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As filed with the Securities and Exchange Commission on June __, 1997
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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GETCHELL GOLD CORPORATION
(Exact name of registrant on Form S-3 as specified in its charter)
DELAWARE 64-0748908
(State or Other Jurisdiction 5460 South Quebec Street, Suite 240 (I.R.S. Employer
of Incorporation) Englewood, Colorado 80111 Identification Number)
(303) 771-9000
(Address, including ZIP code, and telephone number, including area code, of
registrant's principal executive offices)
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Donald S. Robson
Vice President and Chief Financial Officer
Getchell Gold Corporation
5460 South Quebec Street, Suite 240
Englewood, Colorado 80111
(303) 771-9000
(Name, address, including ZIP code, and telephone number,
including area code, of agent for service)
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Copies to:
Tad J. Freese
Latham & Watkins
505 Montgomery Street, Suite 1900
San Francisco, California 94111-2562
(415) 391-0600
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after the effective date of this Registration Statement, as
determined by the Registrant.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
======================================================================================================================
Proposed Maximum Amount of
Title of Each Class of Aggregate Offering Registration
Securities to be Registered Price(1)(2) Fee(3)
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Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Preferred Stock, $.0001 par value . . . . . . . . . . . . . . . . . . . . . . . .
Common Stock, $.0001 par value (4) . . . . . . . . . . . . . . . . . . . . . . .
Equity Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Debt Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $300,000,000 $89,449
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(1) Estimated solely for purposes of calculating the registration fee, which
is calculated in accordance with Rule 457(o).
(2) Not specified as to each class of securities to be registered hereunder
pursuant to General Instruction II(D) to Form S-3 under the Securities
Act of 1933.
(3) Pursuant to Rule 429(b) the registration fee hereunder is offset by the
fee of $1,461 previously calculated and paid in connection with the
registration of $4,257,500 in securities on Registration Statement No.
33-62449.
(4) Each share of Common Stock includes one common share purchase Right
under the Company's Amended and Restated Rights Agreement dated as of
December 31, 1996 between the Registrant and Harris Trust and Savings
Bank, as Rights Agent.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, THE PROSPECTUS
INCLUDED IN THIS REGISTRATION STATEMENT IS A COMBINED PROSPECTUS WHICH RELATES
TO REGISTRATION STATEMENT NO. 33-62449, AS AMENDED, PREVIOUSLY FILED BY THE
COMPANY ON FORM S-3. THIS REGISTRATION STATEMENT ALSO CONSTITUTES
POST-EFFECTIVE AMENDMENT NO. 2 WITH RESPECT TO REGISTRATION STATEMENT NO.
33-62449, AS AMENDED, PURSUANT TO WHICH $4,237,500 IN SECURITIES REMAIN TO BE
ISSUED.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF ANY OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF
ANY SUCH STATE.
PROSPECTUS
SUBJECT TO COMPLETION, DATED JUNE 27, 1997
GETCHELL GOLD CORPORATION
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
EQUITY WARRANTS
DEBT WARRANTS
Getchell Gold Corporation, a Delaware corporation (the "Company"),
directly or through agents, dealers, or underwriters designated from time to
time, may offer, issue and sell, together or separately, up to $300,000,000 in
the aggregate of (a) secured or unsecured debt securities (the "Debt
Securities") of the Company, in one or more series, which may be either senior
debt securities (the "Senior Debt Securities"), senior subordinated debt
securities (the "Senior Subordinated Debt Securities") or subordinated debt
securities (the "Subordinated Debt Securities"), (b) shares of preferred stock
of the Company, par value $.0001 per share (the "Preferred Stock"), in one or
more series, (c) shares of common stock of the Company, par value $.0001 per
share (the "Common Stock"), (d) warrants to purchase Common Stock or Preferred
Stock (the "Equity Warrants") or (e) warrants to purchase Debt Securities (the
"Debt Warrants" and together with the Equity Warrants, the "Warrants"), or any
combination of the foregoing, either individually or as units consisting of one
or more of the foregoing, each on terms to be determined at the time of sale.
The Debt Securities may be issued as exchangeable and/or convertible Debt
Securities exchangeable for or convertible into shares of Common Stock or
Preferred Stock. The Preferred Stock may also be exchangeable for and/or
convertible into shares of Common Stock or another series of Preferred Stock.
The Debt Securities, the Preferred Stock, the Common Stock and the Warrants are
collectively referred to herein as the "Securities." When a particular series
of Securities is offered, a supplement to this Prospectus (each a "Prospectus
Supplement") will be delivered with this Prospectus. The Prospectus Supplement
will set forth the terms of the offering and sale of the offered Securities.
SEE "RISK FACTORS" COMMENCING ON PAGE 3 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF SECURITIES.
Except as described more fully herein or as set forth in the
Prospectus Supplement relating to any offered Debt Securities, the Indenture
will not provide holders of Debt Securities protection in the event of a
highly-leveraged transaction, reorganization, restructuring, merger or similar
transaction involving the Company which could adversely affect holders of Debt
Securities. See "Description of Debt Securities -- Consolidation, Merger and
Sale of Assets."
The Company's Common Stock is traded on the American Stock Exchange
and The Toronto Stock Exchange under the symbol GGO. On June 26, 1997, the
last reported sale price of the Common Stock as reported by the American Stock
Exchange was $35 1/4 per share. The Company has not yet determined whether
any of the Debt Securities, Preferred Stock or Warrants offered hereby will be
listed on any exchange or over-the-counter market. If the Company decides to
seek listing of any such Securities, the Prospectus Supplement relating thereto
will disclose such exchange or market.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
FEDERAL OFFENSE.
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The Securities may be sold directly by the Company, through agents
designated from time to time or to or through underwriters or dealers. The
Company reserves the sole right to accept, and together with its agents, from
time to time, to reject in whole or in part any proposed purchase of Securities
to be made directly or through agents. See "Plan of Distribution." If any
such agents or underwriters are involved in the sale of any Securities, the
names of such agents or underwriters and any applicable fees, commissions or
discounts will be set forth in the applicable Prospectus Supplement.
This Prospectus may not be used to consummate sales of Securities
unless accompanied by the applicable Prospectus Supplement.
The date of this Prospectus is___________________, 1997.
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Certain persons participating in this offering may engage in
transactions that stabilize, maintain or otherwise affect the price of the
Securities. Specifically, the Underwriters may overallot in connection with
the offering and may bid for and purchase securities in the open market. For a
description of these activities, see "Plan of Distribution."
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus contains forward-looking statements within the meaning
of Section 27A of the Securities Act and Section 21E of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"). The Company's actual results
could differ materially from those anticipated in these forward-looking
statements as a result of various factors including those set forth under "Risk
Factors" included in the Company's most recently incorporated Annual Report on
Form 10-K or Quarterly Report on Form 10-Q and elsewhere in this Prospectus.
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 (together with all
amendments and exhibits thereto, the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
Securities offered hereby. This Prospectus does not contain all of the
information set forth in the Registration Statement, part of which has been
omitted in accordance with the rules and regulations of the Commission. For
further information about the Company and the Securities offered hereby,
reference is made to the Registration Statement, including the exhibits filed
as a part thereof and otherwise incorporated therein. Statements made in this
Prospectus as to the contents of any agreement or other document referred to
herein are qualified by reference to the copy of such agreement or other
document filed as an exhibit to the Registration Statement or such other
document, each such statement being qualified in its entirety by such
reference.
The Company is subject to the informational requirements of the
Exchange Act, and, in accordance therewith, files periodic reports, proxy
statements and other information with the Commission. The Registration
Statement, including the exhibits thereto, as well as such reports and other
information filed by the Company with the Commission, can be inspected, without
charge, and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Room 1024, Washington D.C., 20549 and at
the Commission's regional offices located at 7 World Trade Center, New York,
New York 10048 and 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. Copies of such materials can be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. Reports and other information concerning the Company can
also be inspected at the offices of the American Stock Exchange, 86 Trinity
Place, New York, New York, 10006. The Commission also maintains a site on the
World Wide Web at http://www.sec.gov, that contains reports, proxy statements
and other information regarding registrants that file electronically with the
Commission, and certain of the Company's filings are available at such Web
site.
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INFORMATION INCORPORATED BY REFERENCE
The following documents filed by the Company with the Commission
pursuant to the Exchange Act are incorporated by reference in this Prospectus:
(1) the Company's Quarterly Report on Form 10-Q for the quarter ended March 31,
1997, (2) the Company's Annual Report on Form 10-K for the year ended December
31, 1996, as amended, (3) the description of the Company's Common Stock on Form
8-A filed with the Commission on June 19, 1996 and (4) all other documents
subsequently filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act after the date of this Prospectus and before the termination of
the offering, which shall be deemed to be a part hereof from the date of filing
of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is incorporated or
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon request, a copy of
any documents incorporated into this Prospectus by reference (other than
exhibits incorporated by reference into such document). Requests for documents
should be submitted to Getchell Gold Corporation, 5460 South Quebec Street,
Suite 240, Englewood, Colorado 80111, Attention: Secretary (telephone (303)
771-9000). The information relating to the Company contained in this
Prospectus does not purport to be comprehensive and should be read together
with the information contained in the documents incorporated or deemed to be
incorporated by reference herein.
THE COMPANY
The Company is engaged in exploration, development, mining and
processing of gold ore from the 33,000 acre "Getchell Property" located in
north central Nevada.
