-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LaM8iFzzC1uGhwbO0YgtSVf0wTCU2Kce/gV9O2pU9WATBVbeWOxEfizo2ZHtrSjk LDUjqiLuI1OxqxIWjVabZw== /in/edgar/work/20000809/0000934614-00-000042/0000934614-00-000042.txt : 20000921 0000934614-00-000042.hdr.sgml : 20000921 ACCESSION NUMBER: 0000934614-00-000042 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20000809 EFFECTIVENESS DATE: 20000809 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HOMESTAKE MINING CO /DE/ CENTRAL INDEX KEY: 0000743872 STANDARD INDUSTRIAL CLASSIFICATION: [1040 ] IRS NUMBER: 942934609 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-43352 FILM NUMBER: 689690 BUSINESS ADDRESS: STREET 1: 1600 RIVIERA AVENUE SUITE 200 CITY: WALNUT CREEK STATE: CA ZIP: 94596-3568 BUSINESS PHONE: 9258171300 MAIL ADDRESS: STREET 1: 1600 RIVIERA AVENUE SUITE 200 CITY: WALNUT CREEK STATE: CA ZIP: 94596-3568 S-8 1 0001.txt HOMESTAKE MINING COMPANY S-8 As filed with the Securities and Exchange Commission on August 9, 2000 Registration No. 333- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 HOMESTAKE MINING COMPANY (Exact Name of Registrant as Specified in Its Charter) DELAWARE 94-2934609 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification No.) 1600 RIVIERA AVENUE, SUITE 200 WALNUT CREEK, CA 94596-3568 (925) 817-1300 (Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Principal Executive Offices) AMENDED HOMESTAKE MINING COMPANY STOCK OPTION AND SHARE RIGHTS PLAN - 1996 (Full Title of the Plan) WAYNE KIRK VICE PRESIDENT, GENERAL COUNSEL AND CORPORATE SECRETARY HOMESTAKE MINING COMPANY 1600 RIVIERA AVENUE, SUITE 200 WALNUT CREEK, CA 94596-3568 (925) 817-1300 (Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service) COPIES TO: MICHELLE L. JOHNSON THELEN REID & PRIEST LLP 101 SECOND STREET, 18TH FLOOR SAN FRANCISCO, CA 94105 CALCULATION OF REGISTRATION FEE Proposed Proposed Title Of Maximum Maximum Securities Amount Offering Aggregate Amount Of To Be To Be Price Per Offering Registration Registered (1) Registered (2) Share (3) Price (3) Fee Common Stock, $1.00 12,000,000 $5.375 $64,500,000 $17,028 par value __________________ (1) Each share of Common Stock includes one Right to be issued in certain circumstances pursuant to the Rights Agreement between Homestake and BankBoston, N.A., as Rights Agent. Also registered hereby are such additional and indeterminable number of shares as may become issuable due to adjustments for changes resulting from stock splits, stock dividends and similar events. (2) Based on the estimated maximum amount of Common Stock to be offered under the Stock Option and Share Rights Plan - 1996. (3) Estimated solely for the purpose of determining the registration fee in accordance with Rule 457(h) under the Securities Act. The above calculation is based on the average of the reported high and low prices of the Common Stock on The New York Stock Exchange on August 7, 2000. PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS The documents containing the information specified in Part I of Form S-8 will be or have been given without charge to participants in the Amended Homestake Mining Company Stock Option and Share Rights Plan - 1996 as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the "Securities Act"). Such documents are not submitted to the Securities and Exchange Commission (the "Commission") herewith in accordance with the Note to Part I of Form S-8, but such documents (together with the documents incorporated by reference herein pursuant to Item 3 of Part II, below) shall constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. Homestake Mining Company will provide participants without charge, upon written or oral request, any of the documents incorporated by reference herein pursuant to Item 3 of Part II below. ITEM 1. PLAN INFORMATION See above. To obtain additional information about the 1996 Stock Option and Share Rights Plan - 1996 and its administrators, participants may contact Homestake Mining Company, Attn.: Corporate Secretary, 1600 Riviera Avenue, Suite 200, Walnut Creek, California 94596-3568; telephone number (925) 817-1300. ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION See above. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed with the Commission by Homestake Mining Company (the "Company") are incorporated by reference in this registration statement: (a) The Company's annual report on Form 10-K for the year ended December 31, 1999, filed March 27, 2000, pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") (File # 001-08736); (b) Quarterly Report on Form 10-Q for the quarter ended March 31, 2000, filed May 12, 2000 (File # 001-08736); (c) Current Report on Form 8-K dated January 18, 2000, filed January 18, 2000 (File # 001-08736); and (d) The description of the Homestake Common Stock and Homestake Rights contained in Homestake's Registration Statement on Form S-3 (No. 333-66311) filed on November 23, 1998, subsequent descriptions of amendments to the Homestake Rights II-1 Agreement, filed on Form 8-A/A filed on December 4, 1998 and April 8, 1999, and any amendment or report filed for the purpose of updating such descriptions. All documents subsequently filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing (except that no document shall be deemed to be incorporated by reference herein if such document is filed after the filing of a post- effective amendment which indicates that all securities offered hereunder have been sold or which deregisters securities then remaining unsold). ITEM 4. DESCRIPTION OF SECURITIES Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Article XVII of the Company's Restated Certificate of Incorporation contains a provision, permitted by Section 102(b)(7) of the Delaware General Corporation Law (the "Delaware Law"), limiting the personal monetary liability of directors for breach of fiduciary duties as a director. Delaware Law provides that such a provision does not eliminate or limit liability (i) for any breach of the director's duty of loyalty to the Company or its stockholders, (ii) for unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the Delaware Law, (iii) for acts of omissions not in good faith or which involve intentional misconduct or a knowing violation of law, or (iv) for any transaction from which the director derived an improper personal benefit. Section 145 of the Delaware Law permits indemnification against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with actions, suits or proceedings in which an officer, director, employee or agent is a party by reason of the fact that he is or was such a director, officer, employee or agent, 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 and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. However, in connection with acts by or in the right of the corporation, such indemnification is not permitted if such person has been adjudged liable for negligence or misconduct in the performance of his duty to the corporation unless the court determines that, under all of the circumstances, such person is nonetheless fairly and reasonably entitled to indemnity for such expenses as the court deems proper. Section 145 also permits a corporation to purchase and maintain insurance on behalf of its directors and officers against and liability which may be asserted against, or incurred by, such persons in their capacities as directors or officers of the corporation whether or not the registrant would have the power to indemnify such persons against such liabilities under the provisions of such section. The Company has purchased such insurance. Section 145 further provides that the statutory provision is not exclusive of any other right to which those seeking indemnifications or advancement of expenses may be entitled under any by-laws, agreement, vote of stockholders or II-2 independent directors, or otherwise, both as to action in such person's official capacity and as to action I another capacity while holding such office. Article XIV, Section 8, of the Bylaws of the Company, provides that the Company must indemnify directors and officers to the fullest extent permitted by Delaware Law. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. ITEM 8. EXHIBITS Number Exhibit 4.1 Indenture, dated as of January 23, 1993 between Homestake, Issuer and The Chase Manhattan Bank, N.A., Trustee, with respect to U.S. $150,000,000 principal amount of 5 1/2% Convertible Subordinated Notes due June 23, 2000 (incorporated by reference to Exhibit 4.2 to Homestake's Periodic Report on Form 8-K, dated as of June 23, 1993, filed June 29, 1993 (File No. 001-08736)). 4.2 Rights Agreement dated October 16, 1987 (incorporated by reference to Exhibit 1 to the Company's Registration Statement on Form 8-A/A dated October 16, 1987). 4.3 Amendment No. 1 dated as of October 15, 1997 to the Rights Agreement dated as of October 16, 1987 (incorporated by reference to Exhibit 4 to the Registrant's Form 8-A/A filed on October 16, 1997). 4.4 Amendment No. 2 dated as of December 3, 1998 to the Rights Agreement dated as of October 16, 1987 (incorporated by reference to Exhibit 6 to the Registrant's Form 8-A/A filed on December 4, 1998). 4.5 Amendment No. 3 dated as of February 26, 1999, to the Rights Agreement dated as of October 16, 1987 (incorporated by reference to Exhibit 7 to the Registrant's Form 8-A/A filed on April 8, 1999). 5 Opinion of Thelen Reid & Priest LLP, dated August 8, 2000. 23.1 Consent of Thelen Reid & Priest LLP (included in Exhibit 5 to this Registration Statement). 23.2 Consent of PricewaterhouseCoopers LLP, independent accountants, dated August 8, 2000. 