As filed with the United States Securities and Exchange Commission June 1, 2012.
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-3
FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES
UNDER THE TRUST INDENTURE ACT OF 1939
GOLD RESERVE INC.
(Name of Applicant)
926 West Sprague Ave., Suite 200
Spokane, Washington 99201
(509) 623-1500
(Address of Principal Executive Offices)
Securities to be Issued Under the Indenture to be Qualified:
Title of Class
|
|
Amount
*
|
5.50% Senior Subordinated Convertible Notes due 2014
|
|
Up to $102,347,000 aggregate principal amount
|
Approximate date of proposed Offer:
The Offer will commence on June 1, 2012 and will expire at 5:00 p.m., New York City time, on June 29, 2012 unless earlier terminated by the Company.
Name and Address of Agent for Service:
Rockne J. Timm
Chief Executive Officer
Gold Reserve Inc.
926 West Sprague Ave., Suite 200
Spokane, Washington 99201
Tel. (509) 623-1500
With Copies to:
Albert G. McGrath, Jr.
Baker & McKenzie LLP
2300 Trammell Crow Center
2001 Ross Avenue
Dallas, TX 75201
Tel. (214) 978-3000
Fax. (214) 978-3099
* The actual
aggregate
principal amount of 5.50% Senior Subordinated Convertible Notes due 2014 to be issued pursuant to the Supplemental Indenture (defined below) may be less and depends upon the aggregate amount of the 5.50% Senior Subordinated Convertible Notes due 2022 that are tendered as described in Item 2 herein.
ITEM 1. GENERAL INFORMATION.................................................................................................................................................................. 1
ITEM 2. SECURITIES ACT EXEMPTION APPLICABLE................................................................................................................................ 1
ITEM 3. AFFILIATES............................................................................................................................................................................................ 1
ITEM 4. DIRECTORS AND EXECUTIVE OFFICERS....................................................................................................................................... 2
ITEM 5. PRINCIPAL OWNERS OF VOTING SECURITIES............................................................................................................................. 2
ITEM 6. UNDERWRITERS................................................................................................................................................................................... 3
ITEM 7. CAPITALIZATION................................................................................................................................................................................ 3
ITEM 8. ANALYSIS OF INDENTURE PROVISIONS....................................................................................................................................... 3
ITEM 9. OTHER OBLIGORS................................................................................................................................................................................ 4
ITEM 1. GENERAL INFORMATION.
(a) GOLD RESERVE INC. (the “Company” or “Applicant”) is a corporation.
(b) The
Company
is incorporated under the laws of Yukon, Canada.
ITEM 2. SECURITIES ACT EXEMPTION APPLICABLE.
Upon the terms set forth in the Amended Company Repurchase Notice and Notice of Offer for Alternative Election (the “Amended Notice”) and the related letter of transmittal filed by the Company on Amendment No. 1 to Schedule TO on June 1, 2012, the Company is offering (the “Offer”) to restructure (the “Proposed Restructuring”) up to $102,347,000 aggregate principal amount of its outstanding 5.50% Senior Subordinated Convertible Notes due 2022 (the “Notes”) for the following consideration:
Under the terms of the Subordinated Notes Restructuring Agreement dated May 25, 2012, the Company and holders of approximately 87.8% of the outstanding Notes (the “Large Noteholders”) agreed to modify the Notes held by the Large Noteholders that are not put to the Company pursuant to the Right of Repurchase described in the Amended Notice upon the following terms for each $1,000 in principal amount, plus any accrued and unpaid interest on the Notes through the date on which the Proposed Restructuring is consummated, subject to approval of the Company’s shareholders:
-
$700 principal amount of Notes that are not put to the Company shall be exchanged for (i) USD $200.00 in cash, (ii) 147.06 Common Shares of the Company, and (iii) a pro rata portion of the aggregate 5% Contingent Value Right payable in respect of all Subject Notes; and
-
$300 principal of Notes that are not put to the Company shall remain outstanding and represent the same continuing indebtedness, subject to the amended terms set forth in a Supplemental Indenture (or other Amended Note Documentation, as defined in the Restructuring Agreement) that will include the terms described in Item 8 (as modified, such Notes are the “Modified Notes”).