The Getchell Property is located in the Potosi Mining District on the
eastern side of the Osgood Mountain Range 35 miles northeast of the town of
Winnemucca, Nevada. Access to the property is via Nevada State Highway 18 and
an all- weather gravel road maintained jointly by the Company and various
competitors who use the same access. The Company's operations on the Getchell
Property include a pressure oxidation (autoclave) mill facility, a heap leach
facility and an underground mine known as the "Getchell Underground" mine.
Prior to July 1995, and for a nine-month period during 1996, operations also
included open pit mining of oxide and sulfide ores. During the twelve-month
period ended December 31, 1996, approximately 171,343 ounces of gold were
produced and sold. A second underground mine on the Getchell Property known as
the "Turquoise Ridge" mine is currently under development.
The Company was incorporated in Nevada in August 1987 by ChemFirst
Inc. ("ChemFirst," formerly known as First Mississippi Corporation), a
Mississippi corporation, for the purpose of financing, developing and operating
the Getchell Property and for conducting minerals exploration. In June 1988,
the Company sold 3,250,000 shares of its common stock in an initial public
offering. Following the offering, ChemFirst held approximately 81% of the
Company's stock. In October 1995 ChemFirst distributed its 14,750,000 shares
of the Company's stock to ChemFirst's shareholders in a tax free distribution.
In June 1996, the Company changed its state of incorporation to Delaware.
The Company's principal executive offices are located at 5460 South
Quebec Street, Suite 240, Englewood, Colorado 80111, and its telephone number
is (303) 771-9000.
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RISK FACTORS
In addition to the other information in this Prospectus, prospective
purchasers of the Securities offered hereby should carefully consider the risk
factors set forth under the heading "Risk Factors" in "Management's Discussion
and Analysis of Financial Condition and Results of Operations" included in the
Company's most recently incorporated Annual Report on Form 10-K or Quarterly
Report on Form 10-Q. See "Information Incorporated by Reference."
USE OF PROCEEDS
Unless otherwise indicated in a Prospectus Supplement, the Company
anticipates that any net proceeds would be used for general corporate purposes,
which may include but are not limited to exploration on the Getchell Property,
working capital, capital expenditures, repayment of indebtedness and
acquisitions. When a particular series of Securities is offered, the
Prospectus Supplement relating thereto will set forth the Company's intended
use for the net proceeds received from the sale of such Securities. Pending
the application of the net proceeds, the Company expects to invest such
proceeds in short-term, interest-bearing instruments or other investment-grade
securities.
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RATIOS OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
The following table sets forth the unaudited consolidated ratios of
earnings to fixed charges and earnings to fixed charges and preferred stock
dividends for the Company for the periods indicated.
Quarter ended Year ended Six-month period ended Years ended
March 31, 1997 Dec. 31, 1996* Dec. 31, 1995* June 30,
-------------- --------------- ---------------------- --------------------------------
1995 1994 1993 1992
------ ------ ------ ------
Ratio of ** ** ** ** 3.7 ** 3.6
earnings
to fixed
charges
Ratio of ** ** ** ** 3.7 ** 3.6
earnings
to fixed
charges
and
preferred
stock
dividends
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* On September 24, 1995, the Company changed its fiscal year end to
December 31 from June 30.
** For the periods presented below, earnings were insufficient to
cover fixed charges in the amounts set forth below. Therefore, no ratios are
provided for those periods.
Quarter ended Year ended Six-month period ended Years ended
March 31, 1997 Dec. 31, 1996 Dec. 31, 1995 June 30,
-------------- --------------- ---------------------- -------------------------------
1995 1993
---- ----
Coverage $8,362,940 $16,098,998 $6,313,000 $19,088,000 $3,129,000
Deficiency
For the purpose of calculating the ratio of earnings to fixed charges
and the ratio of earnings to fixed charges and preferred stock dividends,
earnings consist of income before income taxes and fixed charges (exclusive of
preferred stock dividends). For the purpose of calculating both ratios, fixed
charges include interest expense, capitalized interest and that portion of
rentals representative of an interest factor (estimated to be one third of rent
expense). Because the Company did not pay any preferred stock dividends during
the fiscal years ended June 30, 1995, 1994, 1993 and 1992, the six months ended
December 31, 1995, or the year ended December 31, 1996, the ratios are
identical.
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GENERAL DESCRIPTION OF SECURITIES
The Company directly or through agents, dealers or underwriters
designated from time to time, may offer, issue and sell, together or
separately, up to $300,000,000 in the aggregate of (a) secured or unsecured
debt securities (the "Debt Securities") of the Company, in one or more series,
which may be either senior debt securities (the "Senior Debt Securities"),
senior subordinated debt securities (the "Senior Subordinated Debt Securities")
or subordinated debt securities (the "Subordinated Debt Securities"), (b)
shares of preferred stock of the Company, par value $.0001 per share (the
"Preferred Stock"), in one or more series, (c) shares of common stock of the
Company, par value $.0001 per share (the "Common Stock"), (d) warrants to
purchase Common Stock or Preferred Stock (the "Equity Warrants") or (e)
warrants to purchase Debt Securities (the "Debt Warrants" and together with the
Equity Warrants, the "Warrants"), or any combination of the foregoing, either
individually or as units consisting of one or more of the foregoing, each on
terms to be determined at the time of sale. The Debt Securities may be issued
as exchangeable and/or convertible Debt Securities exchangeable for or
convertible into shares of Common Stock or Preferred Stock. The Preferred
Stock may also be exchangeable for and/or convertible into shares of Common
Stock or another series of Preferred Stock. The Debt Securities, the Preferred
Stock, the Common Stock and the Warrants are collectively referred to herein as
the "Securities." When a particular series of Securities is offered, a
Prospectus Supplement will be delivered with this Prospectus. The Prospectus
Supplement will set forth the terms of the offering and sale of the offered
Securities.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and
provisions of the Debt Securities to which any Prospectus Supplement may
relate. The particular terms of the Debt Securities offered by any Prospectus
Supplement and the extent, if any, to which such general provisions do not
apply to the Debt Securities so offered will be described in the Prospectus
Supplement relating to such Debt Securities.
Debt Securities may be issued from time to time in series under an
indenture, and one or more indentures supplemental thereto (collectively, the
"Indenture"), between the Company and a trustee to be identified in the
applicable Prospectus Supplement (the "Trustee"). The terms of the Debt
Securities will include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939 (the "TIA") as in
effect on the date of the Indenture. The Debt Securities will be subject to
all such terms, and potential investors of the Debt Securities are referred to
the Indenture and the TIA for a statement thereof. The following summary of
certain provisions of the Indenture does not purport to be complete and is
qualified in its entirety by reference to the Indenture, including the
definitions therein of certain terms used below. As used under this caption,
unless the context otherwise requires, "Offered Debt Securities" shall mean the
Debt Securities offered by this Prospectus and the accompanying Prospectus
Supplement.
GENERAL
The Indenture will provide for the issuance of Debt Securities in
series and will not limit the principal amount of Debt Securities which may be
issued thereunder. In addition, except as may be provided in the Prospectus
Supplement relating to such Debt Securities, the Indenture will not limit the
amount of additional indebtedness the Company may incur.
The applicable Prospectus Supplement or Prospectus Supplements will
describe the following terms of the series of Offered Debt Securities in
respect of which this Prospectus is being delivered: (1) the title of the
Offered Debt Securities; (2) whether the Offered Debt Securities are Senior
Debt Securities, Senior Subordinated Debt Securities or Subordinated Debt
Securities or any combination
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thereof; (3) any limit upon the aggregate principal amount of the Offered Debt
Securities; (4) the date or dates on which the principal of the Offered Debt
Securities is payable; (5) the rate or rates (which may be fixed or variable)
at which the Offered Debt Securities will bear interest, if any, or the manner
in which such rate or rates are determined; (6) the date or dates from which
any such interest will accrue, the interest payment dates on which any such
interest on the Offered Debt Securities will be payable and the record dates
for the determination of holders to whom interest is payable; (7) the place or
places where the principal of and any interest on the Offered Debt Securities
will be payable; (8) the obligation of the Company, if any, to redeem,
repurchase or repay the Offered Debt Securities in whole or in part pursuant to
any sinking fund or analogous provisions or at the option of the holders and
the price or prices at which and the period and periods within which and the
terms and conditions upon which the Offered Debt Securities shall be redeemed,
repurchased or repaid pursuant to such obligation; (9) the denominations in
which any Offered Debt Securities will be issuable, if other than denominations
of U.S. $1,000 and any integral multiple thereof; (10) if other than the
principal amount thereof, the portion of the principal amount of the Offered
Debt Securities of the series which will be payable upon declaration of the
acceleration of the maturity thereof; (11) any addition to or change in the
covenants which apply to the Offered Debt Securities; (12) any Events of
Default with respect to the Offered Debt Securities, if not otherwise set forth
under "Events of Default"; (13) whether the Offered Debt Securities will be
issued in whole or in part in global form, the terms and conditions, if any,
upon which such global Offered Debt Securities may be exchanged in whole or in
part for other individual securities, and the depositary for the Offered Debt
Securities; (14) the terms and conditions, if any, upon which the Offered Debt
Securities shall be exchanged for or converted into other securities or
property; (15) the nature and terms of the security for any secured Offered
Debt Securities; and (16) any other terms of the Offered Debt Securities which
terms shall not be inconsistent with the provisions of the Indenture.
Debt Securities may be issued at a discount from their principal
amount ("Original Issue Discount Securities"). Federal income tax
considerations and other special considerations applicable to any such Original
Issue Discount Securities will be described in the applicable Prospectus
Supplement.
Debt Securities may be issued in bearer form, with or without coupons.
