1
Registration No. 33-________________
As filed with the Securities and Exchange Commission on February 17, 1995.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
_________________________________________
FIRSTMISS GOLD, INC.
(Exact name of issuer as specified in its charter)
NEVADA 64-0748908
(State of Incorporation) (I.R.S. Employer ID Number)
5190 NEIL ROAD, SUITE 310
RENO, NEVADA 89502
(Address of Principal Executive Offices) (Zip Code)
FIRSTMISS GOLD AMENDED AND RESTATED
LONG-TERM INCENTIVE PLAN
(Full Title of the Plan)
JAMES L. MCARTHUR, SECRETARY
FIRSTMISS GOLD INC.
P. O. BOX 1249
JACKSON, MISSISSIPPI 39215-1249
(601) 948-7550
(Name, address and telephone number of agent for service)
- ----------------------------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------
Title of Amount Proposed Proposed Maxi- Amount of
Securities to to be Maximum Offering mum Aggregate Registration
be Registered Registered Price Per Share(1) Offering Price Fee
================================================================================================================
Common Stock 1,000 Issuable upon Not Applicable Not Applicable
par value $.01 shares(2) conversion
- ----------------------------------------------------------------------------------------------------------------
1994-A Series 1,000 Issuable upon Not Applicable Not Applicable
Convertible shares(2) conversion
Preferred Stock
- ----------------------------------------------------------------------------------------------------------------
1994-A Series $ 9,531.25 100% of face $ 9,531.25 $3.29*
Convertible amount
Subordinated
Debentures
- ----------------------------------------------------------------------------------------------------------------
(1) Estimated solely for calculation of the registration fee pursuant to
Rule 457(i).
(2) Subject to anti-dilution increases permitted by Rule 416.
*Minimum fee of $100 has been wire transferred.
2
PART II
INFORMATION REQUESTED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed with the Commission by FirstMiss
Gold Inc. (the "Company") are incorporated herein by reference: (1) the
Company's Annual Report on Form 10-K for the fiscal year ended June 30, 1994;
(2) the Company's Quarterly Report on Form 10-Q for quarter ended December 31,
1994; (3) the description of the Common Stock of the Company contained in Item
1 of the Company's Registration Statement on Form 8-A filed on January 22,
1988, as amended by Item 5 of the Company's Current Report on Form 8-K, dated
as of June 13, 1990, by the description of supermajority voting requirements
contained in the Company's definitive proxy statement dated September 24, 1990,
for its annual meeting of stockholders held on November 1, 1990; (4) Item 5 of
the Company's Current Report on Form 8-K, dated as of November 6, 1991; and by
any other reports and proxy statements which update the Form 8-A, including
Quarterly Reports on Form 10-Q describing various series of the Company's
Preferred Stock authorized for issuance under the Plan and described in Item 4
below. All documents filed hereafter by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 prior to the
termination of the offering hereunder shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the
date of filing of such documents.
Item 4. Description of Securities.
See Item 3 for description of Common Stock (including any provision of
the Company's Articles of Incorporation or Bylaws having an effect on
a change of control of the Company).
NOTE: Each series of debentures and Preferred Stock, other than the 1994-A
series of debentures and the 1994-A series of Preferred Stock, has
been registered under a previously filed Registration Statement
relating to the Company's Long-Term Incentive Plan, as amended. All
existing series of debentures and all existing series of Preferred
Stock created for issuance under the Plan must be described in the
Prospectus used in connection with this Registration Statement, so the
following composite description of all such series is also being used
in this Registration Statement instead of preparing a separate
description covering only the series of debentures and Preferred Stock
being registered hereby.
