AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
ON MARCH 23, 2004
REGISTRATION NO. 333-________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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APOLLO GOLD CORPORATION
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(Exact Name of Registrant as Specified in Its Charter)
YUKON TERRITORY 1040 Not Applicable
--------------- ---- --------------
(State or Other Jurisdiction of (Primary Standard (I.R.S. Employer
Incorporation or Organization) Industrial Classification Identification
Code) Number)
SUITE 300, 204 BLACK STREET
WHITEHORSE, YUKON TERRITORY, CANADA Y1A 2M9
(720) 886-9656
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(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Executive Offices)
Plan of Arrangement Stock Option Incentive Plan
Stock Option Incentive Plan
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(Full title of the plan)
R. DAVID RUSSELL
PRESIDENT AND CHIEF EXECUTIVE OFFICER
SUITE 300, 204 BLACK STREET
WHITEHORSE, YUKON TERRITORY, CANADA Y1A 2M9
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(Name and address of agent for service)
(720) 886-9656
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(Telephone number, including area code, of agent for service)
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COPY TO:
CATHRYN S. GAWNE, ESQ.
MICHAEL H. IRVINE, ESQ.
SILICON VALLEY LAW GROUP
152 NORTH THIRD STREET, SUITE 900
SAN JOSE, CALIFORNIA 95112
(408) 286-6100
If any of the securities being registered on this Form are being offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
Title of securities Amount to be offering price per aggregate Amount of
to be registered registered share (1) offering price registration fee
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Common Stock,
no par value 7,191,596 shares $2.06 $14,814,687.76 $1,877.02
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(1) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457 (h).
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in this Part I are being
separately provided to the Registrant's employees, officers, directors and
consultants as specified by Rule 428(b)(1) promulgated under the Securities Act
of 1933, as amended (the "Securities Act").
The following reoffer prospectus filed as part of this registration
statement has been prepared in accordance with General Instruction C of Form S-8
and, pursuant thereto, may be used for reofferings and resales of the shares of
common stock registered hereby. The reoffer prospectus is for use in reoffering
and reselling shares of common stock that may be deemed to be "control
securities" or "restricted securities" under the Securities Act.
SUBJECT TO COMPLETION, DATED ___________, 2004
REOFFER PROSPECTUS
------------------
[LOGO OMITED]
APOLLO GOLD CORPORATION
7,580,412 Shares
Common Stock
(No Par Value)
--------------
This is an offering of common stock of Apollo Gold Corporation. All of the
shares are being offered by the selling stockholders listed in the section of
this prospectus entitled "Selling Stockholders." These stockholders are our
current or former directors, officers or employees. They acquired the common
stock pursuant to the exercise of options granted under our option plans. We
will not receive any proceeds from the potential sale of the shares being
offered by the selling stockholders.
The shares of common stock are "control securities" or "restricted
securities" under the Securities Act of 1933, as amended, before their sale
under this reoffer prospectus. The selling stockholders may resell all, a
portion, or none of the shares of common stock from time to time.
Our common stock trades on the American Stock Exchange under the symbol
"AGT" and on the Toronto Stock Exchange under the symbol "APG". On March 10,
2004, the closing sales price for our common stock on the American Stock
Exchange was $1.97 per share and on the Toronto Stock Exchange was Cdn $2.61 per
share.
------------------
Investment in our common stock involves a high degree of risk. Please
carefully consider the "Risk Factors" beginning on page 5 of this prospectus.
------------------
Neither the Securities and Exchange Commission (the "SEC"), nor any state
securities commission, has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the
contrary is a criminal offense.
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The date of this prospectus is _____________, 2004.
TABLE OF CONTENTS
Page
----
Special Note Regarding Forward-Looking Statements. . . . . . . . . . . . . . . 1
Prospectus Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Selling Stockholders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Plan of Distribution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Legal Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Where You Can Find More Information
Incorporated by Reference . . . . . . . . . . . . . . . . . . . . . . . . . . 19
You should rely only on the information contained in this prospectus or to
which this prospectus specifically refers you. We have not authorized anyone
else to provide you with different information. This document may be used only
where it is legal to sell these securities. The information in this prospectus
may only be accurate on the date of this prospectus.
------------------
Unless the context otherwise requires, the terms "we," "our," "us" and
"Apollo" refer to Apollo Gold Corporation and its subsidiaries.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus includes forward-looking statements that reflect our
current expectations and projections about our future results, performance,
prospects, and opportunities. We have tried to identify these forward-looking
statements by using words such as "may," "expect," "anticipate," "believe,"
"intend," "plan," "estimate," and similar expressions. These forward-looking
statements are based on information currently available to us and are subject to
a number of risks, uncertainties, and other factors that could cause our actual
results, performance, prospects, or opportunities to differ materially from
those expressed in, or implied by, these forward-looking statements. These
risks, uncertainties, and other factors include, but are not limited to:
- metal prices and price volatility;
- amount of metal production;
- costs of production;
- remediation, reclamation, and environmental costs;
- regulatory matters;
- the results or settlement of pending litigation;
- cash flow;
- revenue calculations;
- the nature and availability of financing; and
- project risks.
See "Risk Factors" for a description of these factors. Other matters,
including unanticipated events and conditions, also may cause our actual future
results to differ materially from these forward-looking statements. We cannot
assure you that our expectations will prove to be correct. In addition, all
subsequent written and oral forward-looking statements attributable to us or
persons acting on our behalf are expressly qualified in their entirety by the
cautionary statements mentioned above. You should not place undue reliance on
these forward-looking statements. All of these forward-looking statements are
based on our expectations as of the date of this periodic filing. Except as
required by federal securities laws, we do not intend to update or revise any
forward-looking statements, whether as a result of new information, future
events, or otherwise.
1
PROSPECTUS SUMMARY
THE COMPANY
We are principally engaged in the exploration, development and mining of
gold. We have focused our efforts to date on two principal properties: our
Montana Tunnels Mine, owned by one of our subsidiaries, Montana Tunnels Mining,
Inc. ("Montana, Inc.") and our Florida Canyon Mine, owned by another one of our
subsidiaries, Florida Canyon Mining, Inc. ("Florida, Inc."). Our exploration
activities involve our Pirate Gold, Nugget Field and Diamond Hill properties as
well as our Black Fox Property, acquired in September 2002.