Federal income tax considerations and other special considerations applicable
to bearer securities will be described in the applicable Prospectus Supplement.
STATUS OF DEBT SECURITIES
The Senior Debt Securities will be unsubordinated obligations of the
Company and will rank on a parity with all other unsecured and unsubordinated
indebtedness of the Company.
The obligations of the Company pursuant to Senior Subordinated Debt
Securities will be subordinate in right of payment, to the extent and in the
manner set forth in the Indenture, to all Senior Indebtedness of the Company.
Except to the extent set forth in the Prospectus Supplement, "Senior
Indebtedness" of the Company is defined to mean the principal of, and premium,
if any, and any interest (including interest accruing subsequent to the
commencement of any proceeding for the bankruptcy or reorganization of the
Company under any applicable bankruptcy, insolvency or similar law now or
hereafter in effect) on (a) all indebtedness of the Company whether heretofore
or hereafter incurred (i) for borrowed money or (ii) in connection with the
acquisition by the Company or a subsidiary of assets other than in the ordinary
course of business, for the payment of which the Company is liable directly or
indirectly by guarantee, letter of credit, obligation to purchase or acquire or
otherwise, or the payment of which is secured by a lien, charge or encumbrance
on assets acquired by the Company, (b) amendments, modifications, renewals,
extensions and deferrals of any such indebtedness, and (c) any indebtedness
issued in exchange for any such indebtedness (clauses (a) through (c) hereof
being collectively referred to herein as "Debt"); provided, however, that the
following will not constitute Senior Indebtedness with respect to Senior
Subordinated Debt Securities: (1) any Debt as to which, in the instrument
evidencing such Debt or pursuant to which such Debt was issued, it is expressly
provided
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that such Debt is subordinate in right of payment to all Debt of the Company
not expressly subordinated to such Debt; (2) any Debt which by its terms refers
explicitly to the Senior Subordinated Debt Securities and states that such Debt
shall not be senior in right of payment; and (3) any Debt of the Company in
respect of the Senior Subordinated Debt Securities or any Subordinated Debt
Securities. The Company will not issue Debt which is subordinated in right of
payment to any other Debt of the Company and which is not expressly made pari
passu with, or subordinate and junior in right of payment to, the Senior
Subordinated Debt Securities.
The obligations of the Company pursuant to Subordinated Debt
Securities will be subordinate in right of payment to all Senior Indebtedness
of the Company and to any Senior Subordinated Debt Securities; provided,
however, that the following will not constitute Senior Indebtedness with
respect to Subordinated Debt Securities: (1) any Debt as to which, in the
instrument evidencing such Debt or pursuant to which such Debt was issued, it
is expressly provided that such Debt is subordinate in right of payment to all
Debt of the Company not expressly subordinated to such Debt; and (2) any Debt
of the Company in respect of Subordinated Debt Securities and any Debt which by
its terms refers explicitly to the Subordinated Debt Securities and states that
such Debt shall not be senior in right of payment.
No payment pursuant to the Senior Subordinated Debt Securities or the
Subordinated Debt Securities, as the case may be, may be made unless all
amounts of principal, premium, if any, and interest then due on all applicable
Senior Indebtedness of the Company shall have been paid in full or if there
shall have occurred and be continuing beyond any applicable grace period a
default in any payment with respect to any such Senior Indebtedness, or if
there shall have occurred any event of default with respect to any such Senior
Indebtedness permitting the holders thereof to accelerate the maturity thereof,
or if any judicial proceeding shall be pending with respect to any such
default. However, the Company may make payments pursuant to the Senior
Subordinated Debt Securities or the Subordinated Debt Securities, as the case
may be, if a default in payment or an event of default with respect to the
Senior Indebtedness permitting the holder thereof to accelerate the maturity
thereof has occurred and is continuing and judicial proceedings with respect
thereto have not been commenced within a certain number of days of such default
in payment or event of default. Upon any distribution of the assets of the
Company upon dissolution, winding-up, liquidation or reorganization, the
holders of Senior Indebtedness of the Company will be entitled to receive
payment in full of principal, premium, if any, and interest (including interest
accruing subsequent to the commencement of any proceeding for the bankruptcy or
reorganization of the Company under any applicable bankruptcy, insolvency or
similar law now or hereafter in effect) before any payment is made on the
Senior Subordinated Debt Securities or Subordinated Debt Securities, as
applicable. By reason of such subordination, in the event of insolvency of the
Company, holders of Senior Indebtedness of the Company may receive more,
ratably, and holders of the Senior Subordinated Debt Securities or Subordinated
Debt Securities, as applicable, having a claim pursuant to the Senior
Subordinated Debt Securities or Subordinated Debt Securities, as applicable,
may receive less, ratably, than the other creditors of the Company. Such
subordination will not prevent the occurrence of any event of default (an
"Event of Default") in respect of the Senior Subordinated Debt Securities or
the Subordinated Debt Securities.
If the Company offers Debt Securities, the applicable Prospectus
Supplement will set forth the aggregate amount of outstanding indebtedness, if
any, as of the most recent practicable date that by the terms of such Debt
Securities would be senior to such Debt Securities. The applicable Prospectus
Supplement will also set forth any limitation on the issuance by the Company of
any additional senior indebtedness.
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CONVERSION RIGHTS
The terms, if any, on which Debt Securities of a series may be
exchanged for or converted into shares of Common Stock or Preferred Stock will
be set forth in the Prospectus Supplement relating thereto.
EXCHANGE, REGISTRATION, TRANSFER AND PAYMENT
Unless otherwise specified in the applicable Prospectus Supplement,
payment of principal, premium, if any, and any interest on the Debt Securities
will be payable, and the exchange of and the transfer of Debt Securities will
be registerable, at the office of the Trustee or at any other office or agency
maintained by the Company for such purpose subject to the limitations of the
Indenture. Unless otherwise indicated in the applicable Prospectus Supplement,
the Debt Securities will be issued in denominations of U.S. $1,000 or integral
multiples thereof. No service charge will be made for any registration of
transfer or exchange of the Debt Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
imposed in connection therewith.
BOOK-ENTRY DEBT SECURITIES
The Debt Securities of a series may be issued in the form of one or
more Global Securities (the "Global Securities") that will be deposited with a
depositary or its nominee identified in the applicable Prospectus Supplement.
In such a case, one or more Global Securities will be issued in a denomination
or aggregate denominations equal to the portion of the aggregate principal
amount of outstanding Debt Securities of the series to be represented by such
Global Security or Securities. Each Global Security will be deposited with
such depositary or nominee or a custodian therefor and will bear a legend
regarding the restrictions on exchanges and registration of transfer thereof
referred to below and any such other matters as may be provided for pursuant to
the applicable Indenture.
Notwithstanding any provision of the Indenture or any Debt Security
described herein, no Global Security may be transferred to, or registered or
exchanged for Debt Securities registered in the name of, any person other than
the depositary for such Global Security or any nominee of such depositary, and
no such transfer may be registered, unless (i) the depositary has notified the
Company that it is unwilling or unable to continue as depositary for such
Global Security or has ceased to be qualified to act as such as required by the
applicable Indenture, (ii) the Company executes and delivers to the Trustee an
order that such Global Security shall be so transferable, registrable and
exchangeable, and such transfers shall be registrable, or (iii) there shall
exist such circumstances, if any, as may be described in the applicable
Prospectus Supplement. All Debt Securities issued in exchange for a Global
Security or any portion thereof will be registered in such names as the
depositary may direct.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Global Security
will be described in the applicable Prospectus Supplement. The Company expects
that the following provisions will apply to depositary arrangements.
Unless otherwise specified in the applicable Prospectus Supplement,
Debt Securities which are to be represented by a Global Security to be
deposited with or on behalf of a depositary will be represented by a Global
Security registered in the name of such depositary or its nominee. Upon the
issuance of such Global Security and the deposit of such Global Security with
or on behalf of the depositary for such Global Security, the depositary will
credit, on its book-entry registration and transfer system, the respective
principal amounts of the Debt Securities represented by such Global Security to
the accounts of institutions that have accounts with such depositary or its
nominee ("participants"). The accounts to be credited will be designated by
the underwriters or agents of such Debt Securities or by the Company, if such
Debt Securities are offered and sold directly by the Company. Ownership of
beneficial interests in such Global Security will be limited to participants or
persons that may hold interests through participants. Ownership of beneficial
interests by participants in such Global Security
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will be shown on, and the transfer of that ownership interest will be effected
only through, records maintained by the depositary or its nominee for such
Global Security. Ownership of beneficial interests in such Global Security by
persons that hold through participants will be shown on, and the transfer of
that ownership interest within such participant will be effected only through,
records maintained by such participant. The laws of some jurisdictions require
that certain purchasers of securities take physical delivery of such securities
in certificated form. The foregoing limitations and such laws may impair the
ability to transfer beneficial interests in such Global Securities.
So long as the depositary for a Global Security, or its nominee, is
the registered owner of such Global Security, such depositary or such nominee,
as the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture. Unless otherwise specified in the applicable Prospectus Supplement,
owners of beneficial interests in such Global Security will not be entitled to
have Debt Securities of the series represented by such Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of Debt Securities of such series in certified form and will not be
considered the holders thereof for any purposes under the Indenture.
Accordingly, each person owning a beneficial interest in such Global Security
must rely on the procedures of the depositary and, if such person is not a
participant, on the procedures of the participant through which such person
owns its interest, to exercise any rights of a holder under the Indenture. If
the Company requests any action of holders or an owner of a beneficial interest
in such Global Security desires to give any notice or take any action a holder
is entitled to give or take under the Indenture, the depositary will authorize
the participants to give such notice or take such action, and participants
would authorize beneficial owners owning through such participants to give such
notice or take such action or would otherwise act upon the instructions of
beneficial owners owning through them.
