As filed with the Securities and Exchange Commission May 22, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
BATTLE MOUNTAIN CANADA LTD.
(Exact name of registrant as specified in its charter)
ONTARIO NOT APPLICABLE
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
ROYAL TRUST TOWER, SUITE 2500 M5K IJ5
77 KING STREET WEST (Zip Code)
TORONTO, ONTARIO
(Address of Principal Executive Offices)
- --------------------------------------------------------------------------------
1997 LONG-TERM INCENTIVE PLAN
OF
BATTLE MOUNTAIN CANADA LTD.
(FULL TITLE OF THE PLAN)
- --------------------------------------------------------------------------------
GREG V. ETTER
GENERAL COUNSEL AND SECRETARY
BATTLE MOUNTAIN GOLD COMPANY
333 CLAY STREET, 42ND FLOOR
HOUSTON, TEXAS 77002-4103
(Name and address of agent for service)
(713) 650-6400
(Telephone number, including area code, of agent for service)
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------
Title of Proposed maximum Proposed maximum
securities to be Amount to be offering price aggregate Amount of
registered registered per share offering price registration fee
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Exchangeable
Shares(1) 2,500,000 $6.08 (2) $15,200,000 (2) $4,484
- --------------------------------------------------------------------------------------------
</TABLE>
(1) Includes the Exchangeable Share purchase rights associated with the
Exchangeable Shares.
(2) Estimated pursuant to Rule 457(c) and (h) solely for purposes of
computing the registration fee and based upon the average of the high and
low prices of the Exchangeable Shares, as reported on the Toronto Stock
Exchange Composite Tape on May 21, 1998, expressed in U.S. dollars based
upon the noon buying rate on May 21, 1998, in New York City for cable
transfers in Canadian dollars, as certified for customs purposes by the
Federal Reserve Bank of New York, rounded to the nearest one-hundredth of
one U.S. dollar.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Note: The document(s) containing the information concerning the 1997
Long-Term Incentive Plan of Battle Mountain Canada Ltd. (the "Incentive Plan")
required by Item 1 of Form S-8 under the Securities Act of 1933, as amended (the
"Securities Act"), and the statement of availability of registrant information
and other information required by Item 2 of Form S-8 will be sent or given to
participants as specified by Rule 428. In accordance with Rule 428 and the
requirements of Part I of Form S-8, such documents are not being filed with the
Securities and Exchange Commission (the "Commission") either as part of this
registration statement on Form S-8 (this "Registration Statement") or as
prospectuses or prospectus supplements pursuant to Rule 424. Battle Mountain
Canada Ltd., an Ontario corporation ("Battle Mountain Canada"), maintains a file
of such documents in accordance with the provisions of Rule 428. Upon request,
Battle Mountain Canada shall furnish to the Commission or its staff a copy or
copies of all of the documents included in such file.
I-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following document, which the Battle Mountain Canada has filed with
the Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (File No. 1-10943), is incorporated in this Registration
Statement by reference and shall be deemed to be a part hereof:
(i) The description of the exchangeable shares of Battle
Mountain Canada (the "Exchangeable Shares") contained in
Battle Mountain Canada's Registration Statement on Form
8-A dated August 23, 1996.
The following documents, which Battle Mountain Gold Company, a Nevada
corporation ("Battle Mountain") has filed with the Commission pursuant to the
Exchange Act (File No. 1-9666), are incorporated in this Registration Statement
by reference and shall be deemed to be a part hereof:
(i) Battle Mountain's Annual Report on Form 10-K for the
year ended December 31, 1997;
(ii) Battle Mountain's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1998 (as amended by the
Company's Form 10-Q/A dated April 29, 1998);
(iii) the audited Financial Statements of Lihir Gold Limited
included in Amendment No. 1 to the Company's Annual
Report on Form 10-K for the year ended December 31,
1996.