We are the result of the plan of arrangement that resulted in the merger of
International Pursuit Corporation, a public company previously trading on the
Toronto Stock Exchange under the ticker symbol "IPJ" (Pursuit"), and Nevoro Gold
Corporation, a privately held corporation ("Nevoro"). Pursuant to the terms of
the plan of arrangement, Pursuit acquired Nevoro and continued operations under
the name of Apollo Gold Corporation. Through our wholly-owned subsidiary, Apollo
Gold, Inc. ("AGI"), acquired by Nevoro in March 2002, we own the majority of our
assets and operate our business. We continued trading on the Toronto Stock
Exchange under our new name, Apollo Gold Corporation, and with a new ticker
symbol, APG.U, on July 3, 2002. On August 2, 2002 our ticker symbol changed to
APG.
In February 2003, we filed a Registration Statement on Form 10 with the
SEC. The Registration Statement was declared effective on August 13, 2003. On
August 26, 2003 the Company began trading on the American Exchange under the
ticker symbol AGT.
We own and operate the Florida Canyon Mine, a low grade heap leach gold
mine located approximately 42 miles southwest of Winnemucca, Nevada. The Florida
Canyon Mine employs approximately 178 full-time non-unionized employees and
produces approximately 110,000 ounces of gold annually. During 2003, 101,811
ounces of gold were produced. In addition to the mining activities being
conducted at the Florida Canyon Mine, we are continuing a drilling program which
is directed at confirmation and expansion of additional mineralization, and we
are conducting a study to determine if areas in some of the mine walls may be
used for additional mining.
We also own and operate the Montana Tunnels Mine, an open pit located near
Helena, Montana. When in full production, the Montana Tunnels Mine has
historically produced approximately 70,000 ounces of gold, 26,000 tons of zinc,
6,676 tons of lead and 1,200,000 ounces of silver annually. The Montana Tunnels
Mine produces approximately 15% of its annual gold production in the form of
dore, an unrefined material consisting of approximately 90% gold, which is then
further refined. The remainder of the mine's production is in the form of
concentrates, one a zinc-gold concentrate and the other a lead-gold concentrate
which are shipped to a smelter. We are paid for the metal content, net of
smelter charges. The Montana Tunnels Mine was idle for approximately four months
in 2002, while we made preparations to begin the removal of waste rock at the
Mine. Limited production resumed in October 2002, and full production on the
K-Pit resumed in April 2003. During 2003, 44,124 ounces of gold were produced.
Currently, an additional 17 million tons of waste is being removed from the
2
Southwest Pit Wall. Adequate funding is in place and this program is expected to
be complete by August 2004. The Montana Tunnels Mine employs approximately 162
full-time non-unionized employees.
We have several exploration assets including Pirate Gold and Nugget Field,
each located in Nevada and owned by our wholly-owned subsidiary, Apollo Gold
Exploration, Inc., a Delaware corporation. In addition, we also own Diamond
Hill, which is located in Montana and Standard Mine which is located in Nevada.
In the third quarter of 2003, we received three operating permits for the
Standard Mine from the State of Nevada, and we have begun drafting preliminary
operating and production plans for mine production set to begin in 2005. At the
Standard Mine, drilling began in October 2003, and we expect to drill at
numerous targets through several phases of drilling. All but two of our drilling
sites require additional permitting, and we have submitted an exploration drill
planning map to the State of Nevada for these additional permits. At Pirate Gold
we have solicited drilling bids and we expect to drill approximately 14 holes in
2004 to explore the mineralization of this property.
In September 2002, we completed the acquisition of certain assets known as
our Black Fox Property from two unrelated third parties, Exall Resources Limited
and Glimmer Resources, Inc. The Black Fox Property is located east of Timmins,
Ontario. We currently anticipate that the development and commercialization of
our Black Fox Property will require three phases. The first phase commenced in
early 2003, and involved core drilling of approximately 215 core holes. As a
result of the core drilling, we have identified proven and probable reserves at
the Black Fox Property. We are conducting a study to confirm the reserves and
the study should be complete by March 2004. We believe that the first phase will
cost approximately US $3.5 million.
Upon completion of the first phase of the drilling program, we will then
begin the second phase of our Black Fox project. The second phase will provide
for the development of underground access for further exploratory drilling with
an anticipated cost of US $11.7 million for the period from January, 2004
through December, 2004. We plan to develop an underground ramp from existing
structures. We currently anticipate commencing the second phase underground
drilling in January 2004. We also plan to begin the permitting process for the
third phase of the Black Fox project, and anticipate that this process will
require approximately two years, based on a plan for combined open pit and
underground mine, with on-site milling, at a capacity of 1500 metric tons of ore
per day. The third phase will include the development of these capabilities, at
an aggregate estimated cost of approximately US $45.0 million.
THE OFFERING
The selling stockholders listed in the section of this prospectus entitled
"Selling Stockholders" may offer and sell up to 7,191,596shares of our common
stock. These stockholders are our current or former directors, officers,
employees or consultants. They acquired the common stock pursuant to the
exercise of options granted under our option plans.
3
We will not receive any proceeds from the potential sale of the 7,191,596shares
being offered by the selling stockholders.
The shares of common stock offered by this prospectus have the status of
"control securities" or "restricted securities" under the Securities Act until
their sale under this reoffer prospectus. The selling stockholders may resell
all, a portion, or none of the shares of common stock from time to time.
Under this prospectus, the selling stockholders may sell their shares of
common stock in the open market at prevailing market prices or in private
transactions at negotiated prices. They may sell the shares directly, or may
sell them through underwriters, brokers or dealers. Underwriters, brokers or
dealers may receive discounts, concessions or commissions from the selling
stockholders or from the purchaser, and this compensation might be in excess of
the compensation customary in the type of transaction involved. See the section
of this prospectus entitled "Plan of Distribution."
4
RISK FACTORS
Any of the following risks could materially adversely affect our business,
financial condition, or operating results and could negatively impact the value
of our common shares. These risks have been separated into two groups: risks
relating to our operations and risks related to the metals mining industry
generally.
RISKS RELATING TO OUR OPERATIONS
WE ARE THE PRODUCT OF A RECENT MERGER, AND HAVE A LIMITED OPERATING HISTORY ON
WHICH TO EVALUATE OUR POTENTIAL FOR FUTURE SUCCESS.
We were formed as a result of an merger of two separate companies, Nevoro
and Pursuit, in June 2002, and to date have only five complete fiscal quarters
of combined operations. While both Nevoro's wholly-owned subsidiary, AGI, and
Pursuit had a prior operating history, we have only a limited operating history
as a combined company, upon which you can evaluate our business and prospects,
and we have yet to develop sufficient experience regarding actual revenues to be
received from our combined operations. Pursuit had net losses of Cdn$703,000,
Cdn$624,000, and Cdn$2,281,000 for the respective years ended December 31, 2001,
2000 and 1999. The operations of AGI were profitable in 2001, prior to the Plan
of Arrangement. For the nine months ended September 30, 2003 we had a loss of
approximately Cdn$3,535,000 and for the year ended December 31, 2002 we had a
loss of Cdn$4,780,000.
