<PAGE>
As filed with the Securities and Exchange Commission on November 26, 1996
Registration No. 333-_____
Registration No. 33-84756
(Post-Effective Amendment No. 1)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
----------------------
MK GOLD COMPANY
----------------------
(Exact name of registrant as specified in its charter)
Delaware 82-0487047
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
60 East South Temple, Suite 2100
Salt Lake City, Utah 84111
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(Address of Principal Executive Offices)
--------------------
MK GOLD COMPANY
STOCK INCENTIVE PLAN
--------------------
(Full title of the plan)
JOHN C. FARMER
Controller, Treasurer and Secretary
MK Gold Company
60 East South Temple, Suite 2100
Salt Lake City, Utah 84111
(801)-237-1700
----------------
(Name, address and telephone number of agent for service)
Copies to: NATHAN W. JONES, ESQ.
Van Cott, Bagley, Cornwall & McCarthy
50 South Main Street, Suite 1600
Salt Lake City, Utah 84144
(801) 532-3333
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
Proposed
Title of Proposed Maximum
Securities Maximum Aggregate
to be Amount to be Offering Price Offering Amount of
Registered Registered Per Share/1/ Price/1/ Registration Fee/1/
- --------------- ---------------- -------------- ---------- -------------------
<S> <C> <C> <C> <C>
Common Stock, 1,500,000 Shares $1.75 $2,625,000 $905.17
par value $.01
per share
</TABLE>
- --------------------------------------------------------------------------------
/1/ Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rules 457(c) and (h) of the Securities Act of 1933, as amended, the
registration fee has been calculated based upon a price of $1.359375 per share,
the average of the high and low sales prices as reported in the consolidated
reporting system (NASDAQ) for the registrant's Common Stock on November 18,
1996.
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus to
which this Registration Statement and Post-Effective Amendment to Registration
Statement relate is a combined prospectus and relates to Registration Statement
33-84756 filed by the Registrant. The Post-Effective Amendment constitutes
Post-Effective Amendment No. 1 to Registration Statement No. 33-84756 and shall
become effective upon filing in accordance with Section 8(c) of the Securities
Act of 1933 and Rule 464 promulgated thereunder.
<PAGE>
Explanatory Note
This Registration Statement covers shares of Common Stock issuable
under the MK Gold Company Stock Incentive Plan. 1,000,000 shares of Common
Stock issuable under the Stock Incentive Plan were originally registered
pursuant to the Registrant's Registration Statement on Form S-8 (File
No. 33-84756). This Registration Statement covers an additional 1,500,000 shares
of Common Stock issuable under the Stock Incentive Plan as a result of the
approval by the stockholders of the Company of an amendment to the Stock
Incentive Plan on August 5, 1996.
1
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The documents containing the information specified in Part I of Form
S-8 (plan information and registrant information) will be sent or given to
employees as specified by Securities and Exchange Commission Rule 428(b)(1).
Such documents need not be filed with the Securities and Exchange Commission
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. These documents and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of Part II
hereof, taken together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act of 1933.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
See response to Item 1. above.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended March 31, 1996 filed pursuant to Section 13(a) of the Securities Exchange
Act of 1934 ("Exchange Act");
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Registrant's
document referred to in subparagraph (a), above; and
(c) Description of the Registrant's Common Stock, par value $.01 per
share, contained in the registration statement filed under the Exchange Act,
including any amendment or report filed for the purpose of updating such
information.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities offered have been sold
or which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be part hereof
from the date of filing of such documents.
Any statement contained herein or in a document, all or a portion of
which is incorporated or deemed to be incorporated by reference herein, shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is 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 amended, to constitute
a part of this Registration Statement.
2
<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable as the registrant's stock is registered under Section 12
of the Exchange Act.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Certificate of Incorporation, as amended (the "Certificate of
Incorporation"), of the Company provides that no director of the Company will be
personally liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director except for liability (i) for any breach
of the director's duty of loyalty to the Company or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law ("DGCL"), or (iv) for any transaction from which the director
derived any improper personal benefit.