Each Large Noteholder will be entitled to a Contingent Value Right that will entitle the Large Noteholders to receive, net of certain deductions, a pro rata portion of and aggregate amount of 5% of the proceeds actually received by the Company with respect to (i) the Arbitration Award and (ii) the Mining Data Sale, net of certain deductions.
The cash, Common Shares, Modified Notes and Contingent Value Rights to be delivered by the Company if the Proposed Restructuring is approved by the Shareholders is collectively referred to as the “Offer Consideration.”
The aggregate principal amount of the Modified Notes actually issued pursuant to the Offer will depend on the amount of Notes validly tendered and accepted pursuant to the Offer. If the Offer is completed, the Modified Notes will be governed by the supplemental indenture (the “Supplemental Indenture”) to be qualified under this Application for Qualification on Form T-3 which supplements the Indenture, dated May 18, 2007 (the “Indenture”), by and among the Company and The Bank of New York Mellon, as successor in interest to The Bank of New York, as Trustee and the Co-Trustee named therein, (the “Trustee”).
The Company intends to make the Offer in reliance on the exemption from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”), afforded by Section 3(a)(9) thereof, based upon the following facts:
·
The
Common Shares, Modified Notes and Contingent Value Rights
will be offered by the Company to its existing security holders exclusively and solely for outstanding Notes.
·
No sales of securities of the same class as the Notes have been or are to be made by the Company or by or through an underwriter at or about the same time as the Offer for which the exemption is claimed.
·
No
consideration
has been, or is to be, given, directly or indirectly, to any person in connection with such Offer, except for payment of (i) the fees and expenses of legal advisors for their legal services, (ii) the fees of the agent, for its acceptance and exchange services in relation to the Offer, (iii) fees charged by the trustee under the Indenture for its services as trustee, (iv)
payments to the Company
’s
directors and employees who agree to execute limited waivers of their change in control agreements and (v) the cash consideration payable to the Noteholders as part of the Offer Consideration.
·
No holder of Notes has made or will be requested to make any cash payment in connection with the Offer other than the payment of any applicable withholding or other taxes in accordance with the terms of the Offer.
AFFILIATIONS
ITEM 3. AFFILIATES.
For purposes of this Application only, the Company’s directors and executive officers may be deemed to be “affiliates” of the Company. See Item 4 “Directors and Executive Officers” for a list of the Company’s directors and executive officers, which is incorporated herein by reference.
The following is a list of subsidiaries of the Company that may be deemed affiliates of the Company as of the date of this Application. The Company owns 100% of the outstanding capital stock of each subsidiary, directly or through a wholly-owned subsidiary.
Name of Affiliate
|
|
Jurisdiction of Incorporation
|
|
Percentage
Owned by Company
|
Gold Reserve Corporation
|
|
Montana, USA
|
|
100.00%
|
Gold Reserve de Barbados Limited
|
|
Barbados
|
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100.00%
|
Gold Reserve de Venezuela , CA
|
|
Venezuela
|
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100.00%
|
Compania Aurifera Brisas del Cuyuni, SA
|
|
Venezuela
|
|
100.00%
|
GR El Choco Limited
|
|
Barbados
|
|
100.00%
|
GRI Minerales El Choco CA
|
|
Venezuela
|
|
100.00%
|
For purposes of this Application only, the principal owners of voting securities may be deemed to be “affiliates” of the Company. See Item 5 “Principal Owners of Voting Securities” for a list of the principal owners of the Company’s Common Stock, which is incorporated herein by reference.
MANAGEMENT AND CONTROL
ITEM 4. DIRECTORS AND EXECUTIVE OFFICERS.
The following table sets forth the names of, and all offices held by, all executive officers and directors (as defined in Sections 303(5) and 303(6) of the Trust Indenture Act of 1939, respectively, of the Company. The mailing address for each executive officer and director listed below is: c/o Gold Reserve Inc., 926 West Sprague Ave., Suite 200, Spokane, Washington 99201.