You must consider the risks and uncertainties frequently encountered by
companies in situations such as ours, including but not limited to the ability
to integrate our operations and eliminate duplicative costs. If we are
unsuccessful in addressing these risks and uncertainties, our business, results
of operations and financial condition will be materially and adversely affected.
WE ARE CURRENTLY INVOLVED IN ONGOING LITIGATION WHICH MAY ADVERSELY AFFECT US.
We are engaged in litigation from time to time. On May 29, 2003 we
successfully defended Safeco Insurance Company of America's ("Safeco's") appeal
involving a mining reclamation bond in the amount of US$16,936,130 issued by
Safeco. The purpose of the bond is to provide financial guarantees to the United
States Government to ensure that our Florida Canyon Mine in Pershing County,
Nevada, will be reclaimed in the event we fail to do so. The provision of such
financial guarantee is a condition of our operating permit. Loss of the
litigation would have required us to find replacement bonding in a material
amount. If any claims results in a judgment against us or are settled on
unfavorable terms, our results of operations, financial condition and cash flows
could be materially adversely affected.
WE ARE DEPENDENT ON CERTAIN KEY PERSONNEL.
We are currently dependent upon the ability and experience of R. David
Russell, our President and Chief Executive Officer; R. Llee Chapman, our Vice
President, Chief Financial
5
Officer, Treasurer and Controller; Richard F. Nanna, our Vice President of
Exploration; David K. Young, our Vice President of Business Development; Donald
W. Vagstad, our Vice President, Legal, Secretary and General Counsel; and Wade
Bristol, Vice President, U.S. Operations. There can be no assurance that we will
be able to retain any or all of such officers. We currently do not carry key
person insurance on any of these individuals, and the loss of one or more of
them could have a material adverse effect on our operations. We have entered
into employment agreements with each of Messrs. Russell, Chapman, Nanna, Young,
Vagstad and Bristol, which provide for certain payments upon termination or
resignation resulting from a change of control (as defined in such agreements).
We compete with other companies both within and outside the mining industry in
connection with the recruiting and retention of qualified employees
knowledgeable in mining operations.
RISKS RELATING TO THE METALS MINING INDUSTRY
OUR EARNINGS MAY BE AFFECTED BY METALS PRICE VOLATILITY, SPECIFICALLY THE
VOLATILITY OF GOLD AND ZINC PRICES.
We derive all of our revenues from the sale of gold, silver, lead and zinc
and, as a result, our earnings are directly related to the prices of these
metals. Changes in the price of gold significantly affect our profitability.
Gold prices historically have fluctuated widely, based on numerous industry
factors including:
- industrial and jewelry demand;
- central bank lending, sales and purchases of gold;
- forward sales of gold by producers and speculators;
- production and cost levels in major gold-producing regions; and
- rapid short-term changes in supply and demand because of speculative
or hedging activities.
- Gold prices are also affected by macroeconomic factors, including:
- confidence in the global monetary system;
- expectations of the future rate of inflation (if any);
- the strength of, and confidence in, the U.S. dollar (the currency in
which the price of gold is generally quoted) and other currencies;
- interest rates; and
- global or regional political or economic events, including but not
limited to acts of terrorism.
6
The current demand for, and supply of, gold also affects gold prices. The
supply of gold consists of a combination of new production from mining and of
existing stocks of bullion held by government central banks, public and private
financial institutions, industrial organizations and private individuals. As the
amounts produced by all producers in any single year constitute a small portion
of the total potential supply of gold, normal variations in current production
do not usually have a significant impact on the supply of gold or on its price.
Mobilization of gold stocks held by central banks through lending and official
sales may have a significant adverse impact on the gold price. If revenue from
gold sales declines for a substantial period below the cost of production at any
or all of our operations, we could be required to reduce our reserves and make a
determination that it is not economically feasible to continue either the
commercial production at any or all of our current operations or the exploration
at some or all of our current projects.
Price volatility also appears in the silver, zinc and lead markets. In
particular, our Montana Tunnels Mine has historically produced approximately 45
million pounds of these metals annually, and therefore we are subject to factors
such as world economic forces and supply and demand.
All of the above factors are beyond our control and are impossible for us
to predict. If the market prices for these metals fall below our costs to
produce them for a sustained period of time, we will experience additional
losses and may have to discontinue exploration and/or mining at one or more of
our properties.
The following table sets forth the average daily closing prices of the
following metals for 1980, 1985, 1990, 1995, 1997 and each year thereafter
through December 31, 2003.
1980 1985 1990 1995 1997 1998 1999 2000 2001 2002 2003
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Gold (1)
(per
ounces) US$612.56 US$317.26 US$383.46 US$384.16 US$331.10 US$294.16 US$278.77 US$279.03 US$271.00 US$309.73 US$363.51
Silver
(2) (per
ounces) US$20.63 US$6.14 US$4.82 US$5.19 US$4.90 US$5.53 US$5.25 US$5.00 US$4.39 US$4.60 US$4.91
Lead (3)
(per lb.) US$0.41 US$0.18 US$0.37 US$0.29 US$0.28 US$0.24 US$0.23 US$0.21 US$0.22 US$0.21 US$0.23
Zinc (4)
(per lb.) US$0.34 US$0.36 US$0.69 US$0.47 US$0.60 US$0.46 US$0.49 US$0.51 US$0.40 US$0.37 US$0.38
----------------------
(1) London Final
(2) Handy & Harman
(3) London Metals Exchange -- Cash
(4) London Metals Exchange -- Special High Grade - Cash
On February 24, 2004, the closing prices for gold, silver, zinc and lead were
US$403.90 per ounce, US$6.59 per ounce, US$998.00 per tonne and US$784.00 per
tonne, respectively.
THE VOLATILITY OF METALS PRICES MAY ALSO ADVERSELY AFFECT OUR EXPLORATION
EFFORTS.
7
Our ability to produce gold, silver, zinc and lead in the future is
dependent upon our exploration efforts, and our ability to develop new ore
reserves. If prices for these metals decline, it may not be economically
feasible for us to continue our exploration of a project or to continue
commercial production at some or all of our properties.
OUR ORE RESERVE ESTIMATES MAY NOT BE REALIZED.
