FORM 6-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Report of Foreign Private Issuer Pursuant to Rule 13a-16 or 15d-16 of the Securities Exchange Act of 1934
For the month of December 2012
Commission File Number: 001-31819
Gold Reserve Inc.
(Exact name of registrant as specified in its charter)
926 W. Sprague Avenue, Suite 200
Spokane, Washington 99201
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F.
Form 20-F
x
Form 40-F
¨
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by
Regulation S-T Rule 101(b)(1):
¨
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by
Regulation S-T Rule 101(b)(7):
¨
Indicate by check mark whether the registrant by furnishing the information contained in this Form is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934.
Yes
¨
No
x
If “Yes” is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b):
The following exhibits are furnished with
this Form 6-K:
99.1
First Supplemental Indenture
99.2
5.5% Senior Subordinated Convertible Note due 2014
Cautionary Statement Regarding
Forward-Looking Statements
The information furnished under
cover of this Form 6-K contains both historical information and forward-looking
statements (within the meaning of Section 27A of the Securities Act, Section
21E of the Exchange Act and the Securities Act (Ontario)) that may state our
intentions, hopes, beliefs, expectations or predictions for the future. In this
report, forward-looking statements are necessarily based upon a number of
estimates and assumptions that, while considered reasonable by us at this time,
are inherently subject to significant business, economic and competitive
uncertainties and contingencies. We caution that such forward-looking
statements involve known and unknown risks, uncertainties and other risks that
may cause our actual financial results, performance, or achievements of the
Company to be materially different from our estimated future results,
performance, or achievements expressed or implied by those forward-looking
statements.
These forward-looking statements
involve risks and uncertainties, as well as assumptions that may never
materialize, prove incorrect or materialize other than as currently
contemplated which could cause our results to differ materially from those
expressed or implied by such forward-looking statements. The words “believe,”
“anticipate,” “expect,” “intend,” “estimate,” “plan,” “may,” “could” and other
similar expressions that are predictions of or indicate future events and
future trends which do not relate to historical matters, identify
forward-looking statements. Any such forward-looking statements are not
intended to give any assurances as to future results. Numerous factors could
cause actual results to differ materially from those in the forward-looking
statements. Due to risks and uncertainties, including the risks and
uncertainties identified in our Annual Information Form, actual results may
differ materially from current expectations.
Numerous factors could cause
actual results to differ materially from those in the forward-looking
statements, including without limitation:
·
outcome of our ICSID arbitration against the Bolivarian Republic of Venezuela;
·
continued servicing or restructuring of our convertible notes or
other obligations as they come due;
·
equity dilution resulting from the conversion of the convertible
notes in part or in whole to common shares;
·
value realized from the disposition of the remaining Brisas
Project related assets;
·
ability to maintain continued listing on the NYSE MKT and/or the TSX
Venture;
·
competition with companies that are not subject to or do not
follow Canadian and U.S. laws and regulations;
·
corruption, uncertain legal enforcement and political and social
instability;
·
regulatory, political and economic risks associated with Venezuela including changes in laws and legal regimes;
·
currency, metal prices and metal production volatility;
·
adverse U.S and Canadian tax consequences;
·
abilities and continued participation of certain key employees;
·
prospects for exploration and development of other mining
projects by us; and
·
risks normally incident to the exploration, development and
operation of mining properties.
Investors are cautioned not to put undue
reliance on forward-looking statements, and investors should not infer that
there has been no change in our affairs since the date of this report that
would warrant any modification of any
forward-looking
statement made in this document, other documents filed periodically with
securities regulators or documents presented on our website. All subsequent
written and oral forward-looking statements attributable to us or persons
acting on our behalf are expressly qualified in their entirety by this notice.
We disclaim any intent or obligation to update publicly or otherwise revise any
forward-looking statements or the foregoing list of assumptions or factors,
whether as a result of new information, future events or otherwise, subject to
our disclosure obligations under applicable rules promulgated by the relevant
securities regulators.
SIGNATURE
Pursuant to the requirements of the
Securities Exchange Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned, thereunto duly authorized.
Dated: December 6, 2012
GOLD RESERVE INC.
(Registrant)
By: /s/
Robert A.
McGuinness
Name: Robert A. McGuinness
Title:
Vice President – Finance & CFO
Exhibit 99.1 First Supplemental Indenture
GOLD RESERVE INC.
as Issuer
AND
U.S. BANK NATIONAL
ASSOCIATION
as Trustee
COMPUTERSHARE TRUST
COMPANY OF CANADA
as Co-Trustee
First Supplemental
Indenture
Dated as of December 4, 2012
to
Indenture
Dated as of May 18, 2007
___________________
5.50% Senior
Subordinated Convertible Notes
Table of Contents
Page
Article One
Relation to Indenture; Definitions...................................................................................................................................................................................................... 2
Section 1.01.
Relation to Indenture...................................................................................................................................................................................................... 2
Section 1.02.
Definitions...................................................................................................................................................................................................................... 2
Section 1.03.
General References........................................................................................................................................................................................................ 2
Article Two
Amendments to the Indenture.......................................................................................................................................................................................................... 2
Section 2.01.
Amendment of Section 1.01 – Additional Defined Terms.................................................................................................................................................. 2
Section 2.02.
Additional Amendment of Section 1.01 – Modified Defined Terms.................................................................................................................................... 3
Section 2.03.
Amendment of Article II – Amendment to Section 2.03 – Form of Reverse of Security...................................................................................................... 4
Section 2.04.
Amendment of Article II – Insertion of New Section 2.05 – Form of Face of Security (Modified Security).......................................................................... 4
Section 2.05.
Amendment of Article II – Insertion of New Section 2.06 – Form of Reverse of Security (Modified Security)..................................................................... 6
Section 2.06.
Amendment of Article III - Insertion of New Section 3.01A – Modified Securities: Title; Amount and Issue of Modified Securities; Principal and Interest... 15
Section 2.07.
Amendment of Article V - Amendment of Sections 5.01 and 5.03.... 16
Section 2.08.
Amendment of Article XIII – Insertion of New Sections 13.08, 13.09, 13.10 and 13.11 – Redemption................................................................................ 17
Section 2.09.
Rights of Holders of Modified Securities........................................................................................................................................................................ 19
Article Three
Miscellaneous............................................................................................................................................................................................................................ 19
Section 3.01.
Certain Trustee Matters................................................................................................................................................................................................ 19
Section 3.02.
Continued Effect........................................................................................................................................................................................................... 19
Section 3.03.
Governing Law............................................................................................................................................................................................................. 20
Section 3.04.
Counterparts................................................................................................................................................................................................................ 20
Section 3.05.
Successors................................................................................................................................................................................................................... 20
Section 3.06.
Headings, Etc............................................................................................................................................................................................................... 20
Section 3.07.
Severability.................................................................................................................................................................................................................. 20
FIRST SUPPLEMENTAL INDENTURE
, dated as of December 4, 2012 (this “
Supplemental
Indenture
”), by and among
GOLD
RESERVE INC.
, a corporation duly organized and existing under the
laws of Yukon, Canada, as Issuer (hereinafter called the “
Company
”),
having its principal office at 926 West Sprague Ave., Suite 200, Spokane, WA
99201 (Facsimile No. (509) 623-1634),
U.S. BANK NATIONAL ASSOCIATION
,
having its Corporate Trust Office at 100 Wall Street, Suite 1600, New York, New
York, 10005, as successor Trustee (hereinafter, “
US Bank
” or the “
Trustee
”)
to The Bank of New York Mellon (f/k/a The Bank of New York) (the “
Predecessor
Trustee
”) and
COMPUTERSHARE TRUST COMPANY OF CANADA
, having its
Corporate Trust Office at 1500 University St., 7th Floor, Montreal, Quebec H3A
3S8, Canada, as successor Co-Trustee (hereinafter, “
Computershare
” or
the “
Co-Trustee
”) to BNY Trust Company of Canada (the “
Predecessor
Co-Trustee
”).