24 Powers of Attorney (included on the signature pages to this Registration Statement). II-3 ITEM 9. UNDERTAKINGS (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement; (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (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 and 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 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post- effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (h) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed II-4 in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Walnut Creek, State of California, on this 8th day of August, 2000. Homestake Mining Company, a Delaware corporation By: /s/ Wayne Kirk Wayne Kirk Vice President, General Counsel and Corporate Secretary POWER OF ATTORNEY Each person whose signature appears below hereby appoints David W. Peat, Wayne Kirk and Jack E. Thompson, and each of them severally, acting alone and without the other, his true and lawful attorney-in-fact with authority to execute in the name of each such person, and to file with the Securities and Exchange Commission, together with any exhibits thereto and other documents therewith, any and all amendments (including without limitation post-effective amendments) to this registration statement necessary or advisable to enable the Registrant to comply with the Securities Act of 1933 and any rules, regulations and requirements of the Securities and Exchange Commission in respect thereof, which amendments may make such changes in this registration statement as the aforesaid attorney-in-fact deems appropriate. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated. Date: August 8, 2000 /s/ Jack E. Thompson Jack E. Thompson Chairman and Chief Executive Officer (Principal Executive Officer) Date: August 8, 2000 /s/ David W. Peat David W. Peat Vice President, Finance and Chief Financial Officer (Principal Financial Officer) II-6 Date: August 8, 2000 /s/ James B. Hannna James B. Hannan Vice President and Controller (Principal Accounting Officer) Date: August 8, 2000 /s/ Gerhard Ammann Gerhard Ammann Director Date: August 8, 2000 /s/ M. Norman Anderson M. Norman Anderson Director Date: _______, 2000 Richard R. Burt Director Date: August 8, 2000 /s/ Robert H. Clark, Jr. Robert H. Clark, Jr. Director Date: August 8, 2000 /s/ John Neerhout, Jr. John Neerhout, Jr. Director Date: August 8, 2000 /s/ Peter J. Neff Peter J. Neff Director Date: ______, 2000 Carol A. Rae Director Date: August 8, 2000 /s/ Jeffrey L. Zelms Jeffrey L. Zelms Director II-7 EXHIBIT INDEX Number Exhibit 5 Opinion of Thelen Reid & Priest LLP, dated August 8, 2000. 23.1 Consent of Thelen Reid & Priest LLP (included in Exhibit 5 to this Registration Statement). 23.2 Consent of PricewaterhouseCoopers LLP, formerly Coopers & Lybrand L.L.P., independent accountants, dated August 8, 2000. 24 Powers of Attorney (included on the signature pages to this Registration Statement). EX-5 2 0002.txt OPINION OF THELEN REID & PRIEST LLP [LETTERHEAD OF THELEN REID & PRIEST LLP] August 8, 2000 Homestake Mining Company 1600 Riviera Avenue, Suite 200 WALNUT CREEK, CA 94596-3658 Re: Registration of Securities on Form S-8 for Homestake Mining Company Ladies and Gentlemen: We have acted as counsel for Homestake Mining Company, a Delaware corporation (the "Company"), in connection with the preparation of a Registration Statement on Form S-8 relating to the issuance and sale of 12,000,000 shares of common stock, $1.00 par value, of the Company ("Common Stock"), pursuant to the Homestake Mining Company Amended Stock Option Plan and Share Rights Plan-1996 (the "Plan"). Please be advised that we are of the opinion that the Common Stock to be offered and sold by the Company, when issued and paid for in the manner contemplated by the Plan, will be legally issued, fully paid and non-assessable. We are members of the bar of the State of California and we express no opinion as to the laws of any state or jurisdiction other than federal laws of the United States, the laws of the State of California and the corporate laws of the State of Delaware. We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement on Form S-8. Very truly yours, /s/ Thelen Reid & Priest LLP Thelen Reid & Priest LLP MLJ/CCWC EX-23 3 0003.txt EXHIBIT 23.2 CONSENT OF PRICEWATERHOUSECOOPERS LLP 23.2 [LETTERHEAD OF PRICEWATERHOUSE COOPERS] CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 3, 2000 relating to the financial statements, which appears in the 1999 Annual Report to Shareholders and which is incorporated by reference in Homestake Mining Company's Annual Report on Form 10-K for the year ended December 31, 1999. /s/ PricewaterhouseCoopers LLP Pricewaterhouse Coopers LLP August 8, 2000 -----END PRIVACY-ENHANCED MESSAGE-----