Name
|
Position Held
|
Rockne J. Timm
|
Chief Executive Officer and Director
|
A. Douglas Belanger
|
President and Director
|
Robert A. McGuinness
|
Vice President Finance and Chief Financial Officer
|
Mary E. Smith
|
Vice President Administration and Secretary
|
James P. Geyer
|
Director
|
James H. Coleman
|
Q.C., Director
|
Patrick D. McChesney
|
Director
|
Chris D. Mikkelsen
|
Director
|
Jean Charles Potvin
|
Director
|
ITEM 5. PRINCIPAL OWNERS OF VOTING SECURITIES.
The following sets forth information as to each person owning 10 percent or more of the voting securities of the Company as of the date of this Application.
Shareholder Name and Address
|
Number of Common Shares Held
|
Percentage of Common Shares Issued
(3)
|
|
West Face Capital, Inc.
2 Bloor Street East, Suite 810
P.O. Box 85
Toronto, Ontario M4W 1A8
|
9,630,000
(1)
|
16.0%
|
Steelhead Partners, LLC
1301 First Avenue, Suite 201
Seattle, WA 98101
|
11,707,979
(2)
|
19.4%
|
(1) Based on Schedule 13D/A filed by West Face Capital, Inc. with the Securities and Exchange Commission (“SEC”) on June 30, 2010. West Face Capital, Inc. reports an additional 1,754,509 shares related to our convertible notes that it holds as being beneficially owned for purposes of its Schedule 13D/A. However, as the Company has the option to deliver cash for any such convertible notes, we do not include that number in this table.
(2) The number of Common Shares held is based on Schedule 13G filed by Steelhead Partners, LLC filed with the SEC on February 9, 2012. Steelhead Partners, LLC reports an additional 7,555,969 shares related to our convertible notes. As the Company has the option to deliver cash for any such convertible notes, these shares are not considered as being beneficially owned and therefore are not included in this table.
(3) Based on the number of shares outstanding on April 19, 2012.
UNDERWRITERS
ITEM 6. UNDERWRITERS.
(a) J.P. Morgan Securities Inc. and RBC Dominion Securities Inc. acted in May 2007 as principal underwriters in connection with the Company’s underwritten public offering of the Notes.
(b) There are no principal underwriters of the Modified Notes proposed to be offered in the Offer.
The Company intends to retain The Bank of New York Mellon as the “Agent” in connection with the Offer. The Company will answer questions with respect to the Offer solely by reference to the terms of the Amended Notice. Neither the Company nor the Agent makes any recommendation as to whether to exchange or refrain from tendering the Notes. The Agent, once retained, will be paid reasonable fixed fees directly by the Company for their services.
CAPITAL SECURITIES
ITEM 7. CAPITALIZATION.
(a) As of May 31, 2012 there were 59,788,972 Class A common shares and 500,236 Class B common shares outstanding for a total of 60,289,208 shares outstanding. The Company may issue an unlimited number of shares of Class A and Class B common shares. As of May 16, 2012, there were $102,347,000 aggregate principal amount of Notes outstanding.
(b)
Each holder of Common Stock is entitled to one vote for each share of Common Stock owned of record on any resolution to be passed at a meeting of shareholders.
INDENTURE SECURITIES
ITEM 8. ANALYSIS OF INDENTURE PROVISIONS.
The Modified Notes will be issued under a Supplemental Indenture to be dated on or about June 29, 2012 and to be entered into between the Company and The Bank of New York Mellon, as trustee, or another trustee if The Bank of New York Mellon does not agree to serve as trustee (the “Trustee”). The following general description of certain provisions of the Supplemental Indenture is qualified in its entirety by reference to the form of Supplemental Indenture filed as Exhibit T3C hereto and incorporated by reference herein. Capitalized terms used in this Item 8 and not defined herein have the meanings assigned to them in the Supplemental Indenture.