Notwithstanding any other provisions to the contrary in the Indenture,
the rights of the beneficial owners of the Debt Securities to receive payment
of the principal and premium, if any, of and interest on such Debt Securities,
on or after the respective due dates expressed in such Debt Securities, or to
institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of the
beneficial owners.
Principal of and any interest on a Global Security will be payable in
the manner described in the applicable Prospectus Supplement.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may not consolidate with or merge with or into, or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially
all of its property or assets to any person unless (a) the Company is the
surviving corporation or the entity or the person formed by or surviving any
such consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made is a corporation organized and existing under the laws of the United
States, any state thereof or the District of Columbia; (b) the entity or person
formed by or surviving any such consolidation or merger (if other than the
Company) or the entity or person to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made assumes all the
obligations of the Company under the Debt Securities and the Indenture; and (c)
immediately prior to and after the transaction no Default or Event of Default
exists.
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Except as may be described in a Prospectus Supplement applicable to a
particular series of Debt Securities, there are no covenants or other
provisions in the Indenture providing for a put or increased interest or
otherwise that would afford holders of Debt Securities additional protection in
the event of a recapitalization transaction, a change of control of the Company
or a highly leveraged transaction.
COVENANTS OF THE COMPANY
Unless otherwise indicated in this Prospectus or a Prospectus
Supplement, the Debt Securities will not have the benefit of any covenants that
limit or restrict the Company's business or operations, the pledging of the
Company's assets or the incurrence of indebtedness by the Company.
The applicable Prospectus Supplement will describe any material
covenants in respect of a series of Offered Debt Securities. Other than the
covenants of the Company included in the Indenture as described above or as
described in the applicable Prospectus Supplement, the Indenture will not
provide holders of Debt Securities protection in the event of a
highly-leveraged transaction, reorganization, restructuring, merger or similar
transaction involving the Company which could adversely affect holders of Debt
Securities.
EVENTS OF DEFAULT
Unless otherwise specified in the applicable Prospectus Supplement,
the following will constitute Events of Default under the Indenture with
respect to Debt Securities of any series: (a) failure to pay principal of any
Debt Security of that series when due and payable at maturity, upon redemption
or otherwise; (b) failure to pay any interest on any Debt Security of that
series when due, and the Default continues for 30 days; (c) an Event of
Default, as defined in the Debt Securities of that series, occurs and is
continuing, or the Company fails to comply with any of its other agreements in
the Debt Securities of that series or in the Indenture with respect to that
series and the Default continues for the period and after the notice provided
therein (and described below); and (d) certain events of bankruptcy, insolvency
or reorganization. A Default under clause (c) above is not an Event of Default
with respect to a particular series of Securities until the Trustee or the
holders of at least 25% in principal amount of the then outstanding Securities
of that series notify the Company of the Default and the Company does not cure
the Default within 30 days after receipt of the notice. The notice must
specify the Default, demand that it be remedied and state that the notice is a
"Notice of Default."
If an Event of Default with respect to outstanding Debt Securities of
any series (other than an Event or Default relating to certain events of
bankruptcy, insolvency or reorganization) shall occur and be continuing, either
the Trustee or the holders of at least 25% in principal amount of the
outstanding Debt Securities of that series by notice, as provided in the
Indenture, may declare the unpaid principal amount (or, if the Debt Securities
of that series are Original Issue Discount Securities, such lesser amount as
may be specified in the terms of that series) of, and any accrued and unpaid
interest on, all Debt Securities of that series to be due and payable
immediately. However, at any time after a declaration of acceleration with
respect to Debt Securities of any series has been made, but before a judgment
or decree based on such acceleration has been obtained, the holders of a
majority in principal amount of the outstanding Debt Securities of that series
may, under certain circumstances, rescind and annul such acceleration. For
information as to waiver of defaults, see "Modification and Waiver" below.
The Indenture will provide that, subject to the duty of the Trustee
during an Event of Default to act with the required standard of care, the
Trustee will be under no obligation to exercise any of its rights or powers
under the applicable Indenture at the request or direction of any of the
holders, unless such holders shall have offered to the Trustee reasonable
security or indemnity. Subject to certain provisions, including those
requiring security or indemnification of the Trustee, the holders of a majority
in principal amount of the outstanding Debt Securities of any series will have
the right to direct the
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time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Debt Securities of that series.
The Company will be required to furnish to the Trustee under the
Indenture annually a statement as to the performance by the Company of its
obligations under that Indenture and as to any default in such performance.
MODIFICATION AND WAIVER
Subject to certain exceptions, the Company and the Trustee may amend
the Indenture or the Debt Securities with the written consent of the holders of
a majority in principal amount of the then outstanding Debt Securities of each
series affected by the amendment with each series voting as a separate class.
The holders of a majority in principal amount of the then outstanding Debt
Securities of any series may also waive compliance in a particular instance by
the Company with any provision of the Indenture with respect to the Debt
Securities of that series; provided, however, that without the consent of each
holder of Debt Securities affected, an amendment or waiver may not (i) reduce
the percentage of the principal amount of Debt Securities whose holders must
consent to an amendment or waiver; (ii) reduce the rate or change the time for
payment of interest on any Debt Security (including default interest); (iii)
reduce the principal of or premium, if any, or change the fixed maturity of any
Debt Security, or reduce the amount of, or postpone the date fixed for,
redemption or the payment of any sinking fund or analogous obligation with
respect thereto; (iv) make any Debt Security payable in money other than that
stated in the Debt Security; (v) make any change in the provisions concerning
waivers of Default or Events of Default by holders or the rights of holders to
recover the principal of or interest on any Debt Security; or (vi) waive a
default in the payment of the principal of, premium, if any, or interest on,
any Debt Security, except as otherwise provided in the Indenture. The Company
and the Trustee may amend the Indenture or the Debt Securities without notice
to or the consent of any holder of a Debt Security: (i) to cure any ambiguity,
defect or inconsistency; (ii) to comply with the Indenture's provisions with
respect to successor corporations; (iii) to comply with any requirements of the
Commission in connection with the qualification of the Indenture under the TIA;
(iv) to provide for Debt Securities in addition to or in place of certificated
Debt Securities; (v) to add to, change or eliminate any of the provisions of
the Indenture in respect of one of more series of Debt Securities, provided,
however, that any such addition, change or elimination (A) shall neither (1)
apply to any Debt Security of any series created prior to the execution of such
amendment and entitled to the benefit of such provision, nor (2) modify the
rights of a holder of any such Debt Security with respect to such provision, or
(B) shall become effective only when there is no outstanding Debt Security of
any series created prior to such amendment and entitled to the benefit of such
provision; (vi) to make any change that does not adversely affect in any
material respect the interest on any holder; or (vii) to establish additional
series of Debt Securities as permitted by the Indenture.
Subject to certain exceptions, the holders of a majority in principal
amount of the then outstanding Debt Securities of any series, by notice to the
Trustee, may waive an existing Default or Event of Default and its consequences
except a Default or Event of Default in the payment of the principal of or
interest on any Debt Security with respect to the Debt Securities of that
series.
TERMINATION OF THE COMPANY'S OBLIGATIONS UNDER THE DEBT SECURITIES AND THE
INDENTURE
Except as otherwise described below, the Company may terminate its
obligations under the Debt Securities and the Indenture with respect to the
Debt Securities if:
(a) all previously authenticated and delivered (other than
destroyed, lost or stolen Debt Securities which have been replaced or Debt
Securities which are paid or Debt Securities for whose payment money or
securities has theretofore been held in trust and thereafter repaid to the
Company) have been delivered to the Trustee for cancellation and the Company
has paid all sums payable by it under the Indenture; or
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(b) (1) the Debt Securities mature within one year; and
(2) the Company irrevocably deposits in trust with
the Trustee during such one-year period, under the terms of an irrevocable
trust agreement in form and substance satisfactory to the Trustee, as trust
funds solely for the benefit of the holders of Debt Securities for that
purpose, money or U.S. Government Obligations, or a combination thereof, with
the U.S. Government Obligations maturing as to principal and interest in such
amounts and at such times as are sufficient, without consideration of any
reinvestment of such interest, to pay principal of and interest on the Debt
Securities to maturity and to pay all other sums payable by it under the
Indenture; or
(c) (1) the Company irrevocably deposits in trust with
the Trustee under the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee, as trust funds solely for the benefit of
the holders of Debt Securities for that purpose, money or U.S. Government
Obligations, or a combination thereof, with the U.S. Government Obligations
maturing as to principal and interest in such amounts and at such times as are
sufficient, without consideration of any reinvestment of such interest, to pay
principal of and interest on the Debt Securities to maturity;
(2) the Company shall have delivered to the Trustee
(A) a ruling directed to the Trustee received from the Internal Revenue Service
to the effect that the holders of the Debt Securities will not recognize
income, gain or loss for federal income tax purposes as a result of the
Company's exercise of its option under this clause (c) and will be subject to
federal income tax on the same amount and in the same manner and at the same
times as would have been the case if such option had not been exercised, or (B)
an opinion of counsel to the same effect as the ruling described in subclause
(A) above accompanied by a ruling to that effect published by the Internal
Revenue Service, unless there has been a change in the applicable federal
income tax law since the date of the Indenture such that a ruling from the
Internal Revenue Service is no longer required;
(3) the Company has paid or caused to be paid all
sums then payable by the Company under the Indenture; and
(4) the Company has delivered to the Trustee an
officers' certificate and an opinion of counsel, each stating that all
conditions precedent provided for in this clause (c) relating to termination of
obligations of the Company have been complied with.