(iv) The description of the common stock, par value $0.10 per
share, of Battle Mountain (the "Battle Mountain Common
Stock") contained in Battle Mountain's Registration
Statement on Form 8-A dated August 12, 1987 (as amended
by a Form 8 dated April 24, 1991 and Form 8-A/A dated
August 26, 1996); and
(v) The description of the preferred stock purchase rights
associated with the Battle Mountain Common Stock
contained in Battle Mountain's Registration Statement on
Form 8-A dated November 15, 1988 (as amended by a Form 8
dated November 29, 1988 and Form 8-A/A dated August 26,
1996).
All documents filed by Battle Mountain Canada or Battle Mountain with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
subsequent to the date of this Registration Statement and prior to the filing of
a post-effective amendment to this Registration Statement which indicates that
all securities offered hereby have been sold or which deregisters all securities
then remaining unsold shall be deemed to be incorporated in this Registration
Statement by reference and to be a part hereof from the date of filing of such
documents. In lieu of separate reports filed by Battle Mountain Canada pursuant
to Section 13(a) of the Exchange Act, Battle Mountain's Annual Reports on Form
10-K will contain information describing the Exchangeable Shares of Battle
Mountain Canada and summarized financial
<PAGE>
information regarding Battle Mountain Canada. Any statement contained in this
Registration Statement, in a supplement to this Registration Statement or in a
document incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any subsequently filed supplement to this
Registration Statement or in any document that is subsequently incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
EXPERTS
The audited Consolidated Financial Statements and schedules of the
Company incorporated in this Registration Statement by reference to the
Company's annual report on Form 10-K for the year ended December 31, 1997,
except as they relate to the consolidated financial statements of Hemlo Gold
Mines Inc. for the year ended December 31, 1995, have been so incorporated in
reliance on the report of Price Waterhouse, LLP, independent accountants, and
insofar as they relate to Hemlo Gold Mines Inc., as of and for the year ended
December 31, 1995, on the report of Ernst & Young, independent chartered
accountants, given on the authority of such firms as experts in auditing and
accounting.
The audited Financial Statements of Lihir Gold Limited incorporated
in this Registration Statement by reference to Amendment No. 1 to the Company's
annual report on Form 10-K for the year ended December 31, 1996, have been so
incorporated in reliance upon the report of Coopers & Lybrand, independent
accountants, given on the authority of such firm as experts in auditing and
accounting.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Paragraphs 7 through 10 of the Bylaws of Battle Mountain Canada
provides for the indemnification of officers and directors of Battle Mountain
Canada to the extent permitted by the OBCA. Under the OBCA, a corporation may
indemnify a director or officer, a former director or officer or a person who
acts or acted at the corporation's request as a director or officer of a body
corporate of which the corporation is or was a shareholder or creditor, and his
or her heirs and legal representatives (an "Indemnifiable Person"), against all
costs, charges and expenses, including an amount paid to settle an action or
satisfy a judgment, reasonably incurred by him or her in respect of any civil,
criminal or administrative action or proceeding to which he or she is made a
party by reason of being or having been a director or officer of such
corporation or such body corporate, if (a) he or she acted honestly and in good
faith with a view to the best interests of such corporation; and (b) in the case
of a criminal or administrative action or proceeding that is enforced by a
monetary penalty, he or she had reasonable grounds for believing that his or her
conduct was lawful. An Indemnifiable Person is entitled to such indemnity from
the corporation if he or she was substantially successful on the merits in his
or her defense of the action or proceeding and fulfilled the conditions set out
in (a) and (b), above. A corporation may, with the approval of a court, also
indemnify an Indemnifiable Person in respect of an action by or
<PAGE>
on behalf of the corporation or body corporate to procure a judgment in its
favor, to which such person is made a party by reason of being or having been a
director or an officer of the corporation or body corporate, if he or she
fulfills the conditions set out in (a) and (b), above.