-
the maturity date will be June 29, 2014;
-
the Conversion Rate will be increased from 132.6260 shares of Common Stock per $1,000 in principal amount of Modified Notes (equivalent to a Conversion Price of $7.54) to 250 shares of Common Stock per $1,000 in principal amount of Modified Notes (equivalent to a Conversion Price of $4.00);
-
the Holder may convert its Modified Notes to shares of Common Stock at the Conversion Price at any time after the date Closing Date upon 3 days prior written notice to the Company;
-
the Company shall have a mandatory obligation to redeem the Modified Notes then outstanding, in whole or in part, for an amount of cash equal to 120% of the face value thereof plus accrued and unpaid interest upon (i) the Company’s receipt of payment of a settlement or award with respect to its pending arbitration proceedings related to Venezuela’s expropriation of the Brisas Project (any such settlement or award, the “Arbitration Award”) or (ii) the Company’s receipt of proceeds from sale or other disposition of its mining data (the “Mining Data Sale”), in each case with 20 days’ notice to the Large Noteholders; provided, however, that the Company’s redemption obligations in (i) and (ii) shall be limited to the amount of the proceeds received by the Company (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);
-
the Company may redeem the Modified Notes, in whole or in part upon 20 days’ notice to the Large Noteholders, for shares of Common Stock at the conversion price plus cash for any accrued and unpaid interest if the closing sale price of its common shares is equal to or greater than 200% of the conversion price for at least 20 trading days in the period of 30 consecutive trading days (and, for the avoidance of doubt with respect to the Modified Notes, this provision shall override the provision in the Indenture that permits the Company to redeem the Notes at any time after June 16, 2012); and
-
unless previously converted by the Large Holder, or redeemed by the Company, the Company may satisfy the Notes, at maturity, by payment of cash in an amount equal to the principal plus accrued and unpaid interest thereon.
The other terms of the Indenture are described in the Form F-10 filed with the Securities and Exchange Commission on May 14, 2007 under Registration No. 333-142656, the terms of which are incorporated herein by reference.
ITEM 9. OTHER OBLIGORS.
None
CONTENTS OF APPLICATION FOR QUALIFICATION
(a)
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Pages Numbered 1 to 6 numbered consecutively.
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(b)
|
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The statement of eligibility and qualification on Form T-1 of the Trustee under the Indenture to be qualified
(
included as Exhibit T3G hereto
)
.
|
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(c)
|
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The following exhibits in addition to those filed as part of the Form T-1 statement of eligibility and qualification of the Trustee:
|
Exhibit No.
|
|
Description
|
T3A
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Restated Articles of Incorporation of the Company filed as Exhibit 3.1 to the Proxy Statement/Joint Prospectus included as a part of the Company’s Registration Statement on Form S-4 (Registration No. 333-68061) filed with the SEC on November 27, 1998 and incorporated by reference herein
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T3B
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Bylaws of the Company filed as Exhibit 3.2 to the Proxy Statement/Joint Prospectus included as a part of the Company’s Registration Statement on Form S-4 (Registration No. 333-68061) filed with the SEC on November 27, 1998 and incorporated by reference herein
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T3C(1)
|
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Indenture, dated May 18, 2007, by and among GR, and The Bank of New York Mellon, as successor in interest to The Bank of New York, as Trustee and the Co-Trustee named therein, incorporated by reference to Exhibit 7.1 to GR’s Registration Statement on Form F-10 (File 333-142944) filed with the U.S. SEC on May 14, 2007
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T3C(2)
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Form of Supplemental Indenture
|
T3E(1)
|
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Amended Company Repurchase Notice and Notice of Offer of Alternative Election of its 5.50% Senior Subordinated Convertible Notes due 2022, dated June 1, 2012. Incorporated by reference to Exhibit (a)(1)(A) of the Company’s Tender Offer Statement on Amendment No. 1 to Schedule TO dated June 1, 2012.
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T3E(2)
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Form of Repurchase Notice (Put Option). Incorporated by reference to Exhibit (a)(1)(B) of the Company’s Tender Offer Statement on Amendment No. 1 to Schedule TO dated June 1, 2012.