RECITALS OF THE COMPANY
WHEREAS,
the
Company, the Predecessor Trustee and the Predecessor Co-Trustee have heretofore
entered into an Indenture dated as of May 18, 2007 (the “
Indenture
”);
WHEREAS,
pursuant
to a Subordinated Note Restructuring Agreement (“
Restructuring Agreement
”),
as amended and restated, by and among the Company and certain Holders party
thereto (the “
Large Noteholders
”), the parties thereto agreed to
restructure certain of the Securities issued pursuant to the Indenture upon the
terms and conditions set forth in the Restructuring Agreement;
WHEREAS,
(i)
pursuant to the Restructuring Agreement, the Company and the Large
Noteholders agreed, inter alia, to modify the terms of certain Securities held
by the Large Noteholders, and (ii) the Company intends to offer to all other
Holders of Notes (“
Other Holders
”) the ability to restructure the Notes
held by them on the same economic terms as the Notes held by the Large
Noteholders (the transactions contemplated by clauses (i) and (ii) are referred
to as the “
Restructuring
”);
WHEREAS,
Section 11.02 of the Indenture expressly permits the Company and the Trustee to
amend or supplement the Indenture with the consent of the Holders of not less
than a majority in Principal Amount of the Outstanding Securities;
WHEREAS,
the
Large Noteholders hold approximately 98.7% of the Outstanding Securities and
have consented to the amendments reflected in this Supplemental Indenture to
provide for the terms of the Modified Securities, as defined herein, and
certain other matters, pursuant to the Restructuring Agreement;
WHEREAS,
this
Supplemental Indenture includes the form of the Modified Securities to be
issued to such Holders as elect to participate in the Restructuring;
WHEREAS,
pursuant to Section 11.03 of the Indenture, the Trustee is authorized to
execute and deliver this Supplemental Indenture; and
WHEREAS,
for
the purposes hereinabove recited, and pursuant to due corporate action, the
Company has duly determined to execute and deliver to the Trustee this
Supplemental Indenture, and all conditions and requirements necessary to make
this Supplemental Indenture a valid, legal and binding instrument in accordance
with its terms have been satisfied, and the execution and delivery hereof have
been in all respects duly authorized.
NOW, THEREFORE,
in consideration of the premises, agreements and obligations set forth herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE ONE
Relation to Indenture; Definitions
SECTION 1.01. Relation to
Indenture.
This Supplemental Indenture constitutes an integral part of the
Indenture.
SECTION 1.02. Definitions.
For all purposes of this Supplemental Indenture, capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned
thereto in the Indenture.
SECTION 1.03. General References.
Unless otherwise specified or unless the context otherwise requires,
(i) all references in this Supplemental Indenture to Articles and Sections
refer to the corresponding Articles and Sections of this Supplemental Indenture
and (ii) the terms “
herein
,” “
hereof
,” “
hereunder
” and any
other word of similar import refer to this Supplemental Indenture.
ARTICLE TWO
Amendments to the Indenture
The Indenture is hereby amended as set forth below in this Article Two
for the purpose of implementing modifications to certain of the Securities that
Holders elect to restructure pursuant to the Restructuring;
provided
,
however
,
that the amendments effected hereby are being effected solely with respect to
the Securities of the Holders that elect to participate in the Restructuring.
Securities held by Holders that do not elect to participate in the
Restructuring will not be subject to the new terms applicable to Modified
Securities added pursuant to this Supplemental Indenture but will continue to
be subject to the applicable terms of the Indenture.
SECTION
2.01. Amendment of Section 1.01 – Additional Defined Terms.
Section 1.01 of the
Indenture is hereby amended by inserting the following defined terms in the
appropriate alphabetical position:
“Arbitration Award”
means any settlement, award, or other payment made or other
consideration transferred to the Company or any of its affiliates arising out
of, in connection with or with respect to the Arbitration Proceedings,
including, but not limited to the Proceeds received by the Company or its
affiliates from a sale, pledge (except as provided for in Section 9 of the CVR
Certificate), transfer or other disposition, directly or indirectly, of the
Company’s rights with respect to the Arbitration Proceedings.
“Arbitration Proceedings”
means that certain arbitration proceeding commenced
by the Company against the Bolivarian Republic of Venezuela pending before the
International Centre for Settlement of Investment Disputes (“ICSID”) in Gold
Reserve Inc. v. Bolivarian Republic of Venezuela (ICSID Case No.
ARB(AF)/09/1)).
“Contingent Value Right”
means, with respect to each Holder of a Modified
Security, the contingent value right entitling the holder thereof to, among
other rights, the applicable Contingent Value Percentage of
Proceeds received by the Company, net of certain deductions, with respect
to an Arbitration Award and a Mining Data Sale, as further described in the CVR
Certificate.
“CVR Certificate”
means the Contingent Value Right Certificate, substantially in the
form of
Exhibit C
attached to the Restructuring Agreement, issued by the
Company to each Holder of a Modified Security.
“Mining Data”
means the mine data base relating to the Brisas Project which consists of over
900 core drill holes with assay certificates with a calculated proven and
probable 43-101 compliant audited ore reserve.
“
Mining
Data Sale
” means the sale, pledge (except as provided for in Section 9 of
the CVR Certificate), transfer or other disposition, directly or indirectly, of
all or any portion of the Mining Data.
“
Modified Securities
” means the Securities modified pursuant to
Article II of this Supplemental Indenture.
“
Modified
Security
” means a Security modified pursuant to Article II of this
Supplemental Indenture.
“
Notice
of Redemption of Modified Securities
” has the meaning specified in Section
13.10.
“Proceeds”
means the gross amount of all consideration, whether cash, securities,
commodities, bonds or other non-cash consideration, received by the Company
arising out of, in connection with or with respect to an Arbitration Award or
Mining Data Sale, as applicable; provided that, for the purposes of calculating
Proceeds, any consideration received by any affiliate of the Company in
connection with an Arbitration Award or Mining Data Sale, as the case may be,
shall be deemed to have been received by the Company.
SECTION 2.02. Additional Amendment
of Section 1.01 – Modified Defined Terms.
Section 1.01 of the
Indenture is hereby amended by deleting the terms “Global Security”, “‘Holder’
or ‘Securityholder’”, “Issue Date”, “Security” and “Stated Maturity” and
inserting the following definitions:
“Global Security
” means a Security or Modified Security, as applicable, in global form
registered in the Security Register in the name of a Depositary or a nominee
thereof.
“Holder”
or
“Securityholder”
means a Person in whose name a Security or a Modified Security is
registered in the Security Register.
“Issue Date”
means the date the Securities are originally executed and authenticated as set
forth in the Security (except for the Modified Securities) under the Indenture
and as set forth in the Modified Security in this Supplemental Indenture.
“Security”
or
“Securities”
have the respective meanings specified in the first
paragraph of the Recitals of the Company in the Indenture, as modified by
Section 2.09 hereof.
“
Stated Maturity
” when used with respect to any Modified
Security, means June 29, 2014, and when used with respect to any Security that
is not a Modified Security, means June 15, 2022.
SECTION 2.03. Amendment of Article II – Amendment
to Section 2.03 – Form of Reverse of Security
Article II of the
Indenture is hereby amended to modify the first paragraph following the
paragraph entitled “Interest” of Section 2.03 to read in its entirety as
follows:
Interest will be paid to the person in whose name a Security is
registered at the close of business on or, as the case may be, immediately
preceding the Regular Record Date immediately preceding the relevant interest
payment date. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 2.04. Amendment of Article
II – Insertion of New Section 2.05 – Form of Face of Security (Modified
Security).
Article II of the
Indenture is hereby amended by inserting the following as new Section 2.05:
Section 2.05. Form of Face of Security (Modified
Security).
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY
BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A
NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (“
DTC
”), A NEW YORK CORPORATION, TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
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gold reserve inc.
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5.50% Senior Subordinated Convertible Notes due 2014
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No. [●]
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CUSIP NO. 38068N AC2
ISIN US38068NAC20
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U.S. $[●]
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Gold Reserve Inc., a corporation duly organized and validly existing under
the laws of Yukon, Canada (herein called the “
Company
”, which term
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received hereby promises to pay to Cede & Co.,
or registered assigns, the principal sum of [●] United States Dollars
($●) (which amount may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the
Depositary, in accordance with the rules and procedures of the Depositary)] on June
29, 2014. Payment
of the principal of this Security shall be made by wire transfer or check mailed to the address of the Holder of this Security specified in the register of Securities, or, at the option of the Holder of this Security, at the Corporate Trust Office, in such lawful money of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts. The Issue Date of this Security is December 4, 2012.
Reference is made to the further provisions of this Security set forth on the reverse hereof, including, without limitation, provisions giving the Holder of this Security the right to convert this Security in certain circumstances and the obligation or option of the Company to repurchase this Security upon certain events on the terms and subject to the limitations referred to on the reverse hereof and as more fully specified in the Indenture. Such further provisions shall for all purposes have the same effect as though fully set forth at this place.
This Security shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be construed in accordance with and governed by the laws of said State.
This Security shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been manually signed by the Trustee or a duly authorized authenticating agent under the Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
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gold reserve inc.
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By: ____________________________________
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Authorized Signatory
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Attest:
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By: _________________________
Authorized Signatory
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities designated above and referred to in the within-mentioned
Indenture.
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity, but solely as
Trustee
By:
Name:
Title:
[REVERSE OF SECURITY]
SECTION 2.05. Amendment of Article II –
Insertion of New Section 2.06 – Form of
Reverse of
Security (Modified Security).
Article
II of the Indenture is hereby amended by inserting the following as new
Section 2.06:
Section 2.06. Form of Reverse of Security (Modified
Security).
This Security is one of a duly authorized issue of Securities of the
Company, designated as its
5.50% Senior Subordinated Convertible Notes due 2014
(herein called the “
Modified Securities
”), all
issued
or to be issued under and pursuant to an indenture (herein called the “
Original
Indenture
”) dated as of May 18, 2007, among the Company,
U.S.