Debentures
The Company has created eleven series of debentures for
issuance pursuant to debenture options under the Company's Long-Term Incentive
Plan (the "Plan"), which have been designated as the Company's 1988-A Series
Convertible Subordinated Debentures (the "1988-A Series Debentures"), the
1989-A Series Convertible Subordinated Debentures (the "1989-A Series
Debentures"), the 1989-B Series Convertible Subordinated Debentures (the
"1989-B Series Debentures"), the 1990-A Series
-2-
3
Convertible Subordinated Debentures (the "1990-A Series Debentures"), the
1990-B Series Convertible Subordinated Debentures (the "1990-B Series
Debentures"), the 1990-C Series Convertible Subordinated Debentures (the
"1990-C Series Debentures"), the 1991-A Series Convertible Subordinated
Debentures (the "1991-A Series Debentures"), the 1991-B Series Convertible
Subordinated Debentures (the "1991-B Series Debentures"), the 1992-A Series
Convertible Subordinated Debentures (the "1992-A Series Debentures"), the
1993-A Series Convertible Subordinated Debentures (the "1993-A Series
Debentures") and the 1994-A Series Convertible Subordinated Debentures (the
"1994-A Series Debentures"). These eleven debenture series will sometimes be
referred to collectively as the "Debentures" and, except as otherwise
indicated, are subject to the same terms and conditions. The Company has
authorized the issuance, pursuant to the exercise of debenture options, of an
aggregate principal amount of $416,500 of 1988-A Series Debentures, $167,700 of
1989-A Series Debentures, $40,750 of 1989-B Series Debentures, $186,812.50 of
1990-A Series Debentures, $140,250 of 1990-B Series Debentures, $27,187.50 of
1990-C Series Debentures, $164,500 of 1991-A Series Debentures, $16,250 of
1991-B Series Debentures, $29,062.50 of 1992-A Series Debentures, $31,875 of
1993-A Series Debentures and $9,531.25 of 1994-A Series Debentures. The only
Debenture outstanding as of December 31, 1994, was a 1991-A Series Debenture in
the amount of $11,750. The 1988-A Series Debentures, the 1989-A Series
Debentures, the 1989-B Series Debentures, the 1990-A Series Debentures, the
1990-B Series Debentures, the 1990-C Series Debentures, the 1991-A Series
Debentures, the 1991-B Series Debentures, the 1992-A Series Debentures, the
1993-A Series Debentures, and the 1994-A Series Debentures are governed by
Indentures dated as of July 13, 1988, August 9, 1989, November 2, 1989, August
8, 1990, November 1, 1990, November 2, 1990, August 14, 1991, November 7, 1991,
November 5, 1992, November 4, 1993, and November 3, 1994, respectively, as
amended by Supplemental Indentures dated November 6, 1991, (the "Indentures"),
all between the Company and Deposit Guaranty National Bank, as Trustee (the
"Trustee"), One Deposit Guaranty Plaza, Jackson, Mississippi 39201.
The 1988-A Series Debentures will mature on July 12, 1998; the
1989-A Series Debentures will mature on August 8, 1999; the 1989-B Series
Debentures will mature on November 1, 1999; the 1990-A Series Debentures will
mature on August 7, 2000; the 1990-B Series Debentures will mature on October
31, 2000; the 1990-C Series Debentures will mature on November 1, 2000; the
1991-A Series Debentures will mature on August 13, 2001; the 1991-B Series
Debentures will mature on November 6, 2001; the 1992-A Series Debentures will
mature on November 4, 2002; the 1993-A Series Debentures will mature November
3, 2003, and the 1994-A Series Debentures will mature on November 2, 2004. In
certain circumstances described below, the Debentures may be redeemed prior to
their due date. The 1988-A, 1989-A, 1989-B, 1990-A, 1990-B, 1990-C, 1991-A,
1991-B, 1992-A, 1993-A and 1994-A Series Debentures will be subordinated
generally to the Company's other indebtedness, except that they will rank
equally with each other and any other series of debentures created for issuance
under the Plan. Interest on the Debentures will be payable semiannually on
January 1 and July 1 of each year.
The Debentures will bear interest at a floating rate of 1%
less than the rate publicly announced as its prime rate by Deposit Guaranty
National Bank in Jackson, Mississippi, but not more than the maximum legal rate
permitted under the law.
-3-
4
Amendments to the Plan approved by the stockholders in
November, 1991 changed the six-month holding period before a debenture can be
converted into Preferred Stock so that such holding period now begins on the
date a debenture option is granted, rather than on the date a debenture is
purchased upon exercise of a debenture option. The Plan was further amended by
the Board of Directors to provide that administrative responsibilities relating
to the Plan be handled by a committee composed of outside directors.
Furthermore, the Company has entered into Supplemental Indentures with Deposit
Guaranty National Bank to reflect the change in the debenture holding period
and to require that Preferred Stock issuable upon conversion of a debenture
will not be transferable except in certain situations. These amendments and
resulting Supplemental Indentures reflect the new rules, effective May 1, 1991,
promulgated by the SEC under Section 16 of the Securities Exchange Act of 1934.