The Company's obligations under sections of the Indenture relating to
the registrar and the paying agent, their obligations, the maintenance of a
list of holders, transfers of Debt Securities, replacement of securities,
payment (together with payment obligations under the Debt Securities),
compensation and indemnity of the Trustee, replacement of the Trustee and
repayment to the Company of excess money held by the Trustee or the paying
agent, shall survive until the Debt Securities are no longer outstanding. If
the ruling from the Internal Revenue Service or opinion of counsel referred to
in clause (c)(2) above is based on or assumes that the Company's payment
obligations under the Indenture or its payment obligations under the Debt
Securities will continue (or is silent with respect thereto), then such
discharge shall constitute only a "covenant defeasance" and, consequently, the
Company shall remain liable for the payment of the Debt Securities. However,
if and when a ruling from the Internal Revenue Service or opinion of counsel
referred to in clause (c)(2) above is able to be provided specifically without
regard to, and not in reliance upon, the continuance of the Company's payment
obligations under the Indenture and its payment obligations under the Debt
Securities, then the Company's payment obligations under the Indenture and the
Debt Securities shall cease upon delivery to the Trustee of such ruling or
opinion of counsel and compliance with the other conditions precedent provided
for in clause (c) above relating to the satisfaction and discharge of the
Indenture. In such a case (a "legal defeasance") holders would be able to look
only to the trust fund for payment of principal or interest on the Debt
Securities.
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REGARDING THE TRUSTEES
The Trustee with respect to any series of Debt Securities will be
identified in the Prospectus Supplement relating to such Debt Securities. The
Indenture and provisions of the TIA incorporated by reference therein, contain
certain limitations on the rights of the Trustee, should it become a creditor
of the Company, to obtain payment of claims in certain cases, or to realize on
certain property received in respect of any such claim, as security or
otherwise. The Trustee and its affiliates engage in, and will be permitted to
continue to engage in, other transactions with the Company and its affiliates;
provided, however, that if it acquires any conflicting interest (as defined in
the TIA), it must eliminate such conflict or resign.
The holders of a majority in principal amount of the then outstanding
Debt Securities of any series will have the right to direct the time, method
and place of conducting any proceeding for exercising any remedy available to
the Trustee. The TIA and the Indenture provide that in case an Event of
Default shall occur (and be continuing), the Trustee will be required, in the
exercise of its rights and powers, to use the degree of care and skill of a
prudent man in the conduct of his own affairs. Subject to such provision, the
Trustee will be under no obligation to exercise any of its rights or powers
under the Indenture at the request of any of the holders of the Debt Securities
issued thereunder, unless they have offered to the Trustee indemnity
satisfactory to it.
DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the Preferred Stock sets
forth certain general terms and provisions of the Preferred Stock to which any
Prospectus Supplement may relate. Certain other terms of any series of the
Preferred Stock offered by any Prospectus Supplement will be described in such
Prospectus Supplement. The description of certain provisions of the Preferred
Stock set forth below and in any Prospectus Supplement does not purport to be
complete and is subject to and qualified in its entirety by reference to the
Company's Articles of Incorporation, as amended (the "Articles of
Incorporation"), and the certificate of designation (a "Certificate of
Designation") relating to each series of the Preferred Stock which will be
filed with the Commission and incorporated by reference in the Registration
Statement of which this Prospectus is a part at or prior to the time of the
issuance of such series of the Preferred Stock. As of the date of this
Prospectus, the Company had no shares of Preferred Stock outstanding.
GENERAL
The Company has the authority to issue up to 10,000,000 shares of
preferred stock, $.0001 par value per share ("preferred stock of the Company,"
which term, as used herein, includes the Preferred Stock offered hereby).
Under the Certificate of Incorporation, the Board of Directors of the Company
is authorized without further stockholder action to designate and provide for
the issuance of such shares of preferred stock of the Company, in one or more
series, with such voting powers, full or limited, and with such designations,
preferences and relative participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as shall be stated in the
resolution or resolutions providing for the issue of a series of such stock
adopted, at any time or from time to time, by the Board of Directors of the
Company (as used herein the term "Board of Directors of the Company" includes
any duly authorized committee thereof).
The Preferred Stock shall have the dividend, liquidation, redemption
and voting rights set forth below unless otherwise provided in a Prospectus
Supplement relating to a particular series of the Preferred Stock. Reference
is made to the Prospectus Supplement relating to the particular series of the
Preferred Stock offered thereby for specific terms, including: (i) the
designation and stated value per share of such Preferred Stock and the number
of shares offered; (ii) the amount of liquidation preference per share; (iii)
the initial public offering price at which such Preferred Stock will be issued;
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(iv) the dividend rate (or method of calculation), the dates on which dividends
shall be payable and the dates from which dividends shall commence to cumulate,
if any; (v) any redemption or sinking fund provisions; (vi) any conversion or
exchange rights; and (vii) any additional voting, dividend, liquidation,
redemption, sinking fund and other rights, preferences, privileges, limitations
and restrictions.
The Preferred Stock will, when issued, be fully paid and nonassessable
and will have no preemptive rights. The rights of the holders of each series
of the Preferred Stock will be subordinate to those of the Company's general
creditors.
DIVIDEND RIGHTS
Holders of the Preferred Stock of each series will be entitled to
receive, when, as and if declared by the Board of Directors of the Company, out
of funds of the Company legally available therefor, cash dividends on such
dates and at such rates as are set forth in, or as are determined by the method
described in, the Prospectus Supplement relating to such series of the
Preferred Stock. Such rate may be fixed or variable or both. Each such
dividend will be payable to the holders of record as they appear on the stock
books of the Company on such record dates, fixed by the Board of Directors of
the Company, as specified in the Prospectus Supplement relating to such series
of Preferred Stock.
Such dividends may be cumulative or noncumulative, as provided in the
Prospectus Supplement relating to such series of Preferred Stock. If the Board
of Directors of the Company fails to declare a dividend payable on a dividend
payment date on any series of Preferred Stock for which dividends are
noncumulative, then the right to receive a dividend in respect of the dividend
period ending on such dividend payment date will be lost, and the Company will
have no obligation to pay any dividend for such period, whether or not
dividends on such series are declared payable on any future dividend payment
dates. Dividends on the shares of each series of Preferred Stock for which
dividends are cumulative will accrue from the date on which the Company
initially issues shares of such series.
Unless otherwise specified in the applicable Prospectus Supplement, so
long as the shares of any series of the Preferred Stock are outstanding, unless
(i) full dividends (including if such Preferred Stock is cumulative, dividends
for prior dividend periods) have been paid or declared and set apart for
payment on all outstanding shares of the Preferred Stock of such series and all
other classes and series of preferred stock of the Company (other than Junior
Stock, as defined below) and (ii) the Company is not in default or in arrears
with respect to the mandatory or optional redemption or mandatory repurchase or
other mandatory retirement of, or with respect to any sinking or other
analogous funds for, any shares of Preferred Stock of such series or any shares
of any other preferred stock of the Company of any class or series (other than
Junior Stock), the Company may not declare any dividends on any shares of
Common Stock of the Company or any other stock of the Company ranking as to
dividends or distributions of assets junior to such series of Preferred Stock
(the Common Stock and any such other stock being herein referred to as "Junior
Stock"), or make any payment on account of, or set apart money for, the
purchase, redemption or other retirement of, or for a sinking or other
analogous fund for, any shares of Junior Stock or make any distribution in
respect thereof, whether in cash or property or in obligations of stock of the
Company, other than in Junior Stock which is neither convertible into, nor
exchangeable or exercisable for, any securities of the Company other than
Junior Stock.
LIQUIDATION PREFERENCES
Unless otherwise specified in the applicable Prospectus Supplement, in
the event of any liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary, the holders of each series of the Preferred Stock
will be entitled to receive out of the assets of the Company available for
distribution to stockholders, before any distribution of assets is made to the
holders of Common Stock or any other shares of stock of the Company ranking
junior as to such distribution to such series of the Preferred Stock, the
amount set forth in the Prospectus Supplement relating to such
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series of the Preferred Stock. If, upon any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the amounts payable with
respect to the Preferred Stock of any series and any other shares of preferred
stock of the Company (including any other series of the Preferred Stock)
ranking as to any such distribution on a parity with such series of the
Preferred Stock are not paid in full, the holders of the Preferred Stock of
such series and of such other shares of preferred stock of the Company will
share ratably in any such distribution of assets of the Company in proportion
to the full respective preferential amounts to which they are entitled. After
payment to the holders of the Preferred Stock of each series of the full
preferential amounts of the liquidating distribution to which they are
entitled, unless otherwise provided in the applicable Prospectus Supplement,
the holders of each such series of the Preferred Stock will be entitled to no
further participation in any distribution of assets by the Company.
REDEMPTION
A series of the Preferred Stock may be redeemable, in whole or from
time to time in part, at the option of the Company, and may be subject to
mandatory redemption pursuant to a sinking fund or otherwise, in each case upon
terms, at the times and at the redemption prices set forth in the Prospectus
Supplement relating to such series. Shares of the Preferred Stock redeemed by
the Company will be restored to the status of authorized but unissued shares of
preferred stock of the Company.