Bank National Association, as successor to The Bank of New York Mellon
(formerly known as The
Bank of New York), as trustee (herein called the “
Trustee
”),
and Computershare Trust Company of
Canada, as successor to BNY Trust Company of Canada,
as co-trustee (herein called the “
Co-Trustee
”),
as
supplemented by the supplemental indenture (together with the Original
Indenture,
herein called the “
Indenture
”) dated as of December 4, 2012
among the Company, the Trustee and the
Co-Trustee, to which Indenture
and all indentures supplemental thereto reference is hereby made for a
description
of the rights, limitations of rights, obligations, duties and immunities
thereunder of the
Trustee, the Co-Trustee, the Company and the Holders
of the Modified Securities.
Terms used herein
which are defined in the Indenture have the meanings assigned to
them in the Indenture.
The indebtedness evidenced by the Modified Securities is unsecured
indebtedness of the Company and is or will be (1) subordinate in right of
payment to future unsubordinated indebtedness for the construction and
development of the Brisas gold and copper project, and will be effectively
subordinate to the extent of the collateral securing such indebtedness, (2)
subordinate to senior secured bank indebtedness in right of payment, and will
be effectively subordinate to the extent of the collateral securing such
indebtedness, (3) subordinate in right of payment to any guarantee of the
indebtedness described in (1) or (2) by us or any of our subsidiaries for the
period that the guarantee is in effect, (4) equal in right of payment to any of
our other existing and future unsecured and unsubordinated indebtedness, and
(5) senior in right of payment to all of our future subordinated debt. However,
the indebtedness evidenced by the Modified Securities will be effectively
subordinated to all future secured debt to the extent of the security on such
other indebtedness and to all existing and future obligations of our
subsidiaries.
Interest
.
The Company, promises to pay interest on the principal amount of this Modified
Security at the rate of 5.50% per annum. The Company will pay interest
semiannually on June 15 and December 15 of each year commencing on December 15,
2012.
Interest will be paid to the person in whose name a Modified Security
is registered at the close of business on or, as the case may be, immediately
preceding the Regular Record Date immediately preceding the relevant interest
payment date. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
The Holder of this Modified Security after 5:00 p.m., New York City
time, on a Regular Record Date shall be entitled to receive interest, on this
Security on the corresponding interest payment date. The Holder of this
Modified Security after 5:00 p.m., New York City time, on a Regular Record Date
will receive payment of interest payable on the corresponding interest payment
date notwithstanding the
conversion of this Modified
Security at any time after the close of business on such Regular Record Date.
If this Modified Security is surrendered for conversion during the period after
5:00 p.m., New York City time, on any Regular Record Date to 9:00 a.m., New
York City time, on the corresponding interest payment date, it must be
accompanied by payment of an amount equal to the interest that the Holder is to
receive on the Modified Securities. Notwithstanding the foregoing, no such
payment of interest need be made by any converting Holder (i) if the Company
has specified a Redemption Date that is after a Regular Record Date and on or
prior to the corresponding interest payment date, (ii) if the Company has
specified a Fundamental Change Purchase Date during such period, or (iii) to
the extent of any overdue interest existing at the time of conversion of such
Modified Security. Except where this Modified Security is surrendered for
conversion and must be accompanied by payment as described above, no interest
will be payable by the Company on any interest payment date subsequent to the
date of conversion, and delivery of the cash and Common Shares, if applicable,
pursuant to Article XVI of the Indenture, together with any cash payment for
any fractional share, upon conversion will be deemed to satisfy the Company’s
obligation to pay the principal amount of the Modified Securities and accrued
and unpaid interest, if any, to, but not including, the related Conversion
Date.
Method of Payment
. By no later than 10:00 a.m. (New York City time) on the date on
which any principal of or interest, on any Modified Security is due and
payable, the Company shall deposit with the Paying Agent money sufficient to
pay such amount. The Company will pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts. Payments in respect of Modified Securities represented by a
Global Security (including principal and interest) will be made by wire
transfer of immediately available funds to the accounts specified by The
Depository Trust Company. The Company will pay principal of Definitive
Securities at the office or agency designated by the Company in the Borough of
Manhattan, The City of New York. Interest on Definitive Securities will be
payable (i) to Holders having an aggregate principal amount of $5,000,000 or
less, by check mailed to the Holders of these Modified Securities and (ii) to
Holders having an aggregate principal amount of more than $5,000,000, either by
check mailed to each Holder or, upon application by a Holder to the Registrar
not later than the relevant Record Date, by wire transfer in immediately
available funds to that Holder’s account within the United States, which
application shall remain in effect until the Holder notifies, in writing, the
Registrar to the contrary.
Additional Amounts
. The Company shall pay to the Holders such Additional Amounts as may
become payable under Section 12.09 of the Indenture.
Redemption for Tax Reasons
. The Company may, at its option, redeem the
Modified Securities, in whole but not in part, for an amount equal to 100% of
the Principal Amount of the Modified Securities, plus accrued and unpaid
interest (including Additional Amounts, if any), to, but excluding, the
Redemption Date (the “
Redemption Price
”), if the Company has become or
would become obligated to pay to the Holders Additional Amounts (which are more
than a
de minimis
amount) as a result of any amendment or change
occurring after December 4, 2012 in the laws or any regulations of Canada or
any Canadian political subdivision or taxing authority, or any change occurring
after December 4, 2012 in the interpretation or application of any such laws or
regulations by any legislative body, court, governmental agency, taxing
authority or regulatory authority (including the enactment of any legislation
and the publication of any judicial decision or regulatory or administrative
determination); provided the Company cannot avoid these obligations by taking
reasonable measures available to it and that it delivers to the Trustee an
opinion of Canadian legal counsel specializing in taxation and an Officers’
Certificate attesting to such change and obligation to pay Additional Amounts.
The Company will not and will not cause any Paying Agent or the Trustee to
deduct from such Redemption Price any amounts on account of, or in respect of,
any Canadian Taxes other than Excluded Taxes (except in respect of certain
Excluded Holders). In such event, the Company will give the Trustee and the
Holders of the Modified Securities not less than 30 days’ nor more than 60
days’ notice of redemption, except that (i) the Company will not
give notice of redemption earlier than 60 days prior to
the earliest date on or from which it would be obligated to pay any such
Additional Amounts, and (ii) at the time the Company gives the notice, the
circumstances creating its obligation to pay such Additional Amounts remain in
effect.
Upon receiving such notice of redemption, each Holder who does not wish
to have the Company redeem its Modified Securities pursuant to Article XIII of
the Indenture can elect to (i) convert its Modified Securities pursuant to
Article XVI of the Indenture or (ii) not have its Modified Securities redeemed,
provided that no Additional Amounts will be payable on any payment of
interest or principal with respect to the Modified Securities after such
Redemption Date. All future payments will be subject to the deduction or
withholding of any Canadian Taxes required to be deducted or withheld.
Where no such election is made, the Holder will have its Modified
Securities redeemed without any further action. If a Holder does not elect to
convert its Modified Securities pursuant to Article XVI of the Indenture but
wishes to elect to not have its Modified Securities redeemed, such Holder must
deliver to the Company (if the Company is acting as its own Paying Agent), or
to a Paying Agent designated by the Company for such purpose in the notice of
redemption, a written Notice of Election (the “
Notice of Election
”) on
the back of this Modified Security, or any other form of written notice
substantially similar to the Notice of Election, in each case, duly completed
and signed, so as to be received by the Paying Agent no later than the close of
business on a Business Day at least five Business Days prior to the Redemption
Date.
A Holder may withdraw any Notice of Election by delivering to the
Company (if the Company is acting as its own Paying Agent), or to a Paying
Agent designated by the Company in the notice of redemption, a written notice
of withdrawal prior to the close of business on the Business Day prior to the
Redemption Date.
If cash sufficient to pay the Redemption Price of all Modified
Securities (or portions thereof) to be redeemed on the Redemption Date is
deposited with the Paying Agent prior to 10:00 a.m., New York City time, on the
Redemption Date, then on such Redemption Date, interest, including Additional
Amounts, if any, cease to accrue on such Modified Securities or portions
thereof.
Company’s Obligation to Redeem
. The Company shall redeem the Modified Securities
then outstanding, in whole or in part, for an amount of cash equal to 120% of
the Outstanding Principal Amount thereof plus accrued and unpaid interest, upon
(a) the Company’s receipt of Proceeds of an Arbitration Award or (b) the
Company’s receipt of Proceeds from a Mining Data Sale, in each case,
notwithstanding any other notice provision herein, upon twenty (20) days’
notice to the Holders (which notice shall be provided within ten (10) days of
the Company’s receipt of any such Proceeds);
provided
,
however
,
that in respect of any given receipt of Proceeds by the Company, the Company’s
redemption obligations in this paragraph shall be limited to the amount of the
Proceeds received by the Company, and if the amount of Proceeds received is
insufficient to redeem all of the Modified Securities then outstanding, the
Company shall redeem a
pro rata
portion of each Holder’s Securities
determined on the basis of the Principal Amount of Modified Securities held by
each Holder as among all outstanding Modified Securities held by all Holders (
provided
,
further
, that any subsequent receipt of additional Proceeds shall be
applied in a similar manner until such time as the redemption obligations have
been satisfied in full).