We estimate our reserves on our properties as either "proven reserves" or
"probable reserves". Our ore reserve figures and costs are primarily estimates
and are not guarantees that we will recover the indicated quantities of these
metals. We estimate proven reserve quantities through extensive sampling and
testing of sites containing the applicable ore that allow us to have an
established estimate as to the amount of such ore that we expect to extract from
a site. Such sampling and tests are conducted by us and by an independent
company hired by us. Probable reserves are computed with information similar to
that used for proven resources, but the sites for sampling are less extensive,
and the degree of certainty as to the content of a site is less. Reserves are
estimates made by our technical personnel and no assurance can be given that the
estimate of the amount of metal or the indicated level of recovery of these
metals will be realized. Reserve estimation is an interpretive process based
upon available data. Further, reserves are based on estimates of current costs
and prices. Our reserve estimates for properties that have not yet started may
change based on actual production experience. In addition, the economic value of
ore reserves may be adversely affected by:
- declines in the market price of the various metals we mine;
- increased production or capital costs; or
- reduced recovery rates.
Reserve estimates will change as existing reserves are depleted through
production, as well as changes in estimates caused by changing production cost
and/or metals prices. Changes in reserves may also reflect that grades of ore
fed to process may be different from stated reserve grades because of variation
in grades in areas mined, mining dilution, recoveries and other factors.
Reserves estimated for properties that have not yet commenced production may
require revision based on actual production experience.
Declines in the market price of metals, as well as increased production or
capital costs reduced recovery rates, may render ore reserves uneconomic to
exploit unless the utilization of forward sales contracts or other hedging
techniques is sufficient to offset such effects. If our realized price for the
metals we produce, including hedging benefits, were to decline substantially
below the levels set for calculation of reserves for an extended period, there
could be material delays in the exploration of new projects, increased net
losses, reduced cash flow, restatements or reductions in reserves and asset
write-downs in the applicable accounting periods. Reserves should not be
interpreted as assurances of mine life or of the profitability of current or
future operations. No assurance can be given that the estimate of the amount of
metal or the indicated level of recovery of these metals will be realized.
8
WE MAY NOT ACHIEVE OUR PRODUCTION ESTIMATES.
We prepare estimates of future production for our operations. We develop
our plans based on, among other things, mining experience, reserve estimates,
assumptions regarding ground conditions and physical characteristics of ores
(such as hardness and presence or absence of certain metallurgical
characteristics) and estimated rates and costs of mining and processing. Our
actual production may vary from estimates for a variety of reasons, including:
- risks and hazards of the types discussed in this section;
- actual ore mined varying from estimates of grade, tonnage, dilution
and metallurgical and other characteristics;
- short-term operating factors relating to the ore reserves, such as the
need for sequential development of ore bodies and the processing of new or
different ore grades;
- mine failures, pit wall cave-ins or equipment failures;
- natural phenomena such as inclement weather conditions, floods and
earthquakes;
- unexpected labor shortages or strikes;
- restrictions or regulations imposed by government agencies; and
- litigation pursued by governmental agencies or environmental groups.
Each of these factors also applies to sites not yet in production and to
operations that are to be expanded. In these cases, we do not have the benefit
of actual experience in our estimates, and there is a greater likelihood that
the actual results will vary from the estimates.
THE SUCCESS OF OUR EXPLORATION PROJECTS IS UNCERTAIN.
From time to time we will engage in the exploration of new ore bodies. Our
ability to sustain or increase our present level of production is dependent in
part on the successful exploration of such new ore bodies and/or expansion of
existing mining operations. The economic feasibility of such exploration
projects is based upon many factors, including:
- estimates of reserves;
- metallurgical recoveries;
- capital and operating costs of such projects; and
- future gold/metal prices.
9
Exploration projects are also subject to the successful completion of
feasibility studies, issuance of necessary governmental permits and receipt of
adequate financing.
Exploration projects have no operating history upon which to base estimates
of future cash flow. Our estimates of proven and probable ore reserves and cash
operating costs are, to a large extent, based upon detailed geologic and
engineering analysis. We also conduct feasibility studies which derive estimates
of capital and operating costs based upon many factors, including:
- anticipated tonnage and grades of ore to be mined and processed;
- the configuration of the ore body;
- ground and mining conditions;
- expected recovery rates of the gold from the ore; and
- anticipated environmental and regulatory compliance costs.
It is possible that actual costs and economic returns may differ materially
from our best estimates. It is not unusual in the mining industry for new mining
operations to experience unexpected problems during the start-up phase and to
require more capital than anticipated.
ORE EXPLORATION IN GENERAL, AND GOLD EXPLORATION IN PARTICULAR, ARE SPECULATIVE.
Exploration for ore is speculative, and gold exploration is highly
speculative in nature. Exploration projects involve many risks and frequently
are unsuccessful. There can be no assurance that our future exploration efforts
for gold or other metals will be successful. Success in increasing our reserves
will be the result of a number of factors, including the following:
- quality of management;
- geological and technical expertise;
- quality of land available for exploration; and
- capital available for exploration.
If we discover a site with gold or other mineralization, it may take
several years from the initial phases of drilling until production is possible.
Mineral exploration, particularly for gold and silver, is highly speculative in
nature, capital intensive, involves many risks and frequently is nonproductive.
There can be no assurance that our mineral exploration efforts will be
successful. Once mineralization is discovered, it may take a number of years
from the initial phases of drilling until production is possible, during which
time the economic feasibility of production may change. Substantial expenditures
are required to establish ore reserves through drilling, to determine
metallurgical processes to extract the metals from the ore and, in the case of
new
10
properties, to construct mining and processing facilities. As a result of these
uncertainties, no assurance can be given that our exploration programs will
result in the expansion or replacement of existing ore reserves that are being
depleted by current production.
WE ARE DEPENDENT UPON OUR MINING PROPERTIES.
All of our revenues are currently derived from our mining and milling
operations at the Montana Tunnels and Florida Canyon Mines which are low grade
mines. If operations at either of these mines or at any of our processing
facilities are reduced, interrupted or curtailed, as a result of natural
phenomena or otherwise, our ability to generate future revenues and profits
could be materially adversely affected.
HEDGING ACTIVITIES COULD EXPOSE US TO LOSSES.
We have entered into hedging contracts for gold in the aggregate amount of
100,000 ounces involving the use of put and call options. The contracts give the
holder the right to buy and us the right to sell stipulated amounts of gold at
the upper and lower exercise prices, respectively. The contracts continue
through April 25, 2005, with a put option of US$295 per ounce and a call option
of US$345 per ounce. As at February 29, 2004, 68,000 ounces remained outstanding
on these contracts. In the future, we may enter into additional hedging
contracts which may involve outright forward sales contracts, spot-deferred
sales contracts, the use of options which may involve the sale of call options
and the purchase of all these hedging instruments.