The above discussion of the Bylaws of Battle Mountain Canada and of
relevant provisions of the OBCA is not intended to be exhaustive and is
respectively qualified in its entirety by such Bylaws and statute.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Description
------ -----------
*4(a)(1) Restated Articles of Incorporation of Battle Mountain, as
amended and restated through May 11, 1988 (Exhibit 4(a)(1) to
Battle Mountain's Current Report on Form 8-K dated July 19,
1996; File No. 1-9666).
*4(a)(2) Certificate of Amendment to Restated Articles of Incorporation
of Battle Mountain filed with the Secretary of State of the
State of Nevada on July 19, 1996 (Exhibit 4(a)(2) to Battle
Mountain's Current Report on Form 8-K dated July 19, 1996; File
No. 1-9666).
*4(b) Certificate of Resolution Establishing Designation,
Preferences and Rights of $3.25 Convertible Preferred Stock
(Exhibit (4)(b) to Battle Mountain's Current Report on Form
8-K dated July 19, 1996; File No. 1-9666).
*4(c) Certificate of Amendment of Certificate of Resolution
Establishing Designation, Preferences and Rights of Series A
Junior Participating Preferred Stock (Exhibit 4(c) to Battle
Mountain's Current Report on Form 8-K dated July 19, 1996; File
No. I- 9666).
*4(d) Bylaws of Battle Mountain as amended through March 21, 1997
(Exhibit 3(d) to Battle Mountain's Annual Report on Form 10-K/A
for the year ended December 31, 1996; File No.
1-9666).
*4(e) Rights Agreement, dated November 10, 1988, as amended and
restated as of July 19, 1996, between Battle Mountain and The
Bank of New York, as Rights Agent (Exhibit 4(e) to Battle
Mountain's Current Report on Form 8-K dated July 19, 1996; File
No. 1-9666).
<PAGE>
*4(f) Articles of Amalgamation of Hemlo Gold dated January 1, 1995
(Exhibit 4(f) to Battle Mountain Canada's Registration
Statement on Form 8-A dated August 23, 1996; File No.
1-10943).
*4(g) Plan of Arrangement of Hemlo Gold under Section 182 of the
Business Corporations Act (Ontario) (Annex D to Exhibit 20(a),
Joint Management Information Circular and Proxy Statement, to
Battle Mountain's Current Report on Form 8-K dated June 11,
1996, File No. 1-9666).
*4(h) Bylaws of Battle Mountain Canada dated December 16, 1986
(Exhibit 4(h) to Battle Mountain Canada's Registration
Statement on Form 8-A dated August 23, 1996; File No. I-
10943).
*4(i) Rights Agreement, dated July 19, 1996, between Battle Mountain
Canada and The R-M Trust Company, as Rights Agent (Exhibit 4(f)
to Battle Mountain's Current Report on Form 8-K dated July 19,
1996; File No. 1-9666).
*4(j) Voting, Support and Exchange Trust Agreement dated as of July
19, 1996 between Battle Mountain, Hemlo Gold and The R-M Trust
Company (Annex E to Exhibit 20(a), Joint Management Information
Circular and Proxy Statement, to Battle Mountain's Current
Report on Form 8-K dated June 11, 1996, File No. 1-9666).
*4(k) Specimen Stock Certificate for the Common Stock of Battle
Mountain (Exhibit 4(b) to Battle Mountain's Annual Report on
Form 1O-K for the fiscal year ended December 31, 1988; File
No. 1-9666).
*4(l) Specimen Stock Certificate for the Exchangeable Shares of
Battle Mountain Canada (Exhibit 4(l) to Battle Mountain
Canada's Registration Statement on Form 8-A dated August 23,
1996; File No. 1-10943).
*4(m) Specimen Voting Stock Certificate for the Special Voting
Stock of Battle Mountain (Exhibit 4(m) to Battle Mountain
Canada's Registration Statement on Form 8-A dated August 23,
1996; File No. 1-10943).