Company’s Right to Redeem
. The Company may, at its option, redeem the Modified
Securities, in whole or in part, upon twenty (20) days’ notice to the Holders,
for a number of Common Shares per Modified Security equal to the Principal
Amount of such Modified Security divided by the Conversion Price, plus an
amount of cash equal to any then accrued and unpaid interest, if the closing
sale price of the Company’s Common Shares is equal to or greater than 200% of
the Conversion Price for at least 20
trading days
during any period of thirty (30) consecutive trading days; provided, that such
notice is given by the Company within five (5) days of the end of such thirty
(30) trading day period.
Offer to Purchase By the Company upon a Fundamental
Change
. In the event of a
Fundamental Change with respect to the Company at any time prior to June 29, 2014,
the Company will be required to make an offer to purchase (the “
Fundamental
Change Purchase Offer
”) all outstanding Modified Securities at a purchase
price equal to the Principal Amount plus accrued but unpaid interest, including
Additional Amounts, if any (the “
Fundamental Change Purchase Price
”), up
to, but excluding, the purchase date (the “
Fundamental Change Purchase Date
”).
Subject to the satisfaction of certain conditions set forth in this Modified
Security and in Article XV of the Indenture, the Company will have the right to
pay the Fundamental Change Purchase Price by delivering Common Shares, cash or
a combination of Common Shares and cash, as set forth in the Indenture.
Within 30 Business Days after the occurrence of a Fundamental Change
with respect to the Company, the Company shall mail to the Trustee and all
Holders of the Modified Securities at their addresses shown in the Security
Register, and to beneficial owners of the Modified Securities as may be
required by applicable law, a notice (the “
Fundamental Change Notice
”)
of the occurrence of such Fundamental Change and the Fundamental Change
Purchase Offer arising as a result thereof. The Company shall be required to
purchase Modified Securities in respect of which such offer is accepted by a
Holder no later than 30 Business Days after a Fundamental Change Notice has
been mailed.
To accept the Fundamental Change Purchase Offer, a Holder of Modified
Securities must deliver to the Company (if it is acting as its own Paying
Agent), or to a Paying Agent designated by the Company for such purpose in the
Fundamental Change Purchase Notice and the Trustee, on or before the close of
business on the third Business Day immediately preceding the Fundamental Change
Purchase Date, (i) written notice of acceptance of the Fundamental Change
Purchase Offer in the form set forth in the Fundamental Change Purchase Offer
Acceptance Notice on the back of this Modified Security (“
Fundamental Change
Purchase Notice
”), or any other form of written notice substantially
similar to the Fundamental Change Purchase Notice, in each case, duly completed
and signed, with appropriate signature guarantee, and (ii) such Modified
Securities that the Holder wishes to tender for purchase by the Company
pursuant to the Fundamental Change Offer, duly endorsed for transfer to the
Company.
Holders have the right to withdraw any Fundamental Change Purchase
Notice by delivering to the Paying Agent a written notice of withdrawal in
accordance with the provisions of the Indenture.
Conversion
.
Subject to and in compliance with the provisions of the Indenture (including
without limitation the conditions of conversion of this Modified Security set
forth in Section 16.01 thereof), the Holder hereof has the right, at its option
upon not less than 3 days’ notice to the Company, to convert the Principal
Amount hereof or any portion of such principal which is $1,000 or an integral
multiple thereof, into, subject to Section 16.02 of the Indenture, Common Shares
at the initial conversion rate of 250 Common Shares per $1,000 Principal Amount
of Modified Securities (the “
Conversion Rate
”) (equivalent to a
Conversion Price of $4.00), subject to adjustment in certain events described
in the Indenture. Upon conversion of a Modified Security, the Company will
have the option to deliver Common Shares, cash or a combination of Common
Shares and cash for the Modified Securities surrendered, as set forth in the
Indenture. No fractional shares will be issued upon any conversion, but an
adjustment and payment in cash will be made, as provided in the Indenture, in
respect of any fraction of a share which would otherwise be issuable upon the
surrender of any Modified Securities for conversion. The Trustee will initially
act as Conversion Agent. A Holder may convert fewer than all of such Holder’s
Modified Securities so long as the Modified Securities converted are an
integral multiple of US$1,000 principal amount.
In the event of a deposit or withdrawal of an interest
in this Modified Security, including an exchange, transfer, repurchase or
conversion of this Modified Security in part only, the Trustee, as custodian of
the Depositary, shall make an adjustment on its records to reflect such deposit
or withdrawal in accordance with the rules and procedures of the Depositary.]
If an Event of Default shall occur and be continuing, the Principal
Amount plus accrued but unpaid interest, including Additional Amounts, if any,
may be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Modified Securities under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority in aggregate Principal Amount of the
Outstanding Securities. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate Principal Amount of the
Outstanding Securities, on behalf of the Holders of all the Securities, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Modified Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Modified
Security and of any Modified Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Modified Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Modified Security shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of a receiver
or trustee or for any other remedy thereunder, unless such Holder shall have
previously given the Trustee written notice of a continuing Event of Default
with respect to the Securities, the Holders of not less than 25% in aggregate
Principal Amount of the Outstanding Securities shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default as
Trustee and offered the Trustee reasonable indemnity satisfactory to it, and
the Trustee shall not have received from the Holders of a majority in Principal
Amount of Outstanding Securities a direction inconsistent with such request,
and shall have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The foregoing shall
not apply to any suit instituted by the Holder of this Modified Security for
the enforcement of any payment of said principal hereof on or after the respective
due dates expressed herein or for the enforcement of any conversion right.
No reference herein to the Indenture and no provision of this Modified
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the Principal Amount,
Redemption Price or Fundamental Change Purchase Price of, and interest,
including Additional Amounts, if any, on, this Modified Security at the times,
place and rate, and in the coin, currency or shares, herein prescribed.
Notwithstanding the foregoing, prior to the occurrence of a Fundamental Change,
the Company may, with the consent of the holders of not less than a majority of
the Securities, amend the obligation of the Company to repurchase Securities
upon a Fundamental Change.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Modified Security is registrable in the
Security Register, upon surrender of this Modified Security for registration of
transfer at the office or agency of the Company in The City of New York, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Modified Securities, of authorized denominations and for the same
aggregate Principal Amount, will be issued to the designated transferee or
transferees.
The Modified Securities are issuable only in registered
form in denominations of $1,000 and any integral multiple of $1,000 above that
amount, as provided in the Indenture and subject to certain limitations therein
set forth. Securities are exchangeable for a like aggregate Principal Amount
of Modified Securities of a different authorized denomination, as requested by
the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Modified Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Modified Security is registered as the
owner hereof for all purposes, whether or not this Modified Security be
overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
This Modified Security shall be governed by and
construed in accordance with the laws of the State of New York.
All terms used in this Modified Security that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
ASSIGNMENT
FORM
If you want to assign this Modified Security, fill in the form below
and have your signature guaranteed:
I or we assign and transfer this Modified Security to:
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(Print or type name, address and zip code and social
security or tax ID number of assignee)
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and irrevocably appoint
____________________________________________ agent to transfer this Modified
Security on the books of the Company. The agent may substitute another to act
for him.
Date:
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Signed:
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(Sign exactly as your name appears on the other side
of this Security)
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Signature Guarantee:
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Note:
Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Security Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program (“
STAMP
”)
or such other “signature guarantee program” as may be determined by the
Security Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
CONVERSION
NOTICE
If you want to convert this Modified Security into cash and, if
applicable, Common Shares of the Company, check the box:
To convert only part of this Modified Security, state the Principal
Amount to be converted (which must be $1,000 or an integral multiple of
$1,000):
$_________________________________
If you want the stock certificate and Modified Securities (if any) to
be delivered, made out in another person’s name, fill in the form below:
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(Insert other person’s social security or tax ID
no.)
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(Print or type other person’s name, address and zip
code)
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Date:
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Signed:
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(Sign exactly as your name appears on the other side
of this Security)
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Signature Guarantee:
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Note:
Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Security Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program (“
STAMP
”)
or such other “signature guarantee program” as may be determined by the
Security Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
FUNDAMENTAL
CHANGE PURCHASE OFFER ACCEPTANCE NOTICE
If you elect to have this Modified Security purchased by the Company
pursuant to the applicable provisions of the Indenture, check the box:
If you elect to have only part of this Modified Security purchased by
the Company, state the Principal Amount to be purchased (which must be $1,000
or an integral multiple of $1,000):
$_________________________________
The undersigned hereby accepts the Fundamental Change Purchase Offer
pursuant to the applicable provisions of the Modified Securities.