WE FACE SUBSTANTIAL GOVERNMENTAL REGULATION.
Safety. Our U.S. mining operations are subject to inspection and regulation
by the Mine Safety and Health Administration of the United States Department of
Labor ("MSHA") under the provisions of the Mine Safety and Health Act of 1977.
The Occupational Safety and Health Administration ("OSHA") also has jurisdiction
over safety and health standards not covered by MSHA. Our policy is to comply
with applicable directives and regulations of MSHA and OSHA.
Current Environmental Laws and Regulations. We must comply with
environmental standards, laws and regulations that may result in greater or
lesser costs and delays depending on the nature of the regulated activity and
how stringently the regulations are implemented by the regulatory authority. The
costs and delays associated with compliance with such laws and regulations could
stop us from proceeding with the exploration of a project or the operation or
future exploration of a mine. Laws and regulations involving the protection and
remediation of the environment and the governmental policies for implementation
of such laws and regulations are constantly changing and are generally becoming
more restrictive. We have made, and expect to make in the future, significant
expenditures to comply with such laws and regulations. These requirements
include regulations under many state and U.S. federal laws and regulations,
including:
11
- the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 ("CERCLA" or "Superfund") which regulates and establishes
liability for the release of hazardous substances;
- the U.S. Endangered Species Act;
- the Clean Water Act;
- the Clean Air Act;
- the U.S. Resource Conservative and Recovery Act ("RCRA");
- the Migratory Bird Treaty Act;
- the Safe Drinking Water Act;
- the Emergency Planning and Community Right-to-Know Act;
- the Federal Land Policy and Management Act;
- the National Environmental Policy Act; and
- the National Historic Preservation Act.
The United States Environmental Protection Agency continues the development
of a solid waste regulatory program specific to mining operations such as ours,
where the mineral extraction and beneficiation wastes are not regulated as
hazardous wastes under RCRA.
Some of our partially owned properties are located in historic mining
districts with past production and abandoned mines. The major historical mine
workings and processing facilities owned (wholly or partially) by us are being
targeted by the Montana Department of Environmental Quality for publicly-funded
cleanup, which reduces our exposure to financial liability. We are participating
with the Montana Department of Environmental Quality under Voluntary Cleanup
Plans on those sites. Our cleanup responsibilities have been substantially
completed at the Corbin Flats CERCLA Facility and at the Gregory Mine site, both
located in Jefferson County, Montana, under programs involving cooperative
efforts with the Montana Department of Environmental Quality. The Corbin Flats
CERCLA Facility was the Montana Department of Environmental Quality's number one
priority site in Jefferson County. The Montana Department of Environmental
Quality has reimbursed us for more than half of our cleanup costs at the Corbin
Flats CERCLA Facility under two Montana State public environmental cleanup
funding programs. However, there can be no assurance that we will continue to
resolve disputed liability for historical mine and ore processing facility waste
sites on such favorable terms in the future. We remain exposed to liability, or
assertions of liability that would require expenditure of legal defense costs,
under joint and several liability statutes for cleanups of historical wastes
that have not yet been completed.
12
Environmental laws and regulations may also have an indirect impact on us,
such as increased costs for electricity due to acid rain provisions of the
United States Clean Air Act Amendments of 1990. Charges by refiners to which we
sell our metallic concentrates and products have substantially increased over
the past several years because of requirements that refiners meet revised
environmental quality standards. We have no control over the refiners'
operations or their compliance with environmental laws and regulations.
Potential Legislation. Changes to the current laws and regulations
governing the operations and activities of mining companies, including changes
in permitting, environmental, title, health and safety, labor and tax laws, are
actively considered from time to time. We cannot predict such changes, and such
changes could have a material adverse impact on our business. Expenses
associated with the compliance with such new laws or regulations could be
material. Further, increased expenses could prevent or delay exploration
projects and could therefore affect future levels of mineral production.
WE ARE SUBJECT TO ENVIRONMENTAL RISKS.
Environmental Liability. We are subject to potential risks and liabilities
associated with pollution of the environment and the disposal of waste rock and
materials that could occur as a result of our mineral exploration and
production. To the extent that we are subject to environmental liabilities, the
payment of such liabilities or the costs that we may incur to remedy
environmental pollution would reduce funds otherwise available to us and could
have a material adverse effect on our financial condition or results of
operations. If we are unable to fully remedy an environmental problem, we might
be required to suspend operations or enter into interim compliance measures
pending completion of the required remedy. The potential exposure may be
significant and could have a material adverse effect on us. We have not
purchased insurance for environmental risks (including potential liability for
pollution or other hazards as a result of the disposal of waste products
occurring from exploration and production) because it is not generally available
at a reasonable price.
Environmental Permits. All of our exploration, development and production
activities are subject to regulation under one or more of the various state,
federal and provincial environmental laws and regulations in Canada and the U.S.
Many of the regulations require us to obtain permits for our activities. We must
update and review our permits from time to time, and are subject to
environmental impact analyses and public review processes prior to approval of
the additional activities. It is possible that future changes in applicable
laws, regulations and permits or changes in their enforcement or regulatory
interpretation could have a significant impact on some portion of our business,
causing those activities to be economically reevaluated at that time. Those
risks include, but are not limited to, the risk that regulatory authorities may
increase bonding requirements beyond our financial capabilities. The posting of
bonding in accordance with regulatory determinations is a condition to the right
to operate under all material operating permits, and therefore increases in
bonding requirements could prevent our operations from continuing even if we
were in full compliance with all substantive environmental laws.
WE FACE STRONG COMPETITION FROM OTHER MINING COMPANIES FOR THE ACQUISITION OF
NEW PROPERTIES.
13
Mines have limited lives and as a result, we may seek to replace and expand
our reserves through the acquisition of new properties. In addition, there is a
limited supply of desirable mineral lands available in the United States and
other areas where we would consider conducting exploration and/or production
activities. Because we face strong competition for new properties from other
mining companies, some of whom have greater financial resources than we do, we
may be unable to acquire attractive new mining properties on terms that we
consider acceptable.
THE TITLES TO SOME OF OUR UNITED STATES PROPERTIES MAY BE DEFECTIVE.
Certain of our mineral rights consist of "unpatented" mining claims created
and maintained in accordance with the U.S. General Mining Law of 1872.