In the event that fewer than all of the outstanding shares of a series
of the Preferred Stock are to be redeemed, whether by mandatory or optional
redemption, the number of shares to be redeemed will be determined by lot or
pro rata (subject to rounding to avoid fractional shares) as may be determined
by the Company or by any other method as may be determined by the Company in
its sole discretion to be equitable. From and after the redemption date
(unless default is made by the Company in providing for the payment of the
redemption price plus cumulated and unpaid dividends, if any) dividends will
cease to accumulate on the shares of the Preferred Stock called for redemption
and all rights of the holders thereof (except the right to receive the
redemption price plus accumulated and unpaid dividends, if any) will cease.
Unless otherwise specified in the applicable Prospectus Supplement, so
long as any dividends on shares of any series of the Preferred Stock or any
other series of preferred stock of the Company ranking on a parity as to
dividends and distribution of assets with such series of the Preferred Stock
are in arrears, no shares of any such series of the Preferred Stock or such
other series of preferred stock of the Company will be redeemed (whether by
mandatory or optional redemption) unless all such shares are simultaneously
redeemed, and the Company will not purchase or otherwise acquire any such
shares; provided, however, that the foregoing will not prevent the purchase or
acquisition of share shares pursuant to a purchase or exchange offer made on
the same terms to holders of all such shares outstanding.
CONVERSION AND EXCHANGE RIGHTS
The terms, if any, on which shares of Preferred Stock of any series
may be exchanged for or converted into shares of Common Stock or another series
of Preferred Stock will be set forth in the Prospectus Supplement relating
thereto. Such terms may include provisions for conversion, either mandatory,
at the option of the holder, or at the option of the Company, in which case the
number of shares of Common Stock or the number of shares of another series of
Preferred Stock to be received by the holders of Preferred Stock would be
calculated as of a time and in the manner stated in the Prospectus Supplement.
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VOTING RIGHTS
Except as indicated in a Prospectus Supplement relating to a
particular series of the Preferred Stock, or except as required by applicable
law, the holders of the Preferred Stock will not be entitled to vote for any
purpose.
DESCRIPTION OF WARRANTS
The Company may issue Warrants to purchase Debt Securities ("Debt
Warrants"), as well as Warrants to purchase Preferred Stock or Common Stock
("Equity Warrants") (together, the "Warrants"). Warrants may be issued
independently or together with any Securities and may be attached to or
separate from such Securities. The Warrants are to be issued under warrant
agreements (each a "Warrant Agreement") to be entered into between the Company
and a bank or trust company, as warrant agent (the "Warrant Agent"), all as
shall be set forth in the Prospectus Supplement relating to Warrants being
offered pursuant thereto.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the terms of Debt
Warrants offered thereby, the Warrant Agreement relating to such Debt Warrants
and the debt warrant certificates representing such Debt Warrants ("Debt
Warrant Certificates"), including the following: (1) the title of such Debt
Warrants; (2) the aggregate number of such Debt Warrants; (3) the price or
prices at which such Debt Warrants will be issued; (4) the designation,
aggregate principal amount and terms of the Debt Securities purchasable upon
exercise of such Debt Warrants, and the procedures and conditions relating to
the exercise of such Debt Warrants; (5) the designation and terms of any
related Debt Securities with which such Debt Warrants are issued, and the
number of such Debt Warrants issued with each such Debt Security; (6) the date,
if any, on and after which such Debt Warrants and the related Debt Securities
will be separately transferable; (7) the principal amount of Debt Securities
purchasable upon exercise of each Debt Warrant; (8) the date on which the right
to exercise such Debt Warrants will commence, and the date on which such right
will expire; (9) the maximum or minimum number of such Debt Warrants which may
be exercised at any time; (10) a discussion of any material federal income tax
considerations; and (11) any other terms of such Debt Warrants and terms,
procedures and limitations relating to the exercise of such Debt Warrants.
Debt Warrant Certificates will be exchangeable for new Debt Warrant
Certificates of different denominations, and Debt Warrants may be exercised at
the corporate trust office of the Warrant Agent or any other office indicated
in the Prospectus Supplement. Prior to the exercise of their Debt Warrants,
holders of Debt Warrants will not have any of the rights of holders of the Debt
Securities purchasable upon such exercise and will not be entitled to payment
of principal of or any premium, if any, or interest on the Debt Securities
purchasable upon such exercise.
EQUITY WARRANTS
The applicable Prospectus Supplement will describe the following terms
of Equity Warrants offered thereby: (1) the title of such Equity Warrants; (2)
the Securities (i.e. Preferred Stock or Common Stock) for which such Equity
Warrants are exercisable; (3) the price or prices at which such Equity Warrants
will be issued; (4) if applicable, the designation and terms of the Preferred
Stock or Common Stock with which such Equity Warrants are issued, and the
number of such Equity Warrants issued with each such share of Preferred Stock
or Common Stock; (5) if applicable, the date on and after which such Equity
Warrants and the related Preferred Stock or Common Stock will be separately
transferable; (6) if applicable, a discussion of any material federal income
tax
17
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considerations; and (7) any other terms of such Equity Warrants, including
terms, procedures and limitations relating to the exchange and exercise of such
Equity Warrants.
Holders of Equity Warrants will not be entitled, by virtue of being
such holders, to vote, to consent, to receive dividends, to receive notice as
stockholders with respect to any meeting of stockholders for the election of
directors of the Company or any other matter, or to exercise any rights
whatsoever as stockholders of the Company.
The exercise price payable and the number of shares of Common Stock of
Preferred Stock purchasable upon the exercise of each Equity Warrant will be
subject to adjustment in certain events, including the issuance of a stock
dividend to holders of Common Stock or Preferred Stock or a stock split,
reverse stock split, combination, subdivision or reclassification of Common
Stock or Preferred Stock. In lieu of adjusting the number of shares of Common
Stock or Preferred Stock purchasable upon exercise of each Equity Warrant, the
Company may elect to adjust the number of Equity Warrants. No adjustments in
the number of shares purchasable upon exercise of the Equity Warrants will be
required until cumulative adjustments require an adjustment of at least 1%
thereof. The Company may, at its option, reduce the exercise price at any
time. No fractional shares will be issued upon exercise of Equity Warrants,
but the Company will pay the cash value of any fractional shares otherwise
issuable. Notwithstanding the foregoing, in case of any consolidation, merger,
or sale or conveyance of the property of the Company as an entirety or
substantially as an entirety, the holder of each outstanding Equity Warrant
shall have the right to the kind and amount of shares of stock and other
securities and property (including cash) receivable by a holder of the number
of shares of Common Stock of Preferred Stock into which such Equity Warrant was
exercisable immediately prior thereto.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder to purchase for cash such
principal amount of Securities at such exercise price as shall in each case be
set forth in, or be determinable as set forth in, the Prospectus Supplement
relating to the Warrants offered thereby. Warrants may be exercised at any
time up to the close of business on the expiration date set forth in the
Prospectus Supplement relating to the Warrants offered thereby. After the
close of business on the expiration date, unexercised Warrants will become
void.
Warrants may be exercised as set forth in the Prospectus Supplement
relating to the Warrants offered thereby. Upon receipt of payment and the
warrant certificate properly completed and duly executed at the corporate trust
office of the Warrant Agent or any other office indicated in the Prospectus
Supplement, the Company will, as soon as practicable, forward the Securities
purchasable upon such exercise. If less than all of the Warrants represented
by such warrant certificate are exercised, a new warrant certificate will be
issued for the remaining Warrants.
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20
PLAN OF DISTRIBUTION
The Company may sell the Securities to one or more underwriters, for
offering and sale in the United States, Canada or elsewhere by them or may sell
the Securities to investors directly or through agents. Any such underwriter
or agent involved in the offer and sale of Securities will be named in the
applicable Prospectus Supplement. The Company has reserved the right to sell
Securities directly to investors on its own behalf in those jurisdictions where
and in such manner as it is authorized to do so.
Underwriters may offer and sell Securities at a fixed price or prices,
which may be changed, at market prices prevailing at the time of sale, at
prices related to such prevailing market prices or at negotiated prices. The
Company also may, from time to time, authorize dealers, acting as the Company's
agents, to offer and sell Securities upon the terms and conditions as are set
forth in the applicable Prospectus Supplement. In connection with the sale of
Securities, underwriters may receive compensation from the Company in the form
of underwriting discounts or commissions and may also receive commissions from
purchasers of the Securities for whom they may act as agent. Underwriters may
sell Securities to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or commissions from the
underwriters and/or commissions from the purchasers for whom they may act as
agent.
Any underwriting compensation paid by the Company to underwriters or
agents in connection with the offering of Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the applicable Prospectus Supplement. Dealers and agents
participating in the distribution of Securities may be deemed to be
underwriters, and any discounts and commissions received by them and any profit
realized by them on resale of the Securities may be deemed to be underwriting
discounts and commissions. Underwriters, dealers and agents may be entitled,
under agreements entered into with the Company, to indemnification against and
contribution toward certain civil liabilities, including liabilities under the
Securities Act of 1933 and securities legislation of certain provinces of
Canada.
If so indicated in the Prospectus Supplement, the Company will
authorize dealers acting as the Company's agents to solicit offers by certain
institutions to purchase the Securities from the Company at the public offering
price set forth in the applicable Prospectus Supplement pursuant to delayed
delivery contracts ("Contracts") providing for payment and delivery on the date
or dates stated in such Prospectus Supplement. Each Contract will be for an
amount not less than the amounts stated in the applicable Prospectus
Supplement. Institutions with whom Contracts, when authorized, may be made
include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions, and other
institutions but will in all cases be subject to the approval of the Company.