Date:
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Signed:
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(Sign exactly as your name appears on the other side
of this Security)
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Signature Guarantee:
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Note:
Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Security Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program (“
STAMP
”)
or such other “signature guarantee program” as may be determined by the
Security Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
If Certificated Modified Securities have been issued, the
certificate numbers shall be stated in this notice.
NOTICE
OF ELECTION UPON TAX REDEMPTION
If you elect not to have this Modified Security redeemed by the
Company, check the box:
If you elect to have only part of this Modified Security redeemed by
the Company, state the Principal Amount to be redeemed (which must be $1,000 or
an integral multiple of $1,000):
$_________________________________
Date:
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Signed:
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(Sign exactly as your name appears on the other side
of this Modified Security)
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Signature Guarantee:
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Note:
Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Security Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program (“
STAMP
”)
or such other “signature guarantee program” as may be determined by the
Security Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
SECTION 2.06. Amendment of Article III - Insertion of New
Section 3.01A – Modified Securities: Title; Amount and Issue of Modified
Securities; Principal and Interest.
Article III of the Indenture is hereby amended by inserting the
following Section 3.01A:
Section 3.01A Modified Securities: Title; Amount And
Issue Of Modified Securities; Principal And Interest
. The Modified Securities shall be known and
designated as the “5.50% Senior Subordinated Convertible Notes due 2014” of the
Company. The aggregate Principal Amount of Modified Securities that may be authenticated
and delivered under this Indenture is initially limited to $25,315,000, except
for Modified Securities authenticated and delivered upon registration of,
transfer of, or in exchange for, or in lieu of other Securities pursuant to
Sections 3.03, 3.04, 3.06, 3.07, 3.08, 11.06, 13.05, 15.04 and 16.01. The
Principal Amount shall be payable on June 29, 2014, unless earlier converted,
redeemed or repurchased. The Modified Securities and any other Securities, if
any, will be treated as a single class for purposes of the Indenture, including
waivers, amendments and redemptions;
provided
, that
notwithstanding the foregoing, in any instance in which the Modified Securities
are treated or affected differently from the other Securities, whether directly
or indirectly, including but not limited to waivers, amendments and
redemptions, the Modified Securities shall be treated as a separate class for
purposes of the Indenture.
The Modified Securities shall bear interest at a rate of 5.50% per
year. Interest on the Modified Securities shall accrue from the Issue Date.
Interest shall be payable semiannually in arrears on June 15 and December 15,
beginning December 15, 2012. Interest on the Modified Securities shall be
computed on the basis of a 360-day year of twelve 30-day months. Each rate of
interest which is calculated with reference to a period (the “
Deemed
Interest Period
”) that is less than the actual number of days in the
calendar year of calculation is, for the purposes of the Interest Act (Canada),
equivalent to a rate based on
a calendar year
calculated by multiplying such number of days in the Deemed Interest Period.
The amount of interest payable for any period shorter than a full quarterly
period for which interest is computed, will be computed on the basis of the
actual number of days elapsed in the period.
SECTION 2.07. Amendment of Article
V - Amendment of Sections 5.01 and 5.03
Sections 5.01 and 5.03
of the Indentures are hereby amended to read in their entirety as follows:
Section 5.01 Company’s Right to Redeem; Notices to
Trustee
.
(a) At any time on or after June 16, 2010, and until June 15, 2012 the
Company may redeem the Securities (other than the Modified Securities), in
whole or in part, for cash at a Redemption Price equal to 100% of the Principal
Amount being redeemed plus accrued and unpaid interest, to but excluding the
Redemption Date, if the closing sale price of the Common Shares is equal to or
greater than 150% of the Conversion Price then in effect for at least 20
Trading Days in the period of 30 consecutive Trading Days ending on the Trading
Day prior to the date of mailing of the Notice of Redemption.
(b) Beginning on June 16, 2012 the Company may, at its option, redeem
all or part of the Securities (other than the Modified Securities) for cash at
a Redemption Price equal to 100% of the Principal Amount being redeemed plus
accrued and unpaid interest, to but excluding the Redemption Date.
(c) If the Company elects to redeem Securities, it shall notify the
Trustee in writing at least forty-five (45) days before the Redemption Date
(unless a shorter period is acceptable to the Trustee), but not more than sixty
(60) days before the Redemption Date, of the Redemption Date, the Principal
Amount of Securities to be redeemed, the Conversion Price and the Redemption
Price payable on the Redemption Date. The Company shall give such notice to
the Trustee in accordance with Section 5.03.
(d) In connection with any redemption, the Company shall furnish to
the Trustee an Officers’ Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, to the redemption have been complied
with.
(e) For the avoidance of doubt, the Modified Securities may only be
redeemed in accordance with the provisions of Section 13.08 or Section 13.09
hereof.
Section 5.03 Notice of Redemption
.
(a) At least 30 days but not more than 60 days before a Redemption
Date, with respect to Securities that are not Modified Securities, or on such
date as is set forth in Section 13.08 or 13.09, as applicable, with respect to
Modified Securities (which date shall be the Redemption Date with respect to
such Modified Securities), the Company shall provide a notice of redemption (a
“
Notice of Redemption
”) to the Trustee and to each Holder of Securities
to be redeemed at such Holder’s address kept by the Registrar.
(b) The Notice of Redemption shall identify the Securities to be
redeemed and shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the applicable Conversion Rate as of the Trading
Day prior to the date of the mailing of the Notice of Redemption;
(iv) the name and address of the Paying Agent and the Conversion
Agent;
(v) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(vi) that the Securities called for redemption may be converted at any
time before the close of business on the second Business Day prior to the
Redemption Date;
(vii) that Holders who wish to convert Securities must comply with the
procedures in Section 16.02;
(viii) that, unless the Company defaults in making payment of the
Redemption Price for the Securities called for redemption, interest on the
Securities will cease to accrue on and after the Redemption Date and the only
remaining right of the Holder will be to receive payment of the Redemption
Price upon presentation and surrender to the Paying Agent of the Securities;
(ix) if fewer than all the outstanding Securities are to be redeemed,
the certificate number and Principal Amounts of the particular Securities to be
redeemed; and
(x) the CUSIP number or numbers for the Securities called for
redemption.
(c) At the Company’s request, the Trustee shall give the Notice of
Redemption in the Company’s name and at the Company’s expense.
SECTION 2.08. Amendment of Article
XIII – Insertion of New Sections 13.08, 13.09, 13.10 and 13.11 – Redemption.
Article XIII of the
Indenture is hereby amended by inserting the following Sections 13.08, 13.09,
13.10 and 13.11:
Section 13.08 Mandatory Redemption of Modified
Securities.
The Company shall redeem the Modified Securities then outstanding, in
whole or in part, for an amount of cash equal to 120% of the Outstanding
Principal Amount thereof plus accrued and unpaid interest, upon (a) the
Company’s receipt of Proceeds of an Arbitration Award or (b) the Company’s
receipt of Proceeds from a Mining Data Sale, in each case, notwithstanding any
other notice provision herein, upon twenty (20) days’ notice to the Holders
(which notice shall be provided within ten (10) days of the Company’s receipt
of any such Proceeds);
provided
,
however
, that in respect of any
given receipt of Proceeds by the Company, the Company’s redemption obligations
in this paragraph shall be limited to the amount of the Proceeds received by
the Company, and if the amount of Proceeds received is insufficient to redeem
all of the Modified Securities then outstanding, the Company shall redeem a
pro
rata
portion of each Holder’s Securities (subject to the requirements of
the Depositary) determined on the basis of the Principal Amount of Modified
Securities held by each Holder as among all outstanding Modified Securities
held by all Holders (
provided
,
further
, that any subsequent
receipt of additional Proceeds shall be applied in a similar manner until such
time as the redemption obligations have been satisfied in full).
Section 13.09 Optional
Redemption of Modified Securities.
The Company may, at its option, redeem the Modified Securities, in
whole or in part, upon twenty (20) days’ notice to the Holders, for a number of
Common Shares per Modified Security equal to the Principal Amount of such
Modified Security divided by the Conversion Price, plus an amount of cash equal
to any then accrued and unpaid interest, if the closing sale price of the
Company’s Common Shares is equal to or greater than 200% of the Conversion
Price for at least 20 trading days during any period of thirty (30) consecutive
trading days;
provided
, that such notice is given by the Company
to the persons in whose names a Modified Security is registered in the Security
Register, with a copy to the Trustee, within five (5) days of the end of such
thirty (30) trading day period.
Section 13.10 Notice of Redemption of Modified
Securities.
(a) At least thirty (30) days but not more than sixty (60) days
before a Redemption Date, the Company shall provide a notice of redemption (a
"
Notice of Redemption of Modified Securities
") to the Trustee
and to each Holder of the Modified Securities to be redeemed at such Holder's
address kept by the Registrar.