Unpatented mining claims are unique U.S. property interests, and are generally
considered to be subject to greater title risk than other real property
interests because the validity of unpatented mining claims is often uncertain.
This uncertainty arises, in part, out of the complex federal and state laws and
regulations under the General Mining Law. Also, unpatented mining claims are
always subject to possible challenges by third parties or contests by the
federal government. The validity of an unpatented mining claim, in terms of both
its location and its maintenance, is dependent on strict compliance with a
complex body of federal and state statutory and decisional law. In addition,
there are few public records that definitively control the issues of validity
and ownership of unpatented mining claims.
In recent years, the U.S. Congress has considered a number of proposed
amendments to the General Mining Law. Although no such legislation has been
adopted to date, there can be no assurance that such legislation will not be
adopted in the future. If ever adopted, such legislation could, among other
things, impose royalties on gold production from currently unpatented mining
claims located on federal lands. If such legislation is ever adopted, it could
have an adverse impact on earnings from our operations, could reduce estimates
of our reserves and could curtail our future exploration and development
activity on federal lands.
While we have no reason to believe that the existence and extent of any of
our properties are in doubt, title to mining properties are subject to potential
claims by third parties claiming an interest in them. The failure to comply with
all applicable laws and regulations, including failure to pay taxes, carry out
and file assessment work, may invalidate title to portions of the properties
where the mineral rights are not owned by us.
OUR OPERATIONS MAY BE ADVERSELY AFFECTED BY RISKS AND HAZARDS ASSOCIATED WITH
THE MINING INDUSTRY.
Our business is subject to a number of risks and hazards including:
- environmental hazards;
- political and country risks;
- industrial accidents;
14
- labor disputes;
- unusual or unexpected geologic formations;
- cave-ins;
- slope failures and landslides; and
- flooding and periodic interruptions due to inclement or hazardous
weather conditions.
Such risks could result in:
- damage to or destruction of mineral properties or producing
facilities;
- personal injury or death;
- environmental damage;
- delays in mining;
- monetary losses; and
- legal liability.
For some of these risks, we maintain insurance to protect against these
losses at levels consistent with our historical experience and industry
practice. However, we may not be able to maintain this insurance, particularly
if there is a significant increase in the cost of premiums. Insurance against
environmental risks is generally too expensive for us and other companies in our
industry, and, therefore, we do not maintain environmental insurance. Recently
we have experienced several slides at our Montana Tunnels Mine which has
affected our milling operations causing us to lose valuable production time and
consequently reducing our revenues. To the extent we are subject to
environmental liabilities, we would have to pay for these liabilities. Moreover,
in the event that we are unable to fully pay for the cost of remedying an
environmental problem, we might be required to suspend operations or enter into
other interim compliance measures.
OUR PRIOR INTERNATIONAL OPERATIONS ARE SUBJECT TO INHERENT RISKS.
Prior to the Plan of Arrangement, we conducted a portion of our operations
outside of the United States. Pursuit had interests in two mineral exploration
properties located in the Republic of Indonesia. However, due to the political
uncertainty and the economic climate of Indonesia, Pursuit placed its Indonesian
properties on a care and maintenance basis in 1999. Pursuit subsequently wrote
off the value of such properties and no exploration is currently
15
planned with respect thereto. Efforts to joint venture such properties were also
terminated due to the general lack of exploration interest in Indonesia.
In addition, Pursuit had interests in a project in the Philippines known as
the Hinoba-an property. Since 1999, we had been actively seeking a sale or joint
venture of our Philippines property. The ultimate recovery from the Hinoba-an
property was dependent on the price of copper which has been at low levels. In
December of 2001, we executed an agreement with Hinoba Holdings Limited ("HL")
whereby we granted HL the option to acquire all of our rights to the Hinoba-an
copper project. Under the terms of the agreement, Apollo was to receive 7.5% of
HL's treasury shares as consideration for the option, and HL was to assume all
operating expenses relating to the Hinoba-an project in addition to receiving
full operating control of the project. In the event that HL exercised the option
to acquire all of our interest in the project, HL was to pay us additional
consideration of US$5,000,000 within 18 months of having achieved commercial
production. Neither HL nor Pursuit performed all of their obligations under the
agreement. In November 2003, we reached an agreement whereby we received
$100,000 to settle all claims and liabilities that have been asserted or that
may at any time arise or exist among the parties with respect to the Hinoba-an
property. In 2004, Apollo Gold Corporation sold its remaining interest in this
project for Cdn$100,000, and obtained full and final releases from Hinoba
Holdings Limited in connection with the Hinoba-an property.
SELLING STOCKHOLDERS
The shares of common stock to which this prospectus relates are being
registered for reoffers and resales by the selling stockholders who have
acquired or may acquire such shares pursuant to the exercise of options. The
selling stockholders named below may resell all, a portion, or none of such
shares from time to time. The selling stockholders have no obligation to sell
any of their shares.
The selling stockholders are our current or former directors, officers,
employees or consultants. They acquired the common stock pursuant to the
exercise of options granted under our option plans.
The table below sets forth with respect to each selling stockholder, based
upon information available to us as of February 24, 2004: the number of shares
of common stock beneficially owned before and after the sale of the shares
offered hereby; the number of shares to be sold; and the percent of the
outstanding shares of common stock owned before and after the sale of the common
stock offered hereby. The number of shares of common stock beneficially owned by
the selling stockholders is determined in accordance with the rules of the SEC.
At February 24, 2004, we had 73,598,000 shares of common stock outstanding.
Shares of Common
Stock Beneficiary
Shares of Common Shares of Common Owned After Offering
Name of Selling Stock Owned Prior Stock Being Offered -----------------------
Stockholders to Offering (1) (1) Number Percent
--------------- ---------------- ------------------- ---------- -----------
C. Atia 31,280 31,280 0 --
--------------- ---------------- ------------------- ---------- -----------
16
--------------- ---------------- ------------------- ---------- -----------
M. Atia 2,780 2,780 0 --
--------------- ---------------- ------------------- ---------- -----------
E. Berensten 6,951 6,951 0 --
--------------- ---------------- ------------------- ---------- -----------
B. Corigliano 6,951 6,951 0 --
--------------- ---------------- ------------------- ---------- -----------
M. Lee 31,279 31,279 0 --
--------------- ---------------- ------------------- ---------- -----------
J. Levell 2,780 2,780 0 --
--------------- ---------------- ------------------- ---------- -----------
David Robson 100,000 100,000 0 --
--------------- ---------------- ------------------- ---------- -----------
J. Taylor 4,865 4,865 0 --
--------------- ---------------- ------------------- ---------- -----------
W. S. Vaughn 118,412 41,706 76,706 (2) --
--------------- ---------------- ------------------- ---------- -----------
Bill Woods 2,780 2,780 0 --
--------------- ---------------- ------------------- ---------- -----------
Neil Woodyer 118,412 41,706 76,706 (3) --
--------------- ---------------- ------------------- ---------- -----------
TOTAL 395,210 241,798 153,412
--------------- ---------------- ------------------- ---------- -----------
(1) The number and percentage of shares beneficially owned is determined in
accordance with Rule 13d-3 of the Securities Exchange Act of 1934, as amended,
and the information is not necessarily indicative of beneficial ownership for
any other purpose. Under Rule 13d-3, the number of shares beneficially owned
includes any shares as to which a person has sole or shared voting power or
investment power. Shares that a person has the right to acquire within 60 days
of the date of this prospectus are included in the shares owned by that person
and are treated as outstanding for purposes of calculating the ownership
percentage of that person, but not for any other person. The beneficial shares
listed for the selling stockholders include the following number of options
exercisable within 60 days of the date of this prospectus: 153,412.