Amendments to the Plan approved by the stockholders in
November, 1992 provided that for all Plan purposes "fair market value" be
calculated using the average of the highest and lowest price of the Company's
Common Stock the day an option is granted, or if no such sale is made that day,
then on the latest preceding day. The amendment is retroactive to November,
1989. The Plan contains a more complete definition of "fair market value."
Subject to the conditions described herein, at any time more
than six months after the date of grant of the applicable Debenture Option and
prior to the redemption or payment thereof, the 1988-A Series Debentures will
be convertible at the Conversion Price of $8.50 per share into fully paid and
non-assessable shares of 1988-A Series Convertible Preferred Stock; the 1989-A
Series Debentures will be convertible at the Conversion Price of $9.75 per
share into fully paid and non-assessable shares of 1989-A Series Convertible
Preferred Stock; the 1989-B Series Debentures will be convertible at the
Conversion Price of $10.1875 per share into fully paid and non-assessable
shares of 1989-B Series Convertible Preferred Stock; the 1990-A Series
Debentures will be convertible at the Conversion Price of $7.625 per share into
fully paid and non-assessable shares of 1990-A Series Convertible Preferred
Stock; the 1990-B Series Debentures will be convertible at the Conversion Price
of $5.50 per share into fully paid and non-assessable shares of 1990-B Series
Convertible Preferred Stock; the 1990-C Series Debentures will be convertible
at the Conversion Price of $5.4375 per share into fully paid and non-assessable
shares of 1990-C Series Convertible Preferred Stock; the 1991-A Series
Debentures will be convertible at the Conversion Price of $2.9375 per share
into fully paid and non-assessable shares of 1991-A Series Convertible
Preferred Stock; the 1991-B Series Debentures will be convertible at the
Conversion Price of $3.250 per share into fully paid and non-assessable shares
of 1991-B Series Convertible Preferred Stock; the 1992-A Series Debentures will
be convertible at the Conversion Price of $5.8125 per share into fully paid and
non-assessable shares of 1992-A Series Convertible Preferred Stock; the 1993-A
Series Debentures will be convertible at the Conversion Price of $6.375 per
share into fully paid and non-assessable shares of 1993-A Series Convertible
Preferred Stock and the 1994-A Series Debentures will be convertible at the
Conversion Price of $9.53125 per share into fully paid and non-assessable
shares of 1994-A Series Convertible Preferred Stock. Each share of the
above-described Preferred Stock will be convertible immediately into one share
of Common Stock, subject to adjustment in certain events. See "Preferred
Stock." In light of the adjustments provided for the conversion ratio of the
1988-A, 1989-A, 1989-B, 1990-A, 1990-B, 1990-C, 1991-A, 1991-B, 1992-A, 1993-A
and 1994-A Series Convertible Preferred Stock, no adjustment in the Conversion
Price for the 1988-A, 1989-A, 1989-B, 1990-A, 1990-B, 1990-C, 1991-A, 1991-B,
1992-A, 1993-A and 1994-A Series Debentures will be made.
-4-
5
A participant generally may not sell, assign, transfer, pledge
or otherwise hypothecate a Debenture except by will or intestate succession.
With the Company's consent, however, participants may pledge Debentures as
security for loans which will provide all or a part of the financing necessary
to purchase the Debentures. If a participant makes a permitted pledge of a
Debenture, the conversion privilege will not be exercisable during such time as
the Debenture is pledged. Upon notice from the participant and the lender to
which the Debenture was pledged that the Debenture has been released from the
pledge, the conversion privilege will again be exercisable. If a participant
sells, assigns, transfers, pledges or otherwise hypothecates a Debenture in a
manner not permitted under the Indenture or if a party forecloses on a
permitted pledge, the conversion right will permanently cease to exist. Should
the conversion right of a Debenture so terminate, the Company has the option,
but not the obligation, to prepay the Debenture.
Debentures may be converted in whole or in part but no partial
conversion will be permitted if, following conversion, the remaining principal
amount of the Debenture would be less than $1,000. Shares of 1988-A, 1989-A,
1989-B, 1990-A, 1990-B, 1990-C, 1991-A, 1991-B, 1992-A, 1993-A and 1994-A
Series Stock will be issued upon conversion of Debentures in whole shares only.
If more than one Debenture is surrendered for conversion at one time by the
same holder, the number of whole shares issuable upon conversion will be
computed upon the basis of the aggregate principal amount of such Debentures
(or portions thereof specified for conversion) so surrendered. Any fractional
interest in a share otherwise deliverable upon conversion will be settled by
payment in the form of a check or cash equal to the product obtained by
multiplying the applicable Conversion Price per share times such fractional
interest.