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T3E(3)
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Form of Notice of Withdrawal (Put Option). Incorporated by reference to Exhibit (a)(1)(C) of the Company’s Tender Offer Statement on Schedule TO dated June 1, 2012.
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T3E(4)
|
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Substitute Form W-9 (Put Option). Incorporated by reference to Exhibit (a)(1)(D) of the Company’s Tender Offer Statement on Amendment No. 1 to Schedule TO dated June 1, 2012.
|
T3E(5)
|
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Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 (Put Option). Incorporated by reference to Exhibit (a)(1)(E) of the Company’s Tender Offer Statement on Amendment No. 1 to Schedule TO dated June 1, 2012.
|
T3E(6)
|
|
Letter of Transmittal (Alternative Election). Incorporated by reference to Exhibit (a)(1)(F) of the Company’s Tender Offer Statement on Amendment No. 1 to Schedule TO dated June 1, 2012.
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T3E(7)
|
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Form of Notice of Withdrawal (Alternative Election). Incorporated by reference to Exhibit (a)(1)(F) of the Company’s Tender Offer Statement on Amendment No. 1 to Schedule TO dated June 1, 2012.
|
T3E(8)
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Press Release, dated May 17, 2012. Incorporated by reference to Exhibit (a)(5)(G) of the Company’s Tender Offer Statement on Amendment No. 1 to Schedule TO dated June 1, 2012.
|
T3E(9)
|
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Press Release, dated June 1, 2012. Incorporated by reference to Exhibit (a)(5)(H) of the Company’s Tender Offer Statement on Amendment No. 1 to Schedule TO dated June 1, 2012.
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Pursuant to the requirements of the Trust Indenture Act of 1939, the applicant, GOLD RESERVE INC., a corporation organized and existing under the laws of Yukon, Canada, has duly caused this application to be signed on its behalf by the undersigned, thereunto duly authorized, and its seal to be hereunto affixed and attested, all in the city of Spokane and State of Washington, on the 1
st
day of June, 2012.
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GOLD RESERVE INC.
|
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By:
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/s/ Rockne J. Timm
|
|
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Name: Rockne J. Timm
|
|
|
Title: Chief Executive Officer
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EXHIBIT INDEX
Exhibit No.
|
|
Description
|
T3A
|
|
Restated Articles of Incorporation of the Company filed as Exhibit 3.1 to the Proxy Statement/Joint Prospectus included as a part of the Company’s Registration Statement on Form S-4 (Registration No. 333-68061) filed with the SEC on November 27, 1998 and incorporated by reference herein
|
T3B
|
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Bylaws of the Company filed as Exhibit 3.2 to the Proxy Statement/Joint Prospectus included as a part of the Company’s Registration Statement on Form S-4 (Registration No. 333-68061) filed with the SEC on November 27, 1998 and incorporated by reference herein
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T3C(1)
|
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Indenture, dated May 18, 2007, by and among GR, and The Bank of New York Mellon, as successor in interest to The Bank of New York, as Trustee and the Co-Trustee named therein, incorporated by reference to Exhibit 7.1 to GR’s Registration Statement on Form F-10 (File 333-142944) filed with the U.S. SEC on May 14, 2007
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T3C(2)
|
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Form of Supplemental Indenture
|
T3E(1)
|
|
Amended Company Repurchase Notice and Notice of Offer of Alternative Election of its 5.50% Senior Subordinated Convertible Notes due 2022, dated June 1, 2012. Incorporated by reference to Exhibit (a)(1)(A) of the Company’s Tender Offer Statement on Amendment No. 1 to Schedule TO dated June 1, 2012.
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T3E(2)
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Form of Repurchase Notice (Put Option). Incorporated by reference to Exhibit (a)(1)(B) of the Company’s Tender Offer Statement on Amendment No. 1 to Schedule TO dated June 1, 2012.