(2) Shares beneficially owned by Mr. Vaughan include options and/or
warrants to purchase up to 76,706 of our common shares which may be exercised in
whole or in part within 60 days of March 15, 2004.
(3) Shares beneficially owned by Mr. Woodyer include options and/or
warrants to purchase up to 76,706 of our common shares which may be exercised in
whole or in part within 60 days of March 15, 2004.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares.
However, we may receive proceeds of up to $14,814,687.76 if all of the selling
stockholders exercise their options. We intend to use these proceeds, if any,
for working capital and other general corporate purposes.
PLAN OF DISTRIBUTION
We are registering securities on behalf of the selling stockholders and
their successors, including their transferors, pledges or donees. All costs,
expenses and fees in connection with the registration of such securities will be
paid by us. Brokerage commissions and similar selling expenses, if any,
attributable to the sale of securities will be paid by the selling stockholders.
The shares of common stock may be sold in one or more transactions at fixed
prices, at prevailing market prices at the time of sale, at prices related to
the prevailing market prices, at varying prices determined at the time of sale,
or at negotiated prices.
The selling stockholders may sell their shares through any of the following
methods or any combination of these methods:
17
- purchases by a broker or dealer as a principal and resale by that
broker or dealer for its own account under this prospectus;
- ordinary brokerage transactions and transactions in which the broker
solicits purchasers, which may include long or short sales made after the
effectiveness of the registration statement of which this prospectus is a
part;
- cross trades or block trades in which the broker or dealer engaged to
make the sale will attempt to sell the securities as an agent, but may
position and resell a portion of the block as a principal to facilitate the
transaction;
- through the writing of options;
- in other ways not involving market makers or established trading
markets, including direct sales to purchasers or sales made through agents;
any combination of the above transactions; or
- any other lawful method.
In addition, any securities covered by this prospectus which qualify for
sale in compliance with Rule 144 promulgated under the Securities Act of 1933
may be sold under Rule 144 rather than under this prospectus.
The decision to sell any securities is within the sole discretion of the
selling stockholder. Each is free to offer and sell his or her shares at any
time, in a manner and at prices as he or she determines.
Each selling stockholder may sell the shares at a negotiated price or at
the market price or both. He or she may sell his or her shares directly to a
purchaser or they may use a broker. If a broker is used, the selling stockholder
may pay a brokerage fee or commission or he may sell the shares to the broker at
a discount from the market price. The purchaser of the shares may also pay a
brokerage fee or other charge. The compensation to a particular broker-dealer
may exceed customary commissions. We do not know of any arrangements by the
selling stockholder for the sale of any of their shares.
Each selling stockholder and broker-dealer, if any, acting in connection
with sales by the selling stockholder may be deemed to be underwriters within
the meaning of Section 2(11) of the Securities Act, and any commission received
by him or her and any profit on the resale by him or her of the securities may
be deemed to be underwriting discounts and commissions under the Securities Act.
We will make copies of this prospectus available to the selling
stockholders and have informed the selling stockholders of the need to deliver
copies of this prospectus to purchasers at or before the time of any sale of the
shares.
18
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby has been passed
upon for us by Silicon Valley Law Group, San Jose, California, 95112.
EXPERTS
The financial statements of Apollo Gold Corporation as of December 31, 2002
and 2001, and for each of the three years in the period ended December 31, 2002,
incorporated in this prospectus by reference from our Form S-1 have been audited
by Deloitte & Touche LLP, independent auditors, as stated in their report dated
January 27, 2003 (except as to Note 18 which is as of August 11, 2003), which is
incorporated herein by reference, and have been so incorporated in reliance upon
the report of such firm given upon their authority as experts in accounting and
auditing.
The financial statements of Apollo Gold, Inc. for the period from January
1, 2002 through June 24, 2002, incorporated in this prospectus by reference from
our Form S-1 have been audited by Deloitte & Touche LLP, independent auditors,
as stated in their report dated January 27, 2003 (except as to Note 18 which is
as of August 11, 2003), which is incorporated herein by reference, and have been
so incorporated in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
The financial statements of Apollo Gold, Inc. as of December 31, 2001 and
2000, and for each of years then ended and for the period from February 5, 1999
(commencement) through December 31, 1999, incorporated in this prospectus by
reference from our Form S-1 have been audited by LeMaster & Daniels PLLC,
independent auditors, as stated in their report dated August 16, 2002, and have
been so incorporated in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
ADDITIONAL INFORMATION
We are subject to the information requirements of the Securities Exchange
Act of 1934, as amended, and in accordance therewith file reports and other
information with the United States Securities and Exchange Commission ("SEC").
You may read any copy of our reports and other information which we may file
with the SEC at the SEC's public reference room in Washington, D.C. You may call
the SEC at 1-800-SEC-0330 for further information on the public reference rooms.
The SEC also maintains a web site that contains reports, proxy and
information statements and other information regarding registrants such as us
that file electronically with the SEC. The address of this web site is
http://www.sec.gov.
A registration statement on Form S-8 with respect to the shares covered by
this prospectus has been filed with the SEC. This prospectus constitutes our
prospectus that is filed as part of such registration statement with respect to
the sale of the shares by the selling stockholders. As permitted by the rules
and regulations of the SEC, this Prospectus omits certain information contained
in the registration statement and reference is hereby made to the registration
statement for further information with respect to us and our common stock.
We will furnish without charge to each person to whom a copy of this
prospectus is delivered, upon written or oral request, a copy of the information
that has been incorporated by reference into this prospectus (except exhibits,
unless they are specifically incorporated by reference into this prospectus).