The Company may redeem all or any part of the 1988-A, 1989-A,
1990-A, 1990-B or 1991-A Series Debentures on any January 1 or July 1 upon
mailing a notice of redemption not less than 12 nor more than 18 months prior
to the date fixed for such redemption to the holders of the Debentures to be
redeemed at their last registered addresses. Each Debenture is redeemable for
its principal amount together with accrued interest to the date fixed for
redemption. Except as provided below, if only a part of a series of Debentures
is to be redeemed, the Company will specify the amount to be redeemed using a
method the Trustee deems fair and appropriate. The Trustee may provide for the
selection for redemption of portions of the principal amount of a series of
Debentures. If a holder of a Debenture is not employed by an Eligible
Employer, the Company may designate for redemption any Debentures owned by such
person, regardless of whether the Company redeems any other 1988-A, 1989-A,
1990-A, 1990-B or 1991-A Series Debentures at the same time. If the Company
calls for redemption the 1988-A, 1989-A, 1990-A, 1990-B or 1991-A Series
Debentures issued pursuant to the Plan, the Company may also redeem all of the
1989-B, 1990-C, 1991-B, 1992-A, 1993-A or 1994-A Series Debentures held by
Outside Directors on any January 1 or July 1 upon mailing a notice for such
redemption to the holders of such Debentures at their last registered address.
Purchasers may convert their Debentures at any time prior to the close of
business on the redemption date, subject to the limitations on conversion
privileges described above. A holder may redeem a Debenture at its principal
amount plus accrued interest on any January 1 or July 1 more than one year
after issuance of the Debenture.
In the event that the Company enters into certain merger
transactions, becomes a party to a consolidation, or transfers all or
substantially all of its assets to another company, a supplemental indenture
will be executed to provide that the holder of each Debenture then outstanding
may convert
-5-
6
such Debenture into the kind and amount of shares of stock, cash or property
receivable upon the merger, consolidation, or transfer by a holder of the
number of shares of the applicable series of the Company's Convertible
Preferred Stock issuable upon conversion of such Debenture if such shares of
Preferred Stock had been outstanding immediately prior to such merger,
consolidation or transfer.
Each Indenture may be amended to modify the rights of holders
of the Debentures or otherwise modify the terms of such Indenture with the
consent of the Company, the Trustee and the holders of not less than 66 2/3% in
aggregate principal amount of the respective series of Debentures covered
thereby, except that the maturity date, the rate and time of payment for
interest, the conversion rights and certain other specified terms may not be
modified without the consent of all affected holders of the series of
Debentures involved.
Each Indenture defines an "Event of Default" as: (a) any
default in the payment of interest which continues for 30 days after the due
date; (b) any default in the payment of principal when due on the Debentures
covered thereby; (c) failure by the Company to observe or perform any of its
other covenants and agreements with respect to the Debentures covered thereby
or in such Indenture which continues for 60 days after specific written notice
of such failure has been given to the Company by the Trustee or to the Company
and the Trustee by holders of at least 25% in principal amount of the
Debentures covered thereby; (d) certain events of default that cause other
indebtedness of the Company to be accelerated and which are not cured or
otherwise remedied within specified times; and (e) certain events of bankruptcy
of the Company. Upon the happening and during the continuance of an Event of
Default, each Indenture allows the Trustee or the holders of at least 25% in
aggregate principal amount of the Debentures covered thereby to declare the
principal and accrued interest on all Debentures covered thereby to be due and
payable immediately. The holders of a majority in aggregate principal amount
of the outstanding Debentures of the series so affected will have the right to
direct the time, method and place of conducting any proceeding or any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, but the Trustee, subject to its obligation to exercise such of the
rights and powers vested in it by such Indenture and to use the same degree of
care and skill in their exercise or use as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs, may decline to
follow any such direction if the Trustee in good faith determines that the
proceedings so directed would involve it in a personal liability or be in
conflict with any law or provision of such Indenture. The Company is required
by each Indenture to deliver annually to the Trustee a certificate from
appropriate officers certifying that, to the best of their knowledge, the
Company has satisfied all of its obligations under such Indenture during the
preceding fiscal year.
In the event of any insolvency or bankruptcy proceedings, and
any receivership, liquidation, reorganization, or other similar proceedings in
connection therewith, relative to the Company or to its creditors, as such, or
to its property, and in the event of any proceedings for voluntary liquidation,
dissolution, or other winding up of the Company, whether or not involving
insolvency or bankruptcy, or in the event that any Debenture is declared due
and payable before its expressed maturity for any reason, then the holders of
Senior Indebtedness then outstanding shall be entitled to receive payment in
full of all such Senior Indebtedness (as defined below) before the holders of
the Debentures are entitled to receive any payment on account of principal or
interest upon the Debentures.