(b) The Notice of Redemption of Modified Securities shall
identify the Securities to be redeemed and shall state:
(i) the
Redemption Date;
(ii) the price
to be paid for the redemption of the Modified Securities specified in Section
13.08 or 13.09, as applicable;
(iii) the
pro rata
portion of each Holder’s
Securities subject to redemption determined on the basis of the Principal
Amount of Modified Securities held by each Holder as among all outstanding
Modified Securities held by all Holders, if the Modified Securities are being
redeemed pursuant to Section 13.08;
(iv) the
applicable Conversion Rate as of the Trading Day prior to the date of the
mailing of the Notice of Redemption of Modified Securities, if the Modified
Securities are being redeemed pursuant to Section 13.09;
(v) the name and
address of the Paying Agent and the Conversion Agent;
(vi) that the
Modified Securities called for redemption must be surrendered to the Paying
Agent to collect the price to be paid for the redemption of the Modified
Securities specified in Section 13.08 or 13.09, as applicable;
(vii) that the
Modified Securities called for redemption may be converted at any time before
the close of business on the second Business Day prior to the Redemption Date;
(viii) that Holders
who wish to convert Modified Securities must comply with the procedures in
Section 16.02;
(ix) that, unless
the Company defaults in making payment of the price to be paid for the
redemption of the Modified Securities specified in Section 13.08 or 13.09, as
applicable, for the Modified Securities called for redemption, interest on the
Modified Securities will cease to accrue on and after the Redemption Date and
the only remaining right of the Holder will be to
receive
payment of the price to be paid for the redemption of the Modified Securities
specified in Section 13.08 and/or 13.09, as applicable, upon presentation and
surrender to the Paying Agent of the Modified Securities;
(x) if fewer
than all the outstanding Modified Securities are to be redeemed, the
certificate number and Principal Amounts of the particular Modified Securities
to be redeemed; and
(xi) the CUSIP
number or numbers for the Modified Securities called for redemption.
(c) At the Company's request, the Trustee shall give the Notice
of Redemption of the Modified Securities in the Company's name and at the
Company's expense.
Section 13.11 Redemption Price of Modified
Securities.
In the event of any redemption of Modified Securities pursuant to
Section 13.08 or 13.09, the redemption price applicable to such Modified
Securities in accordance with such section shall be deemed to be the
“Redemption Price” of such Modified Securities for purposes of determining the
occurrence of an Event of Default under Section 7.01.
SECTION
2.09. Rights of Holders of Modified Securities.
Except as expressly provided in this Supplemental Indenture, a Holder
of a Modified Security shall have all of the rights of a Holder of a Security
under the Indenture and all references to “Security” shall include Modified
Security and all references to “Securities” shall include Modified Securities
except in relation to the terms of the Company’s 5.50% Senior Subordinated
Convertible Notes due 2022 as set forth in Section 2.03 of Indenture and the
first two paragraphs of Section 3.01 of the Indenture.
ARTICLE THREE
Miscellaneous
SECTION 3.01. Certain Trustee
Matters.
The recitals contained herein shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency
of this Supplemental Indenture or the Securities (including for the avoidance
of doubt the Modified Securities) or the proper authorization or the due
execution hereof or thereof by the Company.
Except as expressly set forth herein, nothing in this Supplemental
Indenture shall alter the duties, rights or obligations of the Trustee set
forth in the Indenture.
The Trustee makes no representation or warranty as to the validity or
sufficiency of the information contained in any prospectus supplement or other
disclosure documentation related to the Notes, except such information which
specifically pertains to the Trustee itself, or any information incorporated
therein by reference.
SECTION
3.02. Continued Effect.
Except as expressly supplemented and amended by this Supplemental
Indenture, the Indenture
shall continue in full force
and effect in accordance with the provisions thereof, and the Indenture is in
all respects hereby ratified and confirmed and the provisions thereof shall be
applicable to the Securities and this Supplemental Indenture. This
Supplemental Indenture and all its provisions shall be deemed a part of the
Indenture in the manner and to the extent herein and therein provided and the
Indenture and this Supplemental Indenture shall henceforth be read and
construed together for all purposes. Any and all references to the
“Indenture”, whether within the Indenture or in any notice, certificate or
other instrument or document, shall be deemed to include a reference to this
Supplemental Indenture (whether or not made), unless the context shall require
otherwise.
SECTION 3.03. Governing Law.
This Supplemental Indenture shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION
3.04. Counterparts.
This instrument may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 3.05. Successors.
All agreements of the Company in this Supplemental Indenture shall bind
its successors. All agreements of the Trustee in this Supplemental Indenture
shall bind its successors.
SECTION 3.06. Headings, Etc.
The headings of the Sections of this Supplemental Indenture have been
inserted for convenience of reference only, are not to be considered a part of
this Supplemental Indenture and shall in no way modify or restrict any of the
terms or provisions hereof.
SECTION 3.07. Severability.
In case any provision of this Supplemental Indenture or the Indenture
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and delivered, all as of the date first written above.
THE COMPANY:
GOLD RESERVE INC.
By:
/s/ Rockne J. Timm
Name: Rockne J. Timm
Title: Chief Executive Officer
TRUSTEE:
U.S. BANK NATIONAL ASSOCIATION
By:
/s/ Beverly A. Freeney
Name: Beverly A. Freeney
Title: Vice-President
CO-TRUSTEE:
COMPUTERSHARE TRUST COMPANY OF CANADA
By:
/s/ Benjamin van de Werve
Name: Benjamin van de Werve
Title: Corporate Trust Officer
By:
/s/ Alessandra Pansera
Name: Alessandra Pansera
Title: Corporate Trust Officer
Exhibit
99.2 5.5% Senior Subordinated Convertible Note due 2014
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY
BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A
NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (“
DTC
”), A NEW YORK CORPORATION, TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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gold reserve inc.
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5.50% Senior Subordinated Convertible Note due 2014
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No. 1
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CUSIP NO. 38068N AC2
ISIN US38068NAC20
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U.S. $25,315,000
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Gold Reserve Inc., a corporation duly organized and validly existing
under the laws of Yukon, Canada (herein called the “
Company
”, which term
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received hereby promises to pay to Cede & Co.,
or registered assigns, the principal sum of Twenty-Five Million Three Hundred
Fifteen Thousand and No/100 United States Dollars ($25,315,000) (which amount
may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depositary, in accordance with the
rules and procedures of the Depositary) on December 4, 2012. Payment of the
principal of this Security shall be made by wire transfer or check mailed to
the address of the Holder of this Security specified in the register of
Securities, or, at the option of the Holder of this Security, at the Corporate
Trust Office, in such lawful money of the United States of America as at the
time of payment shall be legal tender for the payment of public and private
debts. The Issue Date of this Security is December 4, 2012.
Reference is made to the further provisions of this Security set forth
on the reverse hereof, including, without limitation, provisions giving the
Holder of this Security the right to convert this Security in certain
circumstances and the obligation or option of the Company to repurchase this
Security upon certain events on the terms and subject to the limitations
referred to on the reverse hereof and as more fully specified in the
Indenture. Such further provisions shall for all purposes have the same effect
as though fully set forth at this place.
This Security shall be deemed to be a contract made
under the laws of the State of New York, and for all purposes shall be
construed in accordance with and governed by the laws of said State.
This Security shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been manually signed
by the Trustee or a duly authorized authenticating agent under the Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
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gold
reserve inc.
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By:
/s/ Rockne J.
Timm
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Authorized Signatory
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Attest:
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By:
/s/ Robert A. McGuinness
Authorized
Signatory
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities designated above and
referred to in the within-mentioned
Indenture.
U.S. BANK
NATIONAL ASSOCIATION,
not in its individual capacity, but solely as
Trustee
By:
/s/ Beverly A. Freeney
Name: Beverly A. Freeney
Title: Vice President
[REVERSE OF SECURITY]
This Security is one of a duly authorized issue of Securities of the
Company, designated as its
5.50% Senior Subordinated Convertible Notes due 2014
(herein called the “
Modified Securities
”), all
issued
or to be issued under and pursuant to an indenture (herein called the “
Original
Indenture
”) dated as of May 18, 2007, among the Company,
U.S.
Bank National Association, as successor to The Bank of New York Mellon
(formerly known as The
Bank of New York), as trustee (herein called the “
Trustee
”),
and Computershare Trust Company of
Canada, as successor to BNY Trust Company of Canada,
as co-trustee (herein called the “
Co-Trustee
”),
as
supplemented by the supplemental indenture (together with the Original
Indenture,
herein called the “
Indenture
”) dated as of December 4, 2012
among the Company, the Trustee and the
Co-Trustee, to which Indenture
and all indentures supplemental thereto reference is hereby made for a
description
of the rights, limitations of rights, obligations, duties and immunities
thereunder of the
Trustee, the Co-Trustee, the Company and the Holders
of the Modified Securities.
Terms used herein
which are defined in the Indenture have the meanings assigned to
them in the Indenture.