*4(n) Amended and Restated 1994 Long-Term Incentive Plan of Battle
Mountain, as amended and restated through June 1, 1996
(Appendix B to Battle Mountain's definitive proxy statement
dated March 28, 1997 and filed with the Commission on March 28,
1997; File No. 1-9666).
4(o) 1997 Long-Term Incentive Plan of Battle Mountain Canada Ltd.
5 Opinion of McCarthy Tetrault
<PAGE>
23(a) Consent of Price Waterhouse LLP, independent accountants.
23(b) Consent of Ernst & Young, chartered accountants
23(c) Consent of McCarthy Tetrault (included in Exhibit 5).
23(d) Consent of Coopers & Lybrand, independent accountants.
--------------------
*Incorporated by reference as indicated.
<PAGE>
ITEM 9. UNDERTAKINGS.
(a) Battle Mountain Canada 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 I0(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this 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 this
Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent 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 this Registration Statement or any material change to such
information in this Registration Statement;
PROVIDED HOWEVER, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in
periodic reports filed by them pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered 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.
<PAGE>
(b) Battle Mountain Canada hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of its
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of Battle Mountain Canada pursuant to the foregoing provisions, or
otherwise, Battle Mountain Canada has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the
payment by Battle Mountain Canada of expenses incurred or paid by a
director, officer or controlling person of Battle Mountain Canada 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, Battle Mountain Canada 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 and will be governed by the final adjudication of such
issue.
<PAGE>
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-8 and has duty caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Toronto, Province of Ontario, on April 27, 1998.
BATTLE MOUNTAIN CANADA LTD.
By /s/ IAN D. BAYER
Ian D. Bayer, PRESIDENT AND
CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ IAN D. BAYER President and
- ---------------- Chief Executive Officer
(Ian D. Bayer) (Principal Executive Officer April 27, 1998
And Director)
/s/ MICHAEL C. PROCTOR Vice President--Finance and
- ---------------------- Corporate Secretary
(Michael C. Proctor) (Principal Financial and April 27, 1998
Accounting Officer)
/s/ JAMES W. MCCUTCHEON, Q.C. Director April 27, 1998
- -----------------------------
James W. McCutcheon, Q.C.
/s/ MARY MOGFORD Director April 27, 1998
- ----------------
Mary Mogford
<PAGE>
EXHIBIT INDEX
4(o) 1997 Long-Term Incentive Plan of Battle Mountain Canada Ltd.
5 Opinion of McCarthy Tetrault
23(a) Consent of Price Waterhouse LLP, independent accountants.
23(b) Consent of Ernst & Young, chartered accountants.
23(c) Consent of McCarthy Tetrault (included in Exhibit 5).
23(d) Consent of Coopers & Lybrand, independent accountants.
EXHIBIT 4(o)
BATTLE MOUNTAIN CANADA LTD.
1997 LONG-TERM INCENTIVE PLAN
1. GENERAL INFORMATION
The 1997 Long-Term Incentive Plan (the "Plan") is designed to retain
officers and other selected employees and reward them for making major
contributions to the success of the Company and its Subsidiaries (as hereinafter
defined). These objectives are to be accomplished by making awards under the
Plan and thereby providing Participants (as hereinafter defined) with a
proprietary interest in the growth and performance of the Company and its
Subsidiaries.
2. DEFINITIONS
When used in this Plan the following words and phrases shall have the
meaning indicated:
"Award" means the grant of any form of option to acquire Shares, stock
award or cash award, whether granted singly, in combination or in tandem,
to a Participant pursuant to any applicable terms, conditions or
limitations as the Board may establish in order to fulfill the objectives
of the Plan.