-6-
7
No payment of principal or interest will be made on the
Debentures during any period that any Senior Indebtedness has matured and has
not been paid in full, refunded or replaced by new indebtedness. The term
"Senior Indebtedness" shall mean all indebtedness for borrowed money (except
the Debentures) (whether or not secured), heretofore or hereafter incurred by
the Company (or heretofore or hereafter incurred by another person, including
but not limited to a Subsidiary, and the repayment of which is guaranteed by
the Company or which the Company is contingently obligated to repay, purchase,
or otherwise acquire), unless the terms of the instrument evidencing such
indebtedness specifically provide that such indebtedness is not superior in
right of payment to the Debentures, and any deferrals, renewals or extensions
of any such indebtedness; provided, however, that the term "indebtedness for
borrowed money" shall not include indebtedness representing money borrowed by
the Company from a Subsidiary; and provided, further, that the term "Senior
Indebtedness" includes but is not limited to indebtedness incurred under that
certain Credit Agreement dated as of December 30, 1987 by and among FMG Inc.,
the Company and Westpac Banking Corporation. At June 30, 1994, the Company had
outstanding $29,339,000 of indebtedness which would constitute Senior
Indebtedness.
By reason of such subordination, in the event of the Company's
insolvency, certain general creditors of the Company may recover more ratably
than holders of the Debentures.
Preferred Stock
The Company is authorized to issue up to 10,000,000 shares of
Preferred Stock in one or more series (the "Preferred Stock"), and the Board is
authorized to determine the form, class, series and amounts in which the
Preferred Stock shall be issued; the price or prices (not less than par) at
which such stock shall be sold; the dividend rights, conversion rates,
conversion prices, par value, voting privileges, redemption prices, maturity
dates, and any other terms and conditions relative to the issuance of the
Preferred Stock. Pursuant to this authority, the Board has established the
1988-A, 1989-A, 1989-B, 1990-A, 1990-B, 1990-C, 1991-A, 1991-B, 1992-A, 1993-A
and 1994-A Series Convertible Preferred Stock (the "Series Stock") and has
authorized the issuance of up to 49,000 shares of the 1988-A Series Stock,
17,200 shares of the 1989-A Series Stock, 4,000 shares of the 1989-B Series
Stock, 24,500 shares of the 1990-A Series Stock, 25,500 shares of the 1990-B
Series Stock, 5,000 shares of the 1990-C Series Stock, 56,000 shares of the
1991-A Series Stock, 5,000 shares of the 1991-B Series Stock, 5,000 shares of
the 1992-A Series Stock, 5,000 shares of the 1993-A and 1,000 shares of the
1994-A Series Stock.
The 1988-A Series Stock, the 1989-A Series Stock, the 1989-B
Series Stock, the 1990-A Series Stock, the 1990-B Series Stock, the 1990-C
Series Stock, the 1991-A Series Stock, the 1991-B Series Stock, the 1992-A
Series Stock, the 1993-A Series Stock and 1994-A Series Stock each has a par
value of $.01 per share and is not entitled to receive any dividends. Each
share of 1988-A Series Stock, 1989-A Series Stock, 1989-B Series Stock, 1990-A
Series Stock, 1990-B Series Stock, 1990-C Series Stock, 1991-A Series Stock,
1991-B Series Stock, 1992-A Series Stock, 1993-A Series Stock and 1994-A Series
Stock will be convertible immediately into one share of the Company's Common
Stock, subject to adjustment in certain events including the issuance of stock
dividends on the Company's Common Stock, distribution of property other than
cash or Common Stock, and any subdivision, combination, recapitalization,
merger, consolidation, exchange of shares or the like, which results in any
change in the Common Stock subsequent to the grant of a debenture option.
-7-
8
The Company will not issue fractional shares of Common Stock
upon conversion of 1988-A Series Stock, 1989-A Series Stock, 1989-B Series
Stock, 1990-A Series Stock, 1990-B Series Stock, 1990-C Series Stock, 1991-A
Series Stock, 1991-B Series Stock, 1992-A Series Stock, 1993-A Series Stock and
1994-A Series Stock. In lieu of such fractions, the Company will pay to the
holder of 1988-A Series Stock, 1989-A Series Stock, 1989-B Series Stock, 1990-A
Series Stock, 1990-B Series Stock, 1990-C Series Stock, 1991-A Series Stock,
1991-B Series Stock, 1992-A Series Stock, 1993-A Series Stock or 1994-A Series
Stock requesting conversion an amount in cash equal to the market value of such
fraction at the time of such conversion, as determined by the Board.