The indebtedness evidenced by the Modified Securities is unsecured
indebtedness of the Company and is or will be (1) subordinate in right of
payment to future unsubordinated indebtedness for the construction and
development of the Brisas gold and copper project, and will be effectively
subordinate to the extent of the collateral securing such indebtedness, (2)
subordinate to senior secured bank indebtedness in right of payment, and will
be effectively subordinate to the extent of the collateral securing such
indebtedness, (3) subordinate in right of payment to any guarantee of the
indebtedness described in (1) or (2) by us or any of our subsidiaries for the
period that the guarantee is in effect, (4) equal in right of payment to any of
our other existing and future unsecured and unsubordinated indebtedness, and
(5) senior in right of payment to all of our future subordinated debt. However,
the indebtedness evidenced by the Modified Securities will be effectively
subordinated to all future secured debt to the extent of the security on such
other indebtedness and to all existing and future obligations of our
subsidiaries.
Interest
.
The Company, promises to pay interest on the principal amount of this Modified
Security at the rate of 5.50% per annum. The Company will pay interest
semiannually on June 15 and December 15 of each year commencing on December 15,
2012.
Interest will be paid to the person in whose name a Modified Security
is registered at the close of business on or, as the case may be, immediately
preceding the Regular Record Date immediately preceding the relevant interest
payment date. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
The Holder of this Modified Security after 5:00 p.m., New York City
time, on a Regular Record Date shall be entitled to receive interest, on this
Security on the corresponding interest payment date. The Holder of this
Modified Security after 5:00 p.m., New York City time, on a Regular Record Date
will receive payment of interest payable on the corresponding interest payment
date notwithstanding the conversion of this Modified Security at any time after
the close of business on such Regular Record Date. If this Modified Security is
surrendered for conversion during the period after 5:00 p.m., New York City
time, on any Regular Record Date to 9:00 a.m., New York City time, on the
corresponding interest payment date, it must be accompanied by payment of an
amount equal to the interest that the Holder is to receive on the Modified
Securities. Notwithstanding the foregoing, no such payment of interest need be
made by any converting Holder (i) if the Company has specified a Redemption
Date that is after a Regular Record Date and on or prior to the corresponding interest
payment date, (ii) if the Company has specified a Fundamental Change Purchase
Date during such period, or (iii) to the extent of any overdue
interest existing at the time of conversion of such
Modified Security. Except where this Modified Security is surrendered for
conversion and must be accompanied by payment as described above, no interest
will be payable by the Company on any interest payment date subsequent to the
date of conversion, and delivery of the cash and Common Shares, if applicable,
pursuant to Article XVI of the Indenture, together with any cash payment for
any fractional share, upon conversion will be deemed to satisfy the Company’s
obligation to pay the principal amount of the Modified Securities and accrued
and unpaid interest, if any, to, but not including, the related Conversion
Date.
Method of Payment
. By no later than 10:00 a.m. (New York City time) on the date on
which any principal of or interest, on any Modified Security is due and
payable, the Company shall deposit with the Paying Agent money sufficient to
pay such amount. The Company will pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts. Payments in respect of Modified Securities represented by a
Global Security (including principal and interest) will be made by wire
transfer of immediately available funds to the accounts specified by The
Depository Trust Company. The Company will pay principal of Definitive
Securities at the office or agency designated by the Company in the Borough of
Manhattan, The City of New York. Interest on Definitive Securities will be
payable (i) to Holders having an aggregate principal amount of $5,000,000 or
less, by check mailed to the Holders of these Modified Securities and (ii) to
Holders having an aggregate principal amount of more than $5,000,000, either by
check mailed to each Holder or, upon application by a Holder to the Registrar
not later than the relevant Record Date, by wire transfer in immediately
available funds to that Holder’s account within the United States, which
application shall remain in effect until the Holder notifies, in writing, the
Registrar to the contrary.
Additional Amounts
. The Company shall pay to the Holders such Additional Amounts as may
become payable under Section 12.09 of the Indenture.
Redemption for Tax Reasons
. The Company may, at its option, redeem the
Modified Securities, in whole but not in part, for an amount equal to 100% of
the Principal Amount of the Modified Securities, plus accrued and unpaid
interest (including Additional Amounts, if any), to, but excluding, the
Redemption Date (the “
Redemption Price
”), if the Company has become or
would become obligated to pay to the Holders Additional Amounts (which are more
than a
de minimis
amount) as a result of any amendment or change
occurring after December 4, 2012 in the laws or any regulations of Canada or
any Canadian political subdivision or taxing authority, or any change occurring
after December 4, 2012 in the interpretation or application of any such laws or
regulations by any legislative body, court, governmental agency, taxing
authority or regulatory authority (including the enactment of any legislation
and the publication of any judicial decision or regulatory or administrative
determination); provided the Company cannot avoid these obligations by taking
reasonable measures available to it and that it delivers to the Trustee an
opinion of Canadian legal counsel specializing in taxation and an Officers’ Certificate
attesting to such change and obligation to pay Additional Amounts. The Company
will not and will not cause any Paying Agent or the Trustee to deduct from such
Redemption Price any amounts on account of, or in respect of, any Canadian
Taxes other than Excluded Taxes (except in respect of certain Excluded
Holders). In such event, the Company will give the Trustee and the Holders of
the Modified Securities not less than 30 days’ nor more than 60 days’ notice
of redemption, except that (i) the Company will not give notice of redemption
earlier than 60 days prior to the earliest date on or from which it would be
obligated to pay any such Additional Amounts, and (ii) at the time the Company
gives the notice, the circumstances creating its obligation to pay such
Additional Amounts remain in effect.
Upon receiving such notice of redemption, each Holder who does not wish
to have the Company redeem its Modified Securities pursuant to Article XIII of
the Indenture can elect to (i) convert its Modified Securities pursuant to
Article XVI of the Indenture or (ii) not have its Modified Securities redeemed,
provided that no Additional Amounts will be payable on any payment of
interest or principal
with respect to the Modified
Securities after such Redemption Date. All future payments will be subject to
the deduction or withholding of any Canadian Taxes required to be deducted or
withheld.
Where no such election is made, the Holder will have its Modified
Securities redeemed without any further action. If a Holder does not elect to
convert its Modified Securities pursuant to Article XVI of the Indenture but
wishes to elect to not have its Modified Securities redeemed, such Holder must
deliver to the Company (if the Company is acting as its own Paying Agent), or
to a Paying Agent designated by the Company for such purpose in the notice of
redemption, a written Notice of Election (the “
Notice of Election
”) on
the back of this Modified Security, or any other form of written notice
substantially similar to the Notice of Election, in each case, duly completed
and signed, so as to be received by the Paying Agent no later than the close of
business on a Business Day at least five Business Days prior to the Redemption
Date.
A Holder may withdraw any Notice of Election by delivering to the
Company (if the Company is acting as its own Paying Agent), or to a Paying
Agent designated by the Company in the notice of redemption, a written notice
of withdrawal prior to the close of business on the Business Day prior to the
Redemption Date.
If cash sufficient to pay the Redemption Price of all Modified
Securities (or portions thereof) to be redeemed on the Redemption Date is
deposited with the Paying Agent prior to 10:00 a.m., New York City time, on the
Redemption Date, then on such Redemption Date, interest, including Additional
Amounts, if any, cease to accrue on such Modified Securities or portions
thereof.
Company’s Obligation to Redeem
. The Company shall redeem the Modified Securities
then outstanding, in whole or in part, for an amount of cash equal to 120% of
the Outstanding Principal Amount thereof plus accrued and unpaid interest, upon
(a) the Company’s receipt of Proceeds of an Arbitration Award or (b) the
Company’s receipt of Proceeds from a Mining Data Sale, in each case,
notwithstanding any other notice provision herein, upon twenty (20) days’
notice to the Holders (which notice shall be provided within ten (10) days of
the Company’s receipt of any such Proceeds);
provided
,
however
,
that in respect of any given receipt of Proceeds by the Company, the Company’s
redemption obligations in this paragraph shall be limited to the amount of the
Proceeds received by the Company, and if the amount of Proceeds received is
insufficient to redeem all of the Modified Securities then outstanding, the
Company shall redeem a
pro rata
portion of each Holder’s Securities
determined on the basis of the Principal Amount of Modified Securities held by
each Holder as among all outstanding Modified Securities held by all Holders (
provided
,
further
, that any subsequent receipt of additional Proceeds shall be
applied in a similar manner until such time as the redemption obligations have
been satisfied in full).
Company’s Right to Redeem
. The Company may, at its option, redeem the Modified
Securities, in whole or in part, upon twenty (20) days’ notice to the Holders,
for a number of Common Shares per Modified Security equal to the Principal
Amount of such Modified Security divided by the Conversion Price, plus an
amount of cash equal to any then accrued and unpaid interest, if the closing
sale price of the Company’s Common Shares is equal to or greater than 200% of
the Conversion Price for at least 20 trading days during any period of thirty
(30) consecutive trading days; provided, that such notice is given by the
Company within five (5) days of the end of such thirty (30) trading day period.