"Award Agreement" means a written agreement between the Company
and the grantee of an Award setting forth the terms of that Award;
"BMG" means Battle Mountain Gold Company, a Nevada company;
"BMG Plan" means the Amended and Restated 1994 Long-Term Incentive Plan
of BMG;
"BMG Shares" means common stock in the capital of BMG;
"Board" means the Board of Directors of the Company;
"Company" means Battle Mountain Canada Ltd.;
"Director" means a director of the Company;
"Effective Date" means the date on which an Award is granted or
any subsequent date so designated by the Board at the time the Award is
granted;
"Market Price" means, as of a particular date, the closing price of the
Shares on The Toronto Stock Exchange on the last trading day prior to such
date or, if no trading in the Shares has occurred on that date, the
average of the bid and ask quotations for the Shares on such date;
"Option" means an option to purchase Shares granted under the Plan;
"Option Period" has the meaning set out in paragraph 12 below;
<PAGE>
"Participant" means a person who has been or is to be granted an Award;
"Plan" has the meaning set out in paragraph 1 above;
"Shareholder" means a holder of Share(s);
"Shares" mean exchangeable shares in the capital of the Company; and
"Subsidiary" means any corporation in which the Company owns, directly or
indirectly, at least 50% of the voting stock.
3. ADMINISTRATION
The Plan shall be administered by the Board. The Board shall
have full and complete authority to interpret the Plan
and to prescribe such rules and regulations and make such
other determinations as it deems necessary or desirable
for the administration of the Plan, all of which shall be
exercised in the best interests of the Company and in
keeping with the objectives of the Plan. Unless otherwise
provided in an Award Agreement with respect to a
particular Award, the Board may, in its discretion,
provide for the extension of the exercisability of an
Award, accelerate the vesting or exercisability of an
Award (in the event of a direct or indirect change of
control of the Company or otherwise), eliminate or make
less restrictive any restriction contained in an Award,
waive any restriction or other provision of this Plan or
an Award or otherwise amend or modify an Award in any
manner that is either (i) not adverse to the Participant
holding such Award or (ii) consented to by such
Participant. The Board may correct any defect or supply
any omission or reconcile any inconsistency in this Plan
or in any Award in the manner and to the extent the Board
deems necessary or desirable to carry it into effect. Any
decision of the Board in the interpretation and
administration of this Plan shall lie within its sole and
absolute discretion and shall be final, conclusive and
binding on all parties concerned. No member of the Board
shall be liable for anything done or omitted to be done
by him or her, by any member of the Board or by any
officer of the Company in connection with the performance
of any duties under this Plan, except for his or her own
willful misconduct or as expressly provided by statute.
4. AWARDS
The Board shall determine the type or types of Awards to be
made to each Participant under this Plan. Awards may
consist of those listed in this paragraph 4 and may be
granted singly, in combination or in tandem. Awards may
also be made in combination or in tandem
<PAGE>
with, in replacement of, or as alternative to, grants or
rights under this Plan or any other employee plan of the
Company or its Subsidiaries, including the plan of any
acquired entity. An Award may provide for the granting
or issuance of additional, replacement or alternative
Awards upon the occurrence of specified events,
including the exercise of the original Award.
(a) OPTIONS TO ACQUIRE SHARES. An Award may consist of a right to purchase
a specified number of Shares at a specified price that is not less than
the Market Price of the Shares on the Effective Date. The Board shall
determine the Participants to whom, and the times at which, Awards shall
be granted, the number of Shares subject to each, the exercise price, the
period and method of vesting of Options, the Effective Date of each Option
and the Option Period.
(b) SHARE AWARD. An Award may consist of Shares or may be denominated in
units of Shares. All or part of any share award may be subject to
conditions established by the Board, and set forth in the Award Agreement,
which may include, but are not limited to, continuous service with the
Company and its Subsidiaries, achievement of specific business objectives,
increases in specified indices, attaining specified growth rates and other
comparable measurements of performance. Such Awards may be based on the
Market Value or other specified valuations. The certificates evidencing
Shares issued in connection with a share award shall contain appropriate
legends and restrictions describing the terms and conditions of the
restrictions applicable thereto.