Any or all of the 1988-A Series Stock, 1989-A Series Stock,
1989-B Series Stock, 1990-A Series Stock, 1990-B Series Stock, 1990-C Series
Stock, 1991-A Series Stock, 1991-B Series Stock, 1992-A Series Stock, 1993-A
Series Stock or 1994-A Series Stock outstanding at any time may be redeemed at
the option of the Company in whole or in part at any time upon not less than 20
nor more than 60 days notice to the record holders at their last address as
shown in the stock transfer records of the Company. The conversion right with
respect to any shares called for redemption will be lost unless exercised no
later than the day fixed for redemption. The redemption price per share will
be $8.50 for the 1988-A Series Stock, $9.75 for the 1989-A Series Stock,
$10.1875 for the 1989-B Series Stock, $7.625 for the 1990-A Series Stock, $5.50
for the 1990-B Series Stock, $5.4375 for the 1990-C Series Stock, $2.9375 for
the 1991-A Series Stock, $3.250 for the 1991-B Series Stock, $5.8125 for the
1992-A Series Stock, $6.375 for the 1993-A Series Stock and $9.53125 for the
1994-A Series Stock. No redemption could be made if the Company's financial
condition is such that such redemption would be unlawful under Nevada law.
Upon any voluntary or involuntary liquidation or dissolution
of the Company, the holders of the 1988-A Series Stock will be entitled to a
liquidation preference of $8.50 per share; the holders of the 1989-A Series
Stock will be entitled to a liquidation preference of $9.75 per share; the
holders of the 1989-B Series Stock will be entitled to a liquidation preference
of $10.1875 per share; the holders of the 1990-A Series Stock will be entitled
to a liquidation preference of $7.625 per share; the holders of the 1990-B
Series Stock will be entitled to a liquidation preference of $5.50 per share;
the holders of the 1990-C Series Stock will be entitled to a liquidation
preference of $5.4375 per share; the holders of the 1991-A Series Stock will be
entitled to a liquidation preference of $2.9375 per share; the holders of the
1991-B Series Stock will be entitled to a liquidation preference of $3.250 per
share; the holders of the 1992-A Series Stock will be entitled to a liquidation
preference of $5.8125 per share; the holders of the 1993-A Series Stock will be
entitled to a liquidation preference of $6.375 per share and the holders of the
1994-A Series Stock will be entitled to a liquidation preference of $9.53125
per share before any distribution of assets may be made to the holders of
Common Stock or other shares junior to the 1988-A Series Stock, the 1989-A
Series Stock, the 1989-B Series Stock, the 1990-A Series Stock, the 1990-B
Series Stock, the 1990-C Series Stock, the 1991-A Series Stock, the 1991-B
Series Stock, the 1992-A Series Stock, the 1993-A Series Stock and the 1994-A
Series Stock. After the holders of such stock have received such amount, they
may not participate in any remaining assets and surplus funds of the Company.
If the amounts which holders of such stock and any other series of Preferred
Stock ranking equally as to distribution of assets are entitled to receive in
any voluntary or involuntary liquidation or dissolution are not paid in full,
the shares of 1988-A Series Stock, 1989-A Series Stock, 1989-B Series Stock,
1990-A Series Stock, 1990-B Series Stock, 1990-C Series Stock, 1991-A Series
Stock, 1991-B Series Stock, 1992-A Series Stock, 1993-A Series Stock, and
1994-A Series Stock and such other series will share ratably in any
distribution of assets in accordance with
-8-
9
the amounts which would be payable on such distribution if all amounts to which
the holders of each such series are entitled are paid in full.
Additional series of Preferred Stock may be created and shares
thereof may be issued by the Company without any approval or action by the
holders of the 1988-A Series Stock, 1989-A Series Stock, 1989-B Series Stock,
1990-A Series Stock, 1990-B Series Stock, 1990-C Series Stock, the 1991-A
Series Stock, the 1991-B Series Stock, the 1992-A Series Stock, the 1993-A
Series Stock or the 1994-A Series Stock being necessary, and such additional
series of stock may rank equally with the 1988-A Series Stock, 1989-A Series
Stock, 1989-B Series Stock, 1990-A Series Stock, 1990-B Series Stock, 1990-C
Series Stock, 1991-A Series Stock, 1991-B Series Stock, 1992-A Series Stock,
1993-A Series Stock and the 1994-A Series Stock as to distribution of the
Company's assets in the event of liquidation or dissolution.
The holders of shares of 1988-A Series Stock, 1989-A Series
Stock, 1989-B Series Stock, 1990-A Series Stock, 1990-B Series Stock, 1990-C
Series Stock, 1991-A Series Stock, 1991-B Series Stock, 1992-A Series Stock,
1993-A Series Stock and 1994-A Series Stock will not be entitled to vote except
in certain circumstances as provided by law. Holders of such stock do not have
preemptive rights.
Item 5. Interests of Named Experts and Counsel.