Contracts will not be subject to any conditions except (i) the purchase by the
institution of the Securities covered by its Contract shall not at the time of
delivery be prohibited under the laws of any jurisdiction in the United States
to which such institution is subject and (ii) if the Securities are being sold
to underwriters, the Company shall have sold to such underwriters the total
amount specified in the applicable Prospectus Supplement. A commission
indicated in the applicable Prospectus Supplement will be paid to underwriters
and agents soliciting purchases of Securities pursuant to Contracts accepted by
the Company.
To facilitate an offering of a series of Securities, certain persons
participating in the offering may engage in transactions that stabilize,
maintain, or otherwise affect the price of the Securities. This may include
over- allotments or short sales of the Securities, which involves the sale by
persons participating in the offering of more Securities than have been sold to
them by the Company. In such circumstances, such persons would cover such
over- allotments or short positions by purchasing in the open market or by
exercising the over-allotment option granted to such persons. In addition,
such persons may stabilize or maintain the price of the Securities by bidding
for or purchasing
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21
Securities in the open market or by imposing penalty bids, whereby selling
concessions allowed to dealers participating in any such offering may be
reclaimed if Securities sold by them are repurchased in connection with
stabilization transactions. The effect of these transactions may be to
stabilize or maintain the market price of the Securities at a level above that
which might otherwise prevail in the open market. Such transactions, if
commenced, may be discontinued at any time.
LEGAL MATTERS
Certain legal matters with respect to the Securities offered hereby
will be passed upon for the Company by Latham & Watkins, San Francisco,
California with respect to matters of United States law and McCarthy Tetrault,
Toronto, Ontario with respect to matters of Canadian law. Certain legal
matters will be passed upon for any agents or underwriters by counsel for such
agents or underwriters identified in the applicable Prospectus Supplement.
EXPERTS
The financial statements of Getchell Gold Corporation as of December
31, 1996 and December 31, 1995, and for the year ended December 31, 1996, the
six-month period ended December 31, 1995, and the fiscal years ended June 30,
1995 and June 30, 1994 have been incorporated by reference in this registration
statement in reliance upon the report of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
20
22
NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATION IN CONNECTION WITH THIS OFFERING
OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN SO
AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY BY ANYONE IN
ANY JURISDICTION IN WHICH SUCH OFFER TO SELL IS NOT AUTHORIZED, OR IN WHICH THE
PERSON IS NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR
ANY SALE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR
THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO
ITS DATE.
_______________________
TABLE OF CONTENTS
PAGE
----
Available Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Information Incorporated by Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
The Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Ratios of Earnings to Fixed Charges and
Earnings to Combined Fixed Charges and
Preferred Stock Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
General Description of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Description of Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Description of Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Description of Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Legal Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
GETCHELL GOLD CORPORATION
$300,000,000
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
EQUITY WARRANTS
DEBT WARRANTS
------------------
PROSPECTUS
------------------
_______________, 1997
23
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses to be paid by the Company in connection with the
distribution of the securities being registered are as set forth in the
following table:
Securities and Exchange Commission Fee . . . . . . . . . . . . . . . . . . . . . . . . $ 89,449
*Printing and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 30,000
*Accounting Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 40,000
*Legal Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 50,000
*Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 10,551
--------
*Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $220,000
========
_______________
*Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is a Delaware corporation. The Company has the power,
pursuant to Sections 102 and 145 of the Delaware General Corporation Law, to
limit the liability of its directors from certain breaches of fiduciary duty
and to indemnify its directors, officers and other persons for certain acts.
Articles XI and XII of the Company's Certificate of Incorporation
provide as follows:
ARTICLE XI
INDEMNIFICATION
(1) Action Not By or on Behalf of Corporation. The Corporation
shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Corporation) by reason of the fact that he is or was
a director, officer, employee or agent of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of
another Corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), fees, judgments, fines, and
amounts paid in settlement, actually and reasonably incurred by him in
connection with the action, suit or proceeding if he acted in, good faith and
in a manner reasonably believed to be in or not opposed to the best interests
of the Corporation, and with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, does not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(2) Action By or on Behalf of Corporation. The Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of
the Corporation to procedure a judgment in its favor by reason of
II-1
24
the fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another Corporation, partnership, joint
venture, trust, or other enterprise against expenses, including amounts paid in
settlement and attorneys' fees actually and reasonably incurred by him in
connection with the defense or settlement of the action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, except that indemnification may not be
made for any claim, issue or matter as to which such a person shall have been
adjudged by a court of competent jurisdiction, after exhaustion of all appeals
therefrom, to be liable to the Corporation or for amounts paid in settlement to
the Corporation unless and only to the extent that the court in which the
action or suit was brought or other court of competent jurisdiction determines
upon application that, in view of all of the circumstances of the case, the
person is fairly and reasonably entitled to indemnity for such expenses as the
court deems proper.
(3) Successful Defense. To the extent that a director, officer,
employee or agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Section 1
or 2 of this Article XI, or in defense or any claim, issue or matter therein,
he must be indemnified by the Corporation against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection with the
defense.
(4) Determination of Right to Indemnification in Certain
Circumstances. Any indemnification under Section 1 or 2 of this Article XI,
unless ordered by a court or advanced pursuant to this Article XI, must be made
by the Corporation only as authorized in the specified case upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances. The determination must be made by the
Stockholders, the Board of Directors by a majority vote of a quorum consisting
of directors who were not parties to the act, suit or proceeding, or if a
majority vote of a quorum of directors who were not parties to the act, suit or
proceeding so orders, by independent legal counsel in a written opinion, or if
a quorum consisting of directors who were not parties to the act, suit or
proceeding cannot be obtained, by independent legal counsel in a written
opinion.
(5) Advance Payment of Expenses. Expenses of officers and
directors incurred in defending a civil or criminal action, suit or proceeding
must be paid by the Corporation as they are incurred and in advance of the
final disposition of the action, suit or proceeding upon receipt of an
undertaking by or on behalf of the director or officer to repay the amount if
it is ultimately determined by a court of competent jurisdiction that he is not
entitled to be indemnified by the Corporation as authorized in this Article.
The provisions of this subsection (5) of this Article XI shall not affect any
rights to advancement of expenses to which corporate personnel other than
directors or officers may be entitled under any contract or otherwise by law.
(6) Not Exclusive.
(a) The indemnification and advancement of expenses
authorized in or ordered by a court pursuant to any other section of this
Article XI or any provision of law:
(i) does not exclude an other rights to which a
person seeking indemnification or advancement of expenses may be entitled under
the Certificate of Incorporation or any statute, by-law, agreement, vote of
stockholders or disinterested directors or otherwise, for either an action in
his official capacity or an action in another capacity while holding his
office, except that indemnification, unless ordered by a court pursuant to
subsection 2 of this Article XI or for the advancement of expenses made
pursuant to this Article XI may not be made to or on behalf of any director or
officer if a final adjudication establishes that his acts or omissions involved
intentional misconduct, fraud or a knowing violation of the law and was
material to the cause of action.
II-2
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(ii) continues for a person who has ceased to be a
director, officer, employee or agent and inures to the benefit of the heirs,
executors and administrators of such a person.
(b) Without limiting the foregoing, the Corporation is
authorized to enter into an agreement with any director, officer, employee or
agent of the Corporation providing indemnification for such person against
expenses, including attorneys' fees, judgments, fines and amounts paid in
settlement that result from any threatened, pending or completed action, suit,
or proceeding, whether civil, criminal, administrative or investigative,
including any action by or in the right of the Corporation, that arises by
reason of the fact that such person is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, to the full extent
allowed by law, except that no such agreement shall provide for indemnification
for any actions that constitute fraud, actual dishonesty or willful misconduct.
(7) Insurance. The Corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise for any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of this Article XI.
(8) Certain Definitions. For the purposes of this Article XI, (a)
any director, officer, employee or agent of the Corporation who shall serve as
a director, officer, employee or agent of any other corporation, joint venture
trust or other enterprise of which the Corporation, directly or indirectly, is
or was a stockholder or creditor, or in which the Corporation is or was in any
way interested, or (b) any director, officer, employee or agent of any
subsidiary corporation, joint venture, trust or other enterprise wholly owned
by the Corporation, shall be deemed to be serving as such director, officer,
employee or agent at the request of the Corporation, unless the Board of
Directors of the Corporation shall determine otherwise. In all other instances
where any person shall serve as a director, officer, employee or agent of
another corporation, joint venture, trust or other enterprise of which the
Corporation is or was a stockholder or creditor, or in which it is or was
otherwise interested, if it is not otherwise established that such person is or
was serving as such director, officer, employee or agent at the request of the
Corporation, the Board of Directors of the Corporation may determine whether
such service is or was at the request of the Corporation, and it shall not be
necessary to show any actual or prior request for such service. For purposes
of this Article XI, references to a corporation include all constituent
corporations absorbed in a consolidation or merger as well as the resulting or
surviving corporation so that any person who is or was a director, officer,
employee or agent of such a constituent corporation or is or was serving at the
request of such constituent corporation as a director, officer, employee or
agent of another corporation, joint venture, trust or other enterprise shall
stand in the same position under the provisions of this Article XI with respect
to the resulting or surviving corporation as he would if he had served the
resulting or surviving corporation in the same capacity. For purposes of this
Article XI, references to "other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise taxes assessed on a
person with respect to an employee benefit plan; and references to "serving at
the request of the Corporation" shall include any service as a director,
officer, employee or agent of the Corporation which imposes duties on, or
involves services by, such director, officer, employee, or agent with respect
to an employee benefit plan, its participants, or beneficiaries; and a person
who acted in good faith and in a manner he reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interests of
the Corporation" as referred to in this Article XI.