(C) CASH AWARD. An Award may be denominated in cash with the amount of the
eventual payment subject to future service and such other restrictions
and conditions as may be established by the Board, as set forth in the
Award Agreement, including, but not limited to, continuous service
with the Company and its Subsidiaries, achievement of specific
business objectives, increases in specified indices, attaining
specified growth rates and other comparable measurements of
performance.
5. PAYMENT OF AWARDS.
5.1 GENERAL. Payment of Awards may be made in the form of cash, Shares
or combinations thereof and may include such restrictions as the
Board shall determine, including in the case of Shares, restrictions
on transfer and forfeiture provisions.
5.2 DEFERRAL PERIOD. With the approval of the Board, payments may be
deferred, either in the form of installments or a future lump sum
payment. The Board may permit selected Participants to elect to
defer some or all types of Awards in accordance with procedures
established with the Board. Any deferred payment, whether elected by
the Participant or specified by an Award Agreement or by the Board,
may be forfeited if and to the extent that the Award Agreement so
provides.
<PAGE>
5.3 DIVIDENDS AND INTEREST. Dividends or dividend equivalent rights may
be extended to and made part of any Award denominated in Shares or
units of Shares, subject to such terms, conditions and restrictions
as the Board may establish. The Board may also establish rules and
procedures for the crediting of interest on deferred cash payments
and dividend equivalents for deferred payment denominated in Shares
or units of Shares.
5.4 SUBSTITUTION OF AWARDS. At the discretion of the Board, a
Participant may be offered an election to substitute an Award for
another Award or Awards of the same or different type.
6. SHARES SUBJECT TO GRANT OF AWARDS
The Shares for which Awards are granted shall be authorized
but unissued Shares. The aggregate number of Shares which
may be issued under the Plan is limited to 2,500,000.
Each Share issued hereunder shall also be considered to
be an issuance under the BMG Plan, and shall (for greater
certainty) be subtracted upon issuance from the maximum
number of securities available again for issuance
thereunder. The share limits set out herein shall be
subject to increase or decrease by reason of
amalgamation, rights offerings, reclassification,
consolidations or subdivisions, as provided in paragraph
15 hereof, or as otherwise may be permitted by applicable
regulatory approval. Shares related to Awards that are
forfeited or terminated, expire unexercised, are settled
in cash in lieu of Shares or in a manner such that all or
some of the Shares covered by an Award are not issued to
a Participant, or are exchanged for Awards that do not
involve Shares, shall immediately become available for
Awards hereunder.
7. ELIGIBILITY
In order to be eligible for the grant of an Award by the
Board as provided herein, a person must be an officer or
employee of the Company or one of its Subsidiaries who
holds a position of responsibility and whose performance,
in the judgment of the Board, can have a significant
effect on the success of the Company and its
Subsidiaries.
8. AWARD AGREEMENT
Each Award made hereunder shall be embodied in an Award
Agreement, which shall contain such terms, conditions and
limitations as shall be determined by the Board in its
sole discretion and shall be signed by the Participant
and the Chief Executive Officer or the Chief Financial
Officer for and on behalf of the Company.
<PAGE>
9. EXERCISE PRICE
The exercise price for each Share covered by an Option
shall be not less than the Market Price of the Shares on
the Effective Date.
10. VESTING
The Board may from time to time, in its sole discretion,
determine the period or periods, if any, required in order for all or
portions of any Award to vest, the method of vesting and the circumstances,
if any, pursuant to which vesting will be accelerated.
11. EXERCISE OF OPTIONS
Subject to the provisions of paragraph 10 of this Plan, an Option may be
exercised from time to time during its term as to any number of whole Shares
which are then available for purchase. A Participant electing to exercise an
Option on his or her own behalf shall give written notice of the election to the
Company in any form acceptable to the Company. The aggregate amount to be paid
for the Shares to be acquired pursuant to the exercise of an Option shall
accompany the written notice.
