stock.
Upon adoption by the Board of Directors of the Company of a resolution in form
and content as required by applicable law and upon issuance and delivery of and
payment for such shares in the manner contemplated by the Registration
Statement, the Prospectus and the related Prospectus Supplement(s) and by such
resolution, such shares of Common Stock (including any Common Stock duly issued
(i) upon the exchange or conversion of any shares of Preferred Stock that are
exchangeable or convertible into Common Stock, (ii) upon the exercise of any
Warrants exercisable for Common Stock or (iii) upon the exchange or conversion
of Debt Securities that are exchangeable or convertible into Common Stock) will
be validly issued under the laws of the State of California, fully paid and
nonassessable.
All of the opinions set forth above are subject to the
following exceptions, limitations and qualifications: (i) the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights and remedies of
creditors; (ii) the effect of general principles of equity, including without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing and the possible unavailability of specific performance or injunctive
relief, regardless of whether enforcement is considered in a proceeding in
equity or at law, and the discretion of the court before which any proceeding
therefor may be brought; and (iii) the unenforceability under certain
circumstances under law or court decisions of provisions providing for the
indemnification of or contribution to a party with respect to a liability where
such indemnification or contribution is contrary to public policy.
To the extent that the obligations of the Company under the
Indentures may be dependent upon such matters, we assume for purposes of this
opinion that the trustee for each Indenture is duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization; that
the trustee is duly qualified to engage in the activities contemplated by the
applicable Indenture; that the applicable Indenture has been duly authorized,
executed and delivered by the trustee and constitutes a legally valid, binding
and enforceable obligation of the trustee, enforceable against the trustee in
accordance with its terms; that the trustee is in compliance, generally and
with respect to acting as trustee under the applicable Indenture, with all
applicable laws and regulations; and that the trustee has the requisite
organizational and legal power and authority to perform its obligations under
the applicable Indenture.
<PAGE> 5
LATHAM & WATKINS
FirstMiss Gold Inc.
September 8, 1995
Page 5
We consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption
"Legal Matters" in the Prospectus included therein.
This opinion is rendered only to you and is solely for your
benefit in connection with the transactions covered hereby. This opinion may
not be relied upon by you for any other purpose, or furnished to, quoted to, or
relied upon by any other person, firm or corporation for any purpose, without
our prior written consent.
Very truly yours,
LATHAM & WATKINS
<PAGE> 1
EXHIBIT 12
FIRSTMISS GOLD INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
FOR THE FIVE YEARS ENDED JUNE 30, 1995
<TABLE>
<CAPTION>
6/30/95 6/30/94 6/30/93 6/30/92 6/30/91
=======================================================
(in thousands)
<S> <C> <C> <C> <C> <C>
Earnings (loss) before income
taxes and cumulative effect of
change in accounting principal
per consolidated statements of
operations (17,929) 5,599 (3,088) 5,928 26
Add Back:
Interest 2,964 1,997 1,748 2,302 3,006
Amortization 0 75 203 406 618
-------------------------------------------------------
Total fixed charges 2,964 2,072 1,951 2,708 3,624
-------------------------------------------------------
Deduct:
Interest Capped (1,159) (221) (43) 0 (100)
-------------------------------------------------------
Earnings before fixed charges and
provision (benefit) for income
taxes (16,124) 7,450 (1,178) 8,636 3,550
=======================================================
Ratio of earnings to fixed charges - (1) 3.60 - (2) 3.19 - (3)
=======================================================
</TABLE>
(1) Earnings are inadequate to cover fixed charges, the coverage deficiency is
$19,088,000
(2) Earnings are inadequate to cover fixed charges, the coverage deficiency is
$3,129,000
(3) Earnings are inadequate to cover fixed charges, the coverage deficiency is
$74,000
<PAGE> 1
EXHIBIT 23(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to incorporation by reference in the Registration Statement on
Form S-3 of FirstMiss Gold Inc. of our report dated July 28, 1995, except
as to the second paragraph of Note 1(a), which is as of August 31, 1995,
relating to the consolidated balance sheets of FirstMiss Gold Inc. and
subsidiary as of June 30, 1995 and 1994, and the related consolidated
statements of operations, stockholders' equity and cash flows for each of the
years in the three- year period ended June 30, 1995, which report appears in
the June 30, 1995 annual report on Form 10-K of FirstMiss Gold Inc., and to the
reference to our firm under the heading "Experts" in the prospectus.
KPMG PEAT MARWICK LLP
Denver, Colorado
September 7, 1995