Legal matters, other than those relating to tax consequences,
in connection with the securities covered by this Prospectus have been passed
upon by J. Steve Chustz, General Counsel of the Company. Mr. Chustz also
serves as General Counsel of the Company's parent corporation, First
Mississippi Corporation ("First Mississippi") and as General Counsel of various
subsidiaries of First Mississippi. As of January 30, 1995, Mr. Chustz owned no
shares of the Company's Common Stock, and is not a participant under the Plan.
As of January 30, 1995, Mr. Chustz beneficially owned 1,227 shares of First
Mississippi Common Stock and 23,500 shares of Common Stock of First Mississippi
Corporation through the right to exercise Non-qualified Stock Options.
The consolidated financial statements and financial statement
schedules of the Company and subsidiary as of June 30, 1994 and 1993 and for
each of the years in the three-year period ended June 30, 1994, which are
incorporated herein by reference, have been incorporated herein in reliance
upon the reports, also incorporated herein by reference, of KPMG Peat Marwick
LLP, independent certified public accountants, and upon the authority of said
firm as experts in accounting and auditing. To the extent that KPMG Peat
Marwick LLP audits and reports on financial statements of the Company and
subsidiary issued at future dates, and consents to the use of their reports
thereon, such financial statements also will be incorporated herein by
reference in reliance upon their reports and said authority.
Item 6. Indemnification of Directors and Officers.
As permitted by Section 78.751 of the Nevada General
Corporation Law, the Company's Articles of Incorporation (the "Articles") and
bylaws (the "Bylaws") provide for the indemnification of officers, directors,
employees and agents of the Company. The Articles and Bylaws specify the
standards of conduct required to be met to qualify for indemnity and establish
procedures for
-9-
10
determining whether these standards are met. The standards require that the
person seeking to be indemnified must have (a) been successful on the merits or
otherwise in defense of the action or proceeding or (b) acted in good faith and
in a manner reasonably believed to be in or not opposed to the best interests
of the Company, and, with respect to any criminal action or proceeding, such
person must have had no reasonable cause to believe his conduct was unlawful;
provided, however, that if the action, suit or proceeding is by or on behalf of
the Company, no indemnification may be made for any matters as to which such
person has been finally adjudged to be liable to the Company or for amounts
paid in settlement to the Company unless and only to the extent that a court of
competent jurisdiction determines that, in view of all of the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses as the court deems proper. Whether these standards are met will be
determined by the stockholders or the Board by majority vote of a quorum
consisting of directors not party to the act, suit or proceeding or by
independent legal counsel selected by the Board. The Articles and Bylaws also
provide that the Company must pay an indemnitee's expenses as they are incurred
upon an undertaking by such person to repay such amounts if it is ultimately
determined by a court of competent jurisdiction that such person is not
entitled to indemnity.
The Company maintains officers and directors liability
insurance against certain claims arising out of such persons' services to the
Company. The Company has entered into Indemnification Agreements with certain
of its officers and directors. These Indemnification Agreements provide for
indemnification of such officers or directors in the circumstances and subject
to the conditions set forth in the Company's Articles and Bylaws. The effect
of the Indemnification Agreements is to add to the indemnification rights
granted by the Articles and Bylaws as currently in effect a contractual right
to such indemnification which right cannot be terminated or altered by
amendment of the Articles or Bylaws.
In addition, certain officers, directors and employees of
First Mississippi, the Company's parent corporation, are entitled to indemnity
by First Mississippi under a resolution adopted by First Mississippi
stockholders at their Annual Meeting on November 7, 1985. The 1985 resolution
applies to persons serving at the request of First Mississippi in any capacity
with any other enterprise.
The 1985 First Mississippi resolution, which replaced a
similar resolution adopted in 1970, generally clarifies and broadens the
circumstances under which indemnity is provided by First Mississippi, and
extends indemnification beyond directors and officers, to employees. It
specifies standards of conduct required to be met to qualify for indemnity and
establishes procedures for determining whether these standards are met. These
standards require that the person to be indemnified either: (a) be wholly
successful, on the merits or otherwise, in any action or proceeding against
such person or (b) otherwise establish that such person acted in good faith and
in a manner such person reasonably believed to be in, or not opposed to, the
best interests of First Mississippi, and in the case of any criminal action or
proceeding, has no reasonable cause to believe that the conduct was unlawful.
Whether these standards are met will be determined by those directors or
stockholders not involved in the matter at issue or by special legal counsel
selected by the directors. In the case of any action or suit by or in the
right of First Mississippi, any person finally adjudged liable for gross
negligence or willful misconduct in performing duties for First Mississippi
will not be entitled to indemnification unless a court determines that
indemnification is proper under the circumstances. Advancement of expenses
will be allowed upon receipt of an undertaking to repay should it ultimately be
determined that an individual is not entitled to indemnity.