12. OPTION PERIOD
Subject to the terms and conditions of the specific Award
Agreement evidencing the Option, each Option shall be
exercisable by the Participant during a period (the
"Option Period") established by the Board at the time the
Option is granted which shall terminate no later than ten
years after the Effective Date, except that:
12.1 in the event of the death or permanent disability of the
Participant, all Options held by the Participant shall vest
immediately and the Participant's estate shall have the right to
exercise at any time within the earlier of twelve months of the
death of the Participant and the expiry of the Option Period, all or
any portion of the Options which the Participant has not previously
exercised.
12.2 in the event of the termination of employment of a Participant, any
unexercised, deferred or unpaid Awards shall be treated as provided
in the specific Award Agreement evidencing the Award. In the event
of such a termination, the Board may, in its discretion, provide for
the extension of the exercisability of an Award, accelerate the
vesting or exercisability of an Award, eliminate or make less
restrictive any restrictions contained in an Award, waive any
restriction or other provision of this Plan or an Award or otherwise
amend or modify the Award in any manner that is either (i) not
adverse to such Participant or (ii) consented to by such
Participant.
All rights under an Option unexercised in whole or in part at
the termination of the Option Period shall be forfeited.
13. TAX WITHHOLDING
<PAGE>
The Company shall have the right to deduct applicable taxes
from any Award payment and withhold, at the time of
delivery or vesting of cash of Shares under this Plan, an
appropriate amount of cash or number of Shares or
combination thereof for payment of taxes required by law
or to take such other action as may be necessary in the
opinion of the Company to satisfy all obligations for
withholding of such taxes. The Board may also permit any
withholding obligation to be satisfied by the transfer to
the Company of Shares theretofore owned by the holder of
the Award with respect to which the holding is required.
If Shares are used to satisfy tax withholding, such
Shares shall be valued based on the Market Value thereof
when the tax withholding is required to be made.
14. NON-ASSIGNABLE
Except as expressly provided herein or unless otherwise determined by the
Board and provided in the Award Agreement, no Award or any other benefit under
this Plan shall be assignable or otherwise transferable. Options may be
exercised by the Participant and, upon the Participant's death, the legal
representative of his or her estate or any other person who acquires his or her
rights in respect of an Award by bequest or inheritance. A person exercising an
Option may subscribe for Shares only in his, her or its own name, as the case
may be, or in his or her capacity as a legal representative. The Board may
prescribe and include in the applicable Award Agreements other restrictions on
transfer. Any attempted assignment of an Award or any other benefit under this
Plan in violation of this paragraph 14 shall be null and void.
15. EFFECTS OF ALTERATION OF SHARE CAPITAL OF THE COMPANY
In the event of any change in the number or value of the outstanding
Shares by reason of any stock dividend, special dividend, stock split, rights
offering, recapitalization, merger, consolidation, combination or exchange of
Shares or other similar corporate change, an equitable adjustment shall be made
in the number and/or kind of Shares issued or issuable under the Plan or subject
to outstanding Awards and/or in the case of Options, in the exercise price of
such Shares. Such adjustment shall be made by the Board and shall be conclusive
and binding for all purposes of the Plan, subject to the approval of The Toronto
Stock Exchange, if required.
16. AMENDMENT AND TERMINATION
The Board may, at any time and from time to time, subject to the prior
approval of The Toronto Stock Exchange and any other required regulatory
approvals, amend, suspend or terminate the Plan in whole or in part. No such
amendment, suspension or termination may, without the consent of the Participant
to whom an Award shall theretofore have been granted, adversely affect the right
of such Participant.