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T3E(3)
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Form of Notice of Withdrawal (Put Option). Incorporated by reference to Exhibit (a)(1)(C) of the Company’s Tender Offer Statement on Schedule TO dated June 1, 2012.
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T3E(4)
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Substitute Form W-9 (Put Option). Incorporated by reference to Exhibit (a)(1)(D) of the Company’s Tender Offer Statement on Amendment No. 1 to Schedule TO dated June 1, 2012.
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T3E(5)
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Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 (Put Option). Incorporated by reference to Exhibit (a)(1)(E) of the Company’s Tender Offer Statement on Amendment No. 1 to Schedule TO dated June 1, 2012.
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T3E(6)
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Letter of Transmittal (Alternative Election). Incorporated by reference to Exhibit (a)(1)(F) of the Company’s Tender Offer Statement on Amendment No. 1 to Schedule TO dated June 1, 2012.
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T3E(7)
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Form of Notice of Withdrawal (Alternative Election). Incorporated by reference to Exhibit (a)(1)(F) of the Company’s Tender Offer Statement on Amendment No. 1 to Schedule TO dated June 1, 2012.
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T3E(8)
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Press Release, dated May 17, 2012. Incorporated by reference to Exhibit (a)(5)(G) of the Company’s Tender Offer Statement on Amendment No. 1 to Schedule TO dated June 1, 2012.
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T3E(9)
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Press Release, dated June 1, 2012. Incorporated by reference to Exhibit (a)(5)(H) of the Company’s Tender Offer Statement on Amendment No. 1 to Schedule TO dated June 1, 2012.
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Exhibit T3C
GOLD RESERVE INC.
as Issuer
AND
THE BANK OF NEW YORK MELLON
(successor to THE BANK OF NEW YORK)
as Trustee
BNY TRUST COMPANY OF CANADA
as Co-Trustee
First Supplemental Indenture
to
Indenture
Dated as of May 18, 2007
___________________
5.50% Senior Subordinated Convertible Notes due 2014
FIRST SUPPLEMENTAL INDENTURE
, dated as of June [29], 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) and
THE
BANK OF NEW YORK MELLLON
(as successor to
the bank of new york
)
, a
New York banking corporation, as Trustee (herein called the “
Trustee
”)
and
BNY TRUST COMPANY OF CANADA
, as Co-Trustee.
RECITALS OF THE COMPANY
WHEREAS,
the Company and the 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
”) entered into on May
25, 2012 by and among the Company, Steelhead Partners, LLC (“
Steelhead
”),
West Face Capital Inc. (“
West Face
”) and Greywolf Capital Management, LP
(“
Greywolf
”), 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,
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 (as defined in the Indenture);
WHEREAS,
Steelhead, West Face and Greywolf (collectively, the
“
Large Noteholders
”) hold greater than a majority in Principal Amount of
the Outstanding Securities;
WHEREAS,
pursuant to the Restructuring
Agreement, the Company and the Large Noteholders agreed, inter alia, to modify
the terms of certain Securities held by the Holders who elect to participate in
the restructuring (the “
Restructuring
”) contemplated by the
Restructuring Agreement;
WHEREAS,
attached as Schedule A to this Supplemental Indenture
is a list of the Notes held by each of the Large Noteholders that are to be
modified by the terms of this Supplemental Indenture;
WHEREAS,
this Supplemental Indenture includes
the form of the Modified Securities to be issued to the Large Noteholders and
such other Holders elect to as participate in the Restructuring;
WHEREAS,
the Company has agreed to permit such Holders to
receive the Modified Securities upon the satisfaction of the terms and
conditions established in the Restructuring Agreement; and
WHEREAS,
for the purposes hereinabove recited, and pursuant to
due corporate action, 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 consummating the restructuring transactions described in the
Restructuring Agreement;
provided
,
however
, that the amendments
effected hereby are being effected solely for the benefit of the Large
Noteholders and such of the other Holders who agree to participate in the
Restructuring and deliver their outstanding Notes in accordance with the terms
and conditions of the Amended Company Repurchase Notice and Notice of
Alternative Election dated May [ ], 2012 filed with the United States
Securities and Exchange Commission on May [ ], 2012.