-10-
11
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Articles IV, XIII and XIV of the Company's Articles of Incorporation
were included in Exhibit 3(a) of the Company's Annual Report on Form
10-K for the fiscal year ending June 30, 1991, and are incorporated
herein by reference.
4.2. Company Resolutions authorizing the Company's 1994-A Series
Convertible Preferred Stock, effective November 3, 1994.
4.3 Articles II and V of the Company's Bylaws, as amended, were included
in Exhibit 3(b) to the Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1990, and are incorporated herein by
reference.
4.4 Indenture, dated as of November 3, 1994, between the Company and
Deposit Guaranty National Bank, as Trustee, relating to the Company's
1994-A Series Convertible Subordinated Debentures, including the Form
of such Debentures.
4.6 Rights Agreement, dated as of June 13, 1990, between FirstMiss Gold
Inc. and Ameritrust Company National Association, including Form of
Rights Certificate (Exhibit A), Form of Summary of Rights (Exhibit B)
and the Board Resolutions adopted on June 13, 1990 authorizing the
Rights Agreement and the Rights (Exhibit C), was filed as Exhibit 1 to
the Company's Current Report on Form 8-K, dated June 13, 1990, and is
incorporated herein by reference.
5.1 Opinion of J. Steve Chustz as to legality of securities being
registered.
24.1 Consent of J. Steve Chustz is contained within the opinion of counsel
filed as Exhibit 5.1.
24.2 Consent of KPMG Peat Marwick LLP.
Item 9. 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;
-11-
12
(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 registration statement is on Form S-3, Form S-8 or Form F-3
and the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to
the Commission by the 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.
(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, 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.
(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 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.
-12-
13
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 Reno, State of Nevada, on the 10th day of
February, 1995.
FIRSTMISS GOLD INC.
BY: /s/ G. W. Thompson
-------------------------------
G. W. Thompson
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
SIGNATURE TITLE DATE
--------- ----- ----
/s/ G. W. Thompson President, Chief Executive February 10, 1995
- ------------------------- Executive Officer & Director
G. W. Thompson
/s/ Roger D. Palmer Assistant Controller February 10, 1995
- ------------------------- (Principal Financial Officer
Roger D. Palmer & Principal Accounting Officer
/s/ J. Kelley Williams Director and Chairman of February 10, 1995
- ------------------------- Board of Directors
J. Kelley Williams
/s/ Cecil Alvarez Director February 10, 1995
- -------------------------
Cecil Alvarez
/s/ Robert C. Horton Director February 10, 1995
- -------------------------
Robert C. Horton
/s/ Peter Ingersoll Director February 10, 1995
- -------------------------
Peter Ingersoll
/s/ Charles P. Moreton Director February 10, 1995
- -------------------------
Charles P. Moreton
/s/ Paul W. Murrill Director February 10, 1995
- -------------------------
Paul W. Murrill
/s/ R. Michael Summerford Director February 10, 1995
- -------------------------
R. Michael Summerford
-13-
14
EXHIBIT INDEX
EXHIBITS
4.1 Articles IV, XIII and XIV of the Company's Articles of Incorporation
were included in Exhibit 3(a) of the Company's Annual Report on Form
10-K for the fiscal year ending June 30, 1991, and are incorporated
herein by reference.
4.2. Company Resolutions authorizing the Company's 1994-A Series
Convertible Preferred Stock, effective November 3, 1994.
4.3 Articles II and V of the Company's Bylaws, as amended, were included
in Exhibit 3(b) to the Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1990, and are incorporated herein by
reference.
4.4 Indenture, dated as of November 3, 1994, between the Company and
Deposit Guaranty National Bank, as Trustee, relating to the Company's
1994-A Series Convertible Subordinated Debentures, including the Form
of such Debentures.
4.6 Rights Agreement, dated as of June 13, 1990, between FirstMiss Gold
Inc. and Ameritrust Company National Association, including Form of
Rights Certificate (Exhibit A), Form of Summary of Rights (Exhibit B)
and the Board Resolutions adopted on June 13, 1990 authorizing the
Rights Agreement and the Rights (Exhibit C), was filed as Exhibit 1 to
the Company's Current Report on Form 8-K, dated June 13, 1990, and is
incorporated herein by reference.
5.1 Opinion of J. Steve Chustz as to legality of securities being
registered.
24.1 Consent of J. Steve Chustz is contained within the opinion of counsel
filed as Exhibit 5.1.
24.2 Consent of KPMG Peat Marwick LLP.