17. CONDITIONS FOR ISSUANCE OF SHARES
<PAGE>
The obligation of the Company to issue Shares pursuant to this Plan shall
be subject to the condition that if at any time the Board shall determine, in
its discretion, that any registration, qualification or other approval in
connection with the Plan or the Shares covered thereby is necessary or desirable
under any provincial, federal or other law, then such Options may not be
exercised or such Shares not issued pursuant to any performance unit, in whole
or in part, unless and until such registration, qualification or approval shall
have been obtained free of any condition to acceptable to the Board.
18. RESTRICTIONS
No Shares or other form of payment shall be issued with respect to any
Award unless the Company shall be satisfied based on the advice of its counsel
that such issuance will be in compliance with applicable provincial securities
laws.
19. GOVERNING LAW
The Plan and any and all determinations made and actions taken in
connection with the Plan, shall be governed by and construed in accordance with
the laws of the province of Ontario and the laws of Canada applicable therein.
20. SEVERABILITY
To the extent a provision of the Plan required regulatory approval which
is not received, such provision shall be severed from the remainder of the Plan
until the approval is received and the remainder of the Plan shall remain in
effect.
DATED as of this 23rd day of October, 1997
BATTLE MOUNTAIN CANADA LTD.
Per:
Greg V. Etter
Assistant Secretary
EXHIBIT 5
[Letterhead of McCarthy Tetrault]
May 14, 1998
Battle Mountain Canada Ltd.
Suite 2500, Royal Trust Tower
Toronto-Dominion Centre
Toronto, Ontario
M5K IJ5
Gentlemen:
As set forth in the Registration Statement on Form S-8 (the "Registration
Statement") to be filed by Battle Mountain Canada Ltd., an Ontario corporation
("Battle Mountain Canada"), with the Securities and Exchange Commission under
the Securities Act of 1933, as amended (the "Securities Act"), relating to the
offering by Battle Mountain Canada of a maximum aggregate of 2,500,000
exchangeable shares of Battle Mountain Canada (the "Exchangeable Shares") to
holders of options under the 1997 Long-Term Incentive Plan of Battle Mountain
Canada ("Plan"), certain legal matters in connection with the 2,500,000
Exchangeable Shares subject to issuance pursuant to the Plan are being passed
upon for Battle Mountain Canada by us. At your request, this opinion is being
furnished to you for filing as Exhibit 5 to the Registration Statement.
In our capacity as counsel to Battle Mountain Canada, we have examined
Battle Mountain Canada's articles and bylaws, each as amended to date, and have
examined the originals, or copies certified or otherwise identified, of
corporate records of Battle Mountain Canada, statutes and other instruments and
documents as a basis for the opinions hereinafter expressed.
On the basis of the foregoing, we are of the opinion that, upon issuance
of and the payment for the Exchangeable Shares in accordance with the terms and
provisions of the Plan, the Exchangeable Shares will be duly authorized, validly
issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not hereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act.
Yours truly,
/s/ MCCARTHY TETRAULT
EXHIBIT 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 20, 1998 appearing on page 51
of Battle Mountain Gold Company's Annual Report on Form 10-K for the year ended
December 31, 1997. We also consent to the reference to us under the heading
"Experts" in such Registration Statement.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
Houston, Texas
May 21, 1998
EXHIBIT 23(b)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 8, 1996 appearing on page 52
of Battle Mountain Gold Company's Annual Report on Form 10-K for the year ended
December 31, 1997. We also consent to the reference to us under the heading
"Experts" in this Registration Statement.
/s/ ERNST & YOUNG
Chartered Accountants
Toronto, Canada
May 21, 1998
EXHIBIT 23(d)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement of Battle Mountain Canada, Ltd. on Form S-8 and the related prospectus
of our report dated March 13, 1997, on our audit of the financial statements of
Lihir Gold Limited as of December 31, 1996, and for the year then ended, which
report is included in Form 10-K/A for the year ended December 31, 1996. We also
consent to the reference to our firm under the caption "Experts."
/s/ COOPERS & LYBRAND
COOPERS & LYBRAND
Port Moresby, Papua New Guinea
May 21, 1998