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26
ARTICLE XII
LIMITATION ON PERSONAL LIABILITY FOR
DIRECTORS
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of a fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation 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 or (iv) for any transaction from which the director derived any
improper personal benefit. If the Delaware General Corporation Law is amended
hereafter to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(A) EXHIBITS:
4(c) Company Resolutions authorizing the 1988-A Series
Convertible Preferred Stock, effective July 13, 1988, which
were filed as Exhibit 4(c) to the Company's Annual Report on
Form 10-K for the fiscal year ended June 30, 1988, are
incorporated by reference.
4(d) Company Resolutions authorizing the 1989-A Series
Convertible Preferred Stock, effective August 9, 1989, which
were filed as Exhibit 4(f) to the Company's Annual Report on
Form 10-K for the year ended June 30, 1989, are incorporated
herein by reference.
4(e) Company Resolutions authorizing the 1989-B Series
Convertible Preferred Stock, effective November 2, 1989,
which were filed as Exhibit 4.1 to the Company's Quarterly
Report on Form 10-Q for the quarter ended September 30,
1989, are incorporated herein by reference.
4(f) Company Resolutions authorizing the 1990-A Series
Convertible Preferred Stock, effective August 8, 1990, which
were filed as Exhibit 4(f) to the Company's Annual Report on
Form 10-K for the fiscal year ended June 30, 1990, are
incorporated herein by reference.
4(g) Company Resolutions authorizing the Company's 1990-B and
1990-C Series Convertible Preferred Stock, effective
November 1, 1990 and November 2, 1990, respectively, which
were filed as Exhibit 4.1 to the Company's Quarterly Report
on Form 10-Q for the quarter ended September 30, 1990, are
incorporated herein by reference.
4(h) Company Resolutions authorizing the 1991-A Series
Convertible Preferred Stock, effective August 14, 1991,
which were filed as Exhibit 4(h) to the Company's Annual
Report on Form 10-K for the fiscal year ended June 30, 1991,
are incorporated herein by reference.
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4(i) Company Resolutions authorizing the 1991-B Series
Convertible Preferred Stock, effective November 7, 1991,
which were filed as Exhibit 4.1 to the Company's Quarterly
Report on Form 10-Q for the quarter ended September 30,
1991, are incorporated herein by reference.
4(j) Company Resolutions authorizing the 1992-A Series
Convertible Preferred Stock, effective November 5, 1992,
which were filed as Exhibit 4 to the Company's Quarterly
Report on Form 10-Q for the quarter ended September 30,
1992, are incorporated herein by reference.
4(k) Company Resolutions authorizing the 1993-A Series
Convertible Preferred Stock, effective November 4, 1993,
which were filed as Exhibit 4 to the Company's Quarterly
Report on Form 10-Q for the quarter ended September 30,
1993, are incorporated herein by reference.
4(l) Amended and Restated Rights Agreement between the Company
and Harris Trust and Savings Bank, dated as of December 31,
1996, which was filed as Exhibit 4(l) to the Company's
Annual Report on Form 10-K for the year ended December 31,
1996, and is incorporated herein by reference.
4(m) Form of Indenture.
5(a) Opinion of Latham & Watkins.
12 Computation of Ratios of Earnings to Fixed Charges.
23(a) Consent of KPMG Peat Marwick LLP.
23(b) Consent of Latham & Watkins (included in Exhibit 5(a)).
24 Power of Attorney (included on page II-8).
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ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in
the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement;
provided, however, that the information required to be included in a
post-effective amendment by paragraphs (a)(1)(i) and (a)(1)(ii) above may be
contained in periodic reports filed by the registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to section 13(a) or section 15(d) of
the Securities Exchange Act of 1934 and (and, where applicable, each filing of
an employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
II-6
29
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
(j) The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee to
act under Subsection (a) of Section 310 of the Trust Indenture Act (the "Act")
in accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
II-7
30
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE
REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS
ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF ENGLEWOOD, STATE OF COLORADO ON JUNE 25, 1997.
Getchell Gold Corporation
By /s/ G.W. THOMPSON
----------------------------------
G.W. Thompson, President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints G.W. Thompson and J. Kelley
Williams, and each of them, their true and lawful attorneys and agents, with
full power of substitution, each with power to act alone, to sign and execute
on behalf of the undersigned any and all amendments (including without
limitation any post-effective amendments and amendments thereto) to this
Registration Statement on Form S-3, requests to accelerate the effectiveness of
this Registration Statement, and any registration statement for the same
offering that is to be effective under Rule 462(b) of the Securities Act, and
to perform any acts necessary in order to file the same, with all exhibits
thereto and other documents in connection therewith with the Securities and
Exchange Commission, and each of the undersigned does hereby ratify and confirm
all that said attorneys and agents, or their or his or her substitutes, shall
do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY EACH OF THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ G.W. THOMPSON President and Chief Executive June 25, 1997
--------------------------------------------
G.W. Thompson Officer (Principal Executive
Officer) and Director
/s/ DONALD S. ROBSON Vice President and June 25, 1997
--------------------------------------------
Donald S. Robson Chief Financial Officer
(Principal Financial Officer)
/s/ ROGER D. PALMER Controller (Principal June 25, 1997
--------------------------------------------
Roger D. Palmer Accounting Officer)
/s/ J. KELLEY WILLIAMS Director and Chairman of the June 25, 1997
--------------------------------------------
J. Kelley Williams Board of Directors
/s/ WALTER A. DREXEL Director June 25, 1997
--------------------------------------------
Walter A. Drexel
/s/ ROBERT C. HORTON Director June 25, 1997
--------------------------------------------
Robert C. Horton
/s/ PETE INGERSOLL Director June 25, 1997
--------------------------------------------
Pete Ingersoll
II-8
31
/s/ JOHN RACICH Director June 25, 1997
--------------------------------------------
John Racich
/s/ CHARLIE E. STOTT, JR. Director June 25, 1997
--------------------------------------------
Charlie E. Stott, Jr.
/s/ R. M. SUMMERFORD Director June 25, 1997
--------------------------------------------
R. M. Summerford
/s/ ALLEN WINTERS Director June 25, 1997
--------------------------------------------
Allen Winters
/s/ ROBERT L. ZERGA Director June 25, 1997
--------------------------------------------
Robert L. Zerga
II-9
32
EXHIBIT INDEX
4(c) Company Resolutions authorizing the 1988-A Series
Convertible Preferred Stock, effective July 13, 1988, which
were filed as Exhibit 4(c) to the Company's Annual Report on
Form 10-K for the fiscal year ended June 30, 1988, are
incorporated by reference.
4(d) Company Resolutions authorizing the 1989-A Series
Convertible Preferred Stock, effective August 9, 1989, which
were filed as Exhibit 4(f) to the Company's Annual Report on
Form 10-K for the year ended June 30, 1989, are incorporated
herein by reference.
4(e) Company Resolutions authorizing the 1989-B Series
Convertible Preferred Stock, effective November 2, 1989,
which were filed as Exhibit 4.1 to the Company's Quarterly
Report on Form 10-Q for the quarter ended September 30,
1989, are incorporated herein by reference.
4(f) Company Resolutions authorizing the 1990-A Series
Convertible Preferred Stock, effective August 8, 1990, which
were filed as Exhibit 4(f) to the Company's Annual Report on
Form 10-K for the fiscal year ended June 30, 1990, are
incorporated herein by reference.
4(g) Company Resolutions authorizing the Company's 1990-B and
1990-C Series Convertible Preferred Stock, effective
November 1, 1990 and November 2, 1990, respectively, which
were filed as Exhibit 4.1 to the Company's Quarterly Report
on Form 10-Q for the quarter ended September 30, 1990, are
incorporated herein by reference.
4(h) Company Resolutions authorizing the 1991-A Series
Convertible Preferred Stock, effective August 14, 1991,
which were filed as Exhibit 4(h) to the Company's Annual
Report on Form 10-K for the fiscal year ended June 30, 1991,
are incorporated herein by reference.
4(i) Company Resolutions authorizing the 1991-B Series
Convertible Preferred Stock, effective November 7, 1991,
which were filed as Exhibit 4.1 to the Company's Quarterly
Report on Form 10-Q for the quarter ended September 30,
1991, are incorporated herein by reference.
4(j) Company Resolutions authorizing the 1992-A Series
Convertible Preferred Stock, effective November 5, 1992,
which were filed as Exhibit 4 to the Company's Quarterly
Report on Form 10-Q for the quarter ended September 30,
1992, are incorporated herein by reference.
4(k) Company Resolutions authorizing the 1993-A Series
Convertible Preferred Stock, effective November 4, 1993,
which were filed as Exhibit 4 to the Company's Quarterly
Report on Form 10-Q for the quarter ended September 30,
1993, are incorporated herein by reference.
4(l) Amended and Restated Rights Agreement between the Company
and Harris Trust and Savings Bank, dated as of December 31,
1996, which was filed as Exhibit 4(l) to the Company's
Annual Report on Form 10-K for the year ended December 31,
1996, and is incorporated herein by reference.
4(m) Form of Indenture.
5(a) Opinion of Latham & Watkins.
12 Computation of Ratios of Earnings to Fixed Charges.
33
23(a) Consent of KPMG Peat Marwick LLP.
23(b) Consent of Latham & Watkins (included in Exhibit 5(a)).
24 Power of Attorney (included on page II-8).