You should direct any requests for copies to: Investor Relations, Apollo Gold
Corporation, 4601 DTC Boulevard, Suite 750, Denver, Colorado, 80237-2571,
telephone number, (720) 886-9656.
19
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Company with the SEC are hereby
incorporated by reference in this registration statement:
(a) The Company's Quarterly Reports on Form 10-QSB for the quarterly
periods ended June 30, 2003 and September 30, 2003, as filed with the Securities
and Exchange Commission;
(b) The Company's Registration Statement on Form 10/A (file number
001-31593) filed on August 13, 2003 with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, including any amendment or report
filed for the purpose of updating such Registration Statement;
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 10/A (file number 001-31593) filed on
August 13, 2003 with the Securities and Exchange Commission under the Securities
Act, including any amendment or report filed for the purpose of updating such
description;
(d) All other documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") since the end of the last fiscal year covered by the Form 10/A
referred to in (b) above.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Business Corporations Act (Yukon Territory) imposes liability on
officers and directors for breach of fiduciary duty except in certain specified
circumstances, and also empowers corporations organized under Yukon Territory
law to indemnify officers, directors, employees and others from liability in
certain circumstances such as where the person successfully defended himself on
the merits or acted in good faith in a manner reasonably believed to be in the
best interests of the corporation.
Our By-laws, with certain exceptions, eliminate any personal liability of
our directors and officers to us or our shareholders for monetary damages
arising from such person's performance as a director or officer, provided such
person has acted in accordance with the requirements of
20
the governing statute. Our By-laws also provide for indemnification of directors
and officers, with certain exceptions, to the full extent permitted under law
which includes all liability, damages and costs or expenses arising from or in
connection with service for, employment by, or other affiliation with us to the
maximum extent and under all circumstances permitted by law.
In addition, we maintain officers' and directors' liability insurance with
Liberty Mutual. The policy is effective through May, 2004.
There are presently no material pending legal proceedings to which a
director, officer or employee of ours is a party pertaining to Apollo Gold
Corporation. There is no pending litigation or proceeding involving one of our
directors, officers, employees or other agents as to which indemnification is
being sought, and we are not aware of any pending or threatened litigation that
may result in claims for indemnification by any director, officer, employee or
other agent.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
All of the restricted securities issued by us to the selling stockholders
who are reoffering and reselling such restricted securities pursuant to this
registration statement were issued in reliance upon the exemption from
registration under Section 4(2) and/or Regulation D of the Securities Act
relating to sales by an issuer not involving any public offering. The restricted
securities were issued as incentive compensation to a select group of employees
of the Company, all of whom either received adequate information about the
Company or had access, through employment or other relationships, to adequate
information about the Company including, but not limited to our annual,
quarterly and other reports and statements filed with the Securities and
Exchange Commission pursuant to the Exchange Act. All of the recipients of such
restricted securities have been informed that they are restricted securities and
therefore cannot be resold except pursuant to a valid exemption from
registration under the Securities Act or pursuant to an effective registration
statement under the Securities Act. The issuances of such restricted securities
were made without the use of an underwriter.
ITEM 8. EXHIBITS.
The following Exhibits are filed as part of this registration statement:
Exhibit Number Description of Exhibit
-------------- ----------------------
4.1 Stock Option Incentive Plan of the Company (incorporated by reference to
Exhibit 10.8 to the Company's Registration Statement on Form 10 filed with
the Commission on June 23, 2003).
4.2 Form of Stock Option Agreement under the Stock Option Incentive Plan of the
Company (incorporated by reference to Exhibit 10.9 to the Company's
Registration Statement on Form 10 filed with the Commission on June 23,
2003).
21
4.3 Plan of Arrangement Stock Option Incentive Plan of the Company
(incorporated by reference to Exhibit 10.7 to the Company's Registration
Statement on Form 10 filed with the Commission on June 23, 2003).
5.1 Opinion of Silicon Valley Law Group.
23.1 Consent of Silicon Valley Law Group (included in Exhibit 5.1).
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of LeMaster & Daniels PLLC
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 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 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.
(c) 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 provisions described under Item 6 above, 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
22
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.
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 Denver, State of Colorado, on March 12, 2004.
APOLLO GOLD CORPORATION
By: /s/ R. David Russell
------------------------------
R. David Russell
Chief Executive Officer
By: /s/ R. Llee Chapman
------------------------------
R. Llee Chapman
Chief Financial Officer
23
POWER OF ATTORNEY
We, the undersigned officers and directors of Apollo Gold Corporation,
hereby severally constitute and appoint R. David Russell and R. Llee Chapman,
and each of them singly (with full power to each of them to act alone), our true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution in each of them for him and in his name, place and stead, and in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement (or any other Registration Statement
for the same offering that is to be effective upon filing pursuant to Rule
462(b) under the Securities Act of 1933), and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as full to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them or their or his substitute or substitutes may lawfully 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 the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ R. David Russell Chief Executive Officer March 11, 2004
-------------------- President, and a Director
R. David Russell
/s/ G.W. Thompson Chairman of the Board March 11, 2004
-----------------
G.W. Thompson
/s/ W.S. Vaughn Director March 11, 2004
---------------
W.S. Vaughan
/s/ Robert A. Watts Director March 11, 2004
-------------------
Robert A. Watts
/s/ Charles E. Stott Director March 11, 2004
--------------------
Charles E. Stott
/s/ Gerald J. Schissler Director March 11, 2004
-----------------------
Gerald J. Schissler
/s/ G. Michael Hobart Director March 11, 2004
---------------------
G. Michael Hobart
24
EXHIBIT INDEX
Exhibit Number Description of Exhibit
--------------- ----------------------
4.1* Stock Option Incentive Plan of the Company (incorporated by reference to
Exhibit 10.8 to the Company's Registration Statement on Form 10 filed with
the Commission on June 23, 2003).
4.2* Form of Stock Option Agreement under the Stock Option Incentive Plan of
the Company (incorporated by reference to Exhibit 10.9 to the Company's
Registration Statement on Form 10 filed with the Commission on June 23,
2003).
4.3* Plan of Arrangement Stock Option Incentive Plan of the Company
(incorporated by reference to Exhibit 10.7 to the Company's Registration
Statement on Form 10 filed with the Commission on June 23, 2003).
5.1 Opinion of Silicon Valley Law Group.
23.1 Consent of Silicon Valley Law Group (included in Exhibit 5.1).
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of LeMaster & Daniels PLLC
* Previously filed
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