Offer to Purchase By the Company upon a Fundamental
Change
. In the event of a
Fundamental Change with respect to the Company at any time prior to June 29, 2014,
the Company will be required to make an offer to purchase (the “
Fundamental
Change Purchase Offer
”) all outstanding Modified Securities at a purchase
price equal to the Principal Amount plus accrued but unpaid interest, including
Additional Amounts, if any (the “
Fundamental Change Purchase Price
”), up
to, but excluding, the
purchase date (the “
Fundamental
Change Purchase Date
”). Subject to the satisfaction of certain conditions
set forth in this Modified Security and in Article XV of the Indenture, the
Company will have the right to pay the Fundamental Change Purchase Price by delivering
Common Shares, cash or a combination of Common Shares and cash, as set forth in
the Indenture.
Within 30 Business Days after the occurrence of a Fundamental Change
with respect to the Company, the Company shall mail to the Trustee and all
Holders of the Modified Securities at their addresses shown in the Security
Register, and to beneficial owners of the Modified Securities as may be
required by applicable law, a notice (the “
Fundamental Change Notice
”)
of the occurrence of such Fundamental Change and the Fundamental Change
Purchase Offer arising as a result thereof. The Company shall be required to
purchase Modified Securities in respect of which such offer is accepted by a
Holder no later than 30 Business Days after a Fundamental Change Notice has
been mailed.
To accept the Fundamental Change Purchase Offer, a Holder of Modified
Securities must deliver to the Company (if it is acting as its own Paying
Agent), or to a Paying Agent designated by the Company for such purpose in the
Fundamental Change Purchase Notice and the Trustee, on or before the close of
business on the third Business Day immediately preceding the Fundamental Change
Purchase Date, (i) written notice of acceptance of the Fundamental Change
Purchase Offer in the form set forth in the Fundamental Change Purchase Offer
Acceptance Notice on the back of this Modified Security (“
Fundamental Change
Purchase Notice
”), or any other form of written notice substantially
similar to the Fundamental Change Purchase Notice, in each case, duly completed
and signed, with appropriate signature guarantee, and (ii) such Modified
Securities that the Holder wishes to tender for purchase by the Company
pursuant to the Fundamental Change Offer, duly endorsed for transfer to the
Company.
Holders have the right to withdraw any Fundamental Change Purchase
Notice by delivering to the Paying Agent a written notice of withdrawal in
accordance with the provisions of the Indenture.
Conversion
.
Subject to and in compliance with the provisions of the Indenture (including
without limitation the conditions of conversion of this Modified Security set
forth in Section 16.01 thereof), the Holder hereof has the right, at its option
upon not less than 3 days’ notice to the Company, to convert the Principal
Amount hereof or any portion of such principal which is $1,000 or an integral
multiple thereof, into, subject to Section 16.02 of the Indenture, Common
Shares at the initial conversion rate of 250 Common Shares per $1,000 Principal
Amount of Modified Securities (the “
Conversion Rate
”) (equivalent to a
Conversion Price of $4.00), subject to adjustment in certain events described
in the Indenture. Upon conversion of a Modified Security, the Company will
have the option to deliver Common Shares, cash or a combination of Common
Shares and cash for the Modified Securities surrendered, as set forth in the
Indenture. No fractional shares will be issued upon any conversion, but an
adjustment and payment in cash will be made, as provided in the Indenture, in
respect of any fraction of a share which would otherwise be issuable upon the
surrender of any Modified Securities for conversion. The Trustee will
initially act as Conversion Agent. A Holder may convert fewer than all of such
Holder’s Modified Securities so long as the Modified Securities converted are
an integral multiple of US$1,000 principal amount.
In the event of a deposit or withdrawal of an interest in this Modified
Security, including an exchange, transfer, repurchase or conversion of this
Modified Security in part only, the Trustee, as custodian of the Depositary,
shall make an adjustment on its records to reflect such deposit or withdrawal
in accordance with the rules and procedures of the Depositary.
If an Event of Default shall occur and be continuing, the Principal
Amount plus accrued but unpaid interest, including Additional Amounts, if any,
may be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of the rights and obligations
of the Company and the rights of the Holders of the Modified Securities under
the Indenture at any time by the Company and the Trustee with the consent of
the Holders of not less than a majority in aggregate Principal Amount of the
Outstanding Securities. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate Principal Amount of the
Outstanding Securities, on behalf of the Holders of all the Securities, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Modified Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Modified
Security and of any Modified Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Modified Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Modified Security shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of a receiver
or trustee or for any other remedy thereunder, unless such Holder shall have
previously given the Trustee written notice of a continuing Event of Default
with respect to the Securities, the Holders of not less than 25% in aggregate
Principal Amount of the Outstanding Securities shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default as
Trustee and offered the Trustee reasonable indemnity satisfactory to it, and
the Trustee shall not have received from the Holders of a majority in Principal
Amount of Outstanding Securities a direction inconsistent with such request,
and shall have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The foregoing shall
not apply to any suit instituted by the Holder of this Modified Security for
the enforcement of any payment of said principal hereof on or after the
respective due dates expressed herein or for the enforcement of any conversion
right.
No reference herein to the Indenture and no provision of this Modified
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the Principal Amount,
Redemption Price or Fundamental Change Purchase Price of, and interest,
including Additional Amounts, if any, on, this Modified Security at the times,
place and rate, and in the coin, currency or shares, herein prescribed.
Notwithstanding the foregoing, prior to the occurrence of a Fundamental Change,
the Company may, with the consent of the holders of not less than a majority of
the Securities, amend the obligation of the Company to repurchase Securities
upon a Fundamental Change.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Modified Security is registrable in the Security
Register, upon surrender of this Modified Security for registration of transfer
at the office or agency of the Company in The City of New York, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed by, the Holder hereof or
his attorney duly authorized in writing, and thereupon one or more new Modified
Securities, of authorized denominations and for the same aggregate Principal
Amount, will be issued to the designated transferee or transferees.
The Modified Securities are issuable only in registered form in
denominations of $1,000 and any integral multiple of $1,000 above that amount,
as provided in the Indenture and subject to certain limitations therein set forth.
Securities are exchangeable for a like aggregate Principal Amount of Modified
Securities of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Modified Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Modified Security is
registered as the owner hereof for all purposes, whether or not this Modified
Security be overdue, and neither the Company, the Trustee nor any such agent shall
be affected by notice to the contrary.
This Modified Security shall be governed by and
construed in accordance with the laws of the State of New York.
All terms used in this Modified Security that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
ASSIGNMENT
FORM
If you want to assign this Modified Security, fill in the form below
and have your signature guaranteed:
I or we assign and transfer this Modified Security to:
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(Print or type name, address and zip code and social
security or tax ID number of assignee)
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and irrevocably appoint
____________________________________________ agent to transfer this Modified
Security on the books of the Company. The agent may substitute another to act
for him.
Date:
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Signed:
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(Sign exactly as your name appears on the other side
of this Security)
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Signature Guarantee:
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Note:
Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Security Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program (“
STAMP
”)
or such other “signature guarantee program” as may be determined by the
Security Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
CONVERSION
NOTICE
If you want to convert this Modified Security into cash and, if
applicable, Common Shares of the Company, check the box:
To convert only part of this Modified Security, state the Principal
Amount to be converted (which must be $1,000 or an integral multiple of
$1,000):
$_________________________________
If you want the stock certificate and Modified Securities (if any) to
be delivered, made out in another person’s name, fill in the form below:
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(Insert other person’s social security or tax ID
no.)
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(Print or type other person’s name, address and zip
code)
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Date:
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Signed:
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(Sign exactly as your name appears on the other side
of this Security)
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Signature Guarantee:
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Note:
Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Security Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program (“
STAMP
”)
or such other “signature guarantee program” as may be determined by the
Security Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
FUNDAMENTAL CHANGE PURCHASE OFFER ACCEPTANCE NOTICE
If you elect to have this Modified Security purchased by the Company pursuant to the applicable provisions of the Indenture, check the box:
If you elect to have only part of this Modified Security purchased by the Company, state the Principal Amount to be purchased (which must be $1,000 or an integral multiple of $1,000):
$_________________________________
The undersigned hereby accepts the Fundamental Change Purchase Offer pursuant to the applicable provisions of the Modified Securities.
Date:
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Signed:
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(Sign exactly as your name appears on the other side of this Security)
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Signature Guarantee:
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Note:
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“
STAMP
”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
If Certificated Modified Securities have been issued, the certificate numbers shall be stated in this notice.
NOTICE OF ELECTION UPON TAX REDEMPTION
If you elect not to have this Modified Security redeemed by the Company, check the box:
If you elect to have only part of this Modified Security redeemed by the Company, state the Principal Amount to be redeemed (which must be $1,000 or an integral multiple of $1,000):
$_________________________________
Date:
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Signed:
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(Sign exactly as your name appears on the other side of this Modified Security)
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Signature Guarantee:
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Note:
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“
STAMP
”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
12
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