The Certificate of Incorporation provides that each person who is or
was serving or who had agreed to serve as a director or officer of the Company
will be indemnified by the Company to the full extent permitted by the DGCL or
any other applicable law and will be entitled to advancement of expenses in
connection therewith. In addition, the Bylaws of the Company provide that the
Company will, to the fullest extent permitted by applicable law, indemnify and
advance expenses to any person who is or was involved in any manner or is
threatened to be made so involved in any threatened, pending, or completed
investigation, claim, action, suit, or proceeding by reason of the fact that
such person is or was serving or had agreed to serve as a director or officer of
the Company, or anything done or not done by such person in any such capacity,
against all expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person in connection
with such proceeding.
Section 145 of the DGCL authorizes the indemnification of directors and
officers against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred in connection with
any threatened, pending or completed action, suit or proceeding if the officer
or director acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interest of the corporation, and in the case of
actions by or in the right of the corporation, if the officer or director acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interest of the corporation, unless, despite the adjudication of
liability, a court otherwise determines. Indemnification also is authorized
with respect to any criminal action or proceeding where, in addition to the
above, the officer or director has no reasonable cause to believe that his
conduct was unlawful.
The above discussion of the Company's Certificate of Incorporation,
Bylaws and Section 145 of the DGCL is only a summary and is qualified in its
entirety by the full text of each of the foregoing.
The Company has or will enter into indemnification agreements with its
officers and directors. Such agreements provide contractually for mandatory
indemnification to the maximum extent permitted or required by statute and
include a separate indemnity provision, subject to limitations of applicable
law, providing for substantially broader indemnity rights than those presently
available by statute or the Certificate of Incorporation of the Company.
The Company intends to purchase insurance against certain losses
arising from claims which may be asserted against its directors and officers,
including claims under the Securities Act of 1933, as amended.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
3
<PAGE>
ITEM 8. EXHIBITS.
4.01 Certificate of Incorporation of the Company (filed as Exhibit
3.1 to the Registrant's Annual Report on Form 10-K for the
fiscal year ended March 31, 1996 and incorporated herein by
reference).
4.02 Amended and Restated Bylaws of the Company (filed as Exhibit 3.2
to the Registrant's Annual Report on Form 10-K for the fiscal
year ended March 31, 1996 and incorporated herein by reference).
4.03 MK Gold Company Stock Incentive Plan, as amended, (filed as
Appendix A to the Company's Definitive Proxy Statement, dated
July 10, 1996, and incorporated herein by reference).
5 Opinion of Van Cott, Bagley, Cornwall & McCarthy
23.01 Consent of Deloitte & Touche L.L.P.
23.02 Consent of Coopers & Lybrand.
23.03 Consent of Van Cott, Bagley, Cornwall & McCarthy (included in
Exhibit 5 to this Registration Statement)
ITEM 9. UNDERTAKINGS.
(a) RULE 415 UNDERTAKINGS.
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;
(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 paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the registrant
pursuant to section 13 or section 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.
4
<PAGE>
(b) SUBSEQUENT EXCHANGE ACT FILINGS UNDERTAKINGS.
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 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.
(c) INDEMNIFICATION UNDERTAKINGS.
Reference is made to the provisions of the Company's Certificate of
Incorporation, the Company's Bylaws, and the Delaware General Corporation Law,
described in Item 6 hereof, which provide for certain rights of indemnification
for officers and directors of the registrant.
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 Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by 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 Act and will be governed by the final adjudication of
such issue.
5
<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 duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Salt Lake City, State of Utah, on November 25, 1996.
MK GOLD COMPANY
By: /s/ G. Frank Joklik
-------------------------------------
G. Frank Joklik
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.
<TABLE>
<CAPTION>
Signature and Title Date
------------------- ----
<S> <C>
/s/ Robert V. Hansberger November 25, 1996
- --------------------------------------------------
Robert V. Hansberger
Chairman of the Board
/s/ G. Frank Joklik November 25, 1996
- --------------------------------------------------
G. Frank Joklik
President, Chief Executive Officer and Director
(Principal Executive Officer)
/s/ Phillip J. Bernhisel November 25, 1996
- --------------------------------------------------
Philip J. Bernhisel
Chief Financial Officer
(Principal Financial Officer)
/s/ John C. Farmer November 25, 1996
- --------------------------------------------------
John C. Farmer
Controller, Treasurer and Secretary
(Principal Accounting Officer)
/s/ Ian M. Cumming November 25, 1996
- --------------------------------------------------
Ian M. Cumming
Director
/s/ Gordon J. Humphrey November 25, 1996
- --------------------------------------------------
Gordon J. Humphrey
Director
/s/ James P. Miscoll November 25, 1996
- --------------------------------------------------
James P. Miscoll
Director
- -------------------------------------------------- ___________, 1996
Robert S. Shriver
Director
/s/ Joseph S. Steinberg November 25, 1996
- --------------------------------------------------
Joseph S. Steinberg
Director
</TABLE>
6
<PAGE>
LIST OF EXHIBITS
<TABLE>
<CAPTION>
Item No. Exhibit
- -------- -------
<C> <S>
4.01 Certificate of Incorporation of the Company (filed as Exhibit 3.1 to
the Registrant's Annual Report on Form 10-K for the fiscal year ended
March 31, 1996 and incorporated herein by reference).
4.02 Amended and Restated Bylaws of the Company (filed as Exhibit 3.2 to
the Registrant's Annual Report on Form 10-K for the fiscal year ended
March 31, 1996 and incorporated herein by reference).
4.03 MK Gold Company Stock Incentive Plan, as amended, (filed as Appendix A
to the Company's Definitive Proxy Statement, dated July 10, 1996, and
incorporated herein by reference).
5 Opinion of Van Cott, Bagley, Cornwall & McCarthy
23.01 Consent of Deloitte & Touche L.L.P.
23.02 Consent of Coopers & Lybrand.
23.03 Consent of Van Cott, Bagley, Cornwall & McCarthy (included in Exhibit
5 to this Registration Statement)
</TABLE>
<PAGE>
Exhibit 5
[LETTERHEAD OF VAN COTT, BAGLEY, CORNWALL & McCARTHY]
November 25, 1996
MK Gold Company
60 East South Temple, Suite 2100
Salt Lake City, Utah 84111
Gentlemen:
In our capacity as counsel to MK Gold Company, a Delaware corporation (the
"Company"), you have requested our opinion in connection with the filing of a
registration statement on Form S-8 (the "Registration Statement") by the Company
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
issuance of up to 1,500,000 shares of Common Stock, par value $.01 per share, of
the Company (the "Shares") under the Company's Stock Incentive Plan, as amended
(the "Plan").
In connection with the preparation of this opinion letter, and as the basis
for the opinion set forth below, we have made such investigations of the General
Corporation Law of the State of Delaware as we have deemed relevant and
necessary, and we have examined such documents and records as we have deemed
relevant and necessary.
Based upon and subject to the foregoing examination, we are of the opinion
that the sale and issuance of the Shares by the Company has been duly authorized
by the Company, and the Shares, when issued, delivered and paid for as
contemplated by the Plan, will be validly issued, fully paid and non-assessable.
<PAGE>
MK Gold Company
November 25, 1996
Page 2
We hereby consent to the filing of this opinion letter as Exhibit 5 to the
Registration Statement. In giving this consent, we do not admit that we are
within the category of persons whose consent is required under Section 7 of the
Securities Act or the General Rules and Regulations of the Commission. This
opinion letter does not extend to and may not be relied upon or assigned to any
other person or party.
Very truly yours,
VAN COTT, BAGLEY, CORNWALL & McCARTHY
By /s/ Nathan W. Jones
-----------------------------------
Nathan W. Jones
<PAGE>
Exhibit 23.01
[LETTERHEAD OF DELOITTE & TOUCHE LLP]
INDEPENDENT AUDITORS' CONSENT
- -----------------------------
We consent to the incorporation by reference in this Registration Statement of
MK Gold Company (the Company) on Form S-8 of our report dated June 13, 1996,
appearing in the Annual Report on Form 10-K of the Company for the year ended
March 31, 1996.
/s/ Deloitte & Touche LLP
November 22, 1996
<PAGE>
Exhibit 23.02
[LETTERHEAD OF COOPERS & LYBRAND]
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
MK Gold Company on Form S-8 of our report dated May 5, 1995, on our audits of
the financial statements of the Castle Mountain Venture (not presented
separately therein) as at March 31, 1995 and 1994, and for the year ended March
31, 1995 and the three months ended March 31, 1994, which report is included in
the Company's Annual Report on Form 10-K for the year ended March 31, 1996.
Vancouver, Canada /s/ Coopers & Lybrand
November 22, 1996 Chartered Accountants