SECTION
2.01. 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 Rights 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 a sale or other disposition of the Mining Data.
“
Modified
Security
” means a Security modified pursuant to Article II of this
Supplemental Indenture.
“
Modified
Securities
” means the Securities modified pursuant to Article II of this
Supplemental Indenture.
“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. Modified Defined Terms.
Section
1.01 of the Indenture is hereby amended by deleting the term “Holder” or
“Securityholder” and inserting the following definition:
“Holder”
or
“Securityholder”
means a
Person in whose name a Security or a Modified Security is registered in the
Security Register.
SECTION 2.03. 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).
[
INCLUDE IF SECURITY IS A GLOBAL 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. [
NTD:
New CUSIP No. to be inserted]
ISIN [
NTD:
New ISIN No. to be inserted]
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U.S. $[●]
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GOLD RESERVE INC., a corporation duly organized and
validly existing under the laws of Yukon, Canada (herein called the "
Company
",
which term includes any successor corporation under the Indenture referred to
on the reverse hereof), for value received hereby promises to pay to Cede &
Co., or registered assigns, the principal sum of [●] United States
Dollars ($●) [
INCLUDE IF SECURITY IS A GLOBAL SECURITY
— (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 [●], 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 June [●], 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 of the Company to make an
offer 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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SECTION 2.04. 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 2022 (herein
called the "
Securities
"), all issued or to be issued under and
pursuant to an Indenture dated as of May 18, 2007, as amended (herein called
the "
Indenture
"), between the Company and
The Bank of
New York
(herein called the "
Trustee
"), as supplemented
by the Supplemental Indenture dated s of June [ ], 2013 between the Company
and the 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
Company and the Holders of the Securities. Terms used herein which are defined
in the Indenture have the meanings assigned to them in the Indenture.
The
indebtedness evidenced by the 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 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 Security
at the rate of 5.50% per annum. The Company will pay interest semiannually on
June 15 and December 15 of each year.
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 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 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 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
Security at any time after the close of business on such Regular Record Date.
If this 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 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 Security. Except where this
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 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 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 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 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
.
The Company may, at its option, redeem the Securities,
in whole but not in part, for an amount equal to 100% of the Principal Amount
of the 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 May 18, 2007 in the laws
or any regulations of Canada or any Canadian political subdivision or taxing
authority, or any change occurring after May 18, 2007 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).
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 payment 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;
provided, however, that the Company’s redemption obligations shall be limited
to the amount of the Proceeds received by the Company (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).
The Company may, at its option, redeem the Modified
Securities, in whole or in part, upon twenty (20) days’ notice to the Holders,
for Common Shares at the Conversion Price plus cash for any 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 in
the period of thirty (30) consecutive trading days.
The Company will give the Trustee and the Holders of
the 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 and (iii) the Company will give the Trustee
and the Holders of the Securities notice of redemption upon not less than 20
days' nor more than 60 days' notice of redemption if redemption is to be made
pursuant to the Company’s mandatory obligation to redeem in connection with an
Arbitration Award or Mining Data Sale or the Company’s option to redeem if the
closing sale price of its Common Shares is equal to or greater than 200% of the
Conversion Price for at least 20 trading days during any period of 30 consecutive
trading days.
Upon receiving such notice of redemption, each Holder
who does not wish to have the Company redeem its Securities pursuant to Article
XIII of the Indenture can elect to (i) convert its Securities pursuant to
Article XVI of the Indenture or (ii) not have its Securities redeemed, provided
that no Additional Amounts will be payable on any payment of interest or
principal with respect to the 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 Securities redeemed without any further action.
If a Holder does not elect to convert its Securities pursuant to Article XVI of
the Indenture but wishes to elect to not have its 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 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
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 Securities or portions thereof.
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 [●],
2014, the Company will be required to make an offer to purchase (the "
Fundamental
Change Purchase Offer
") all outstanding 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 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 Securities at their addresses shown in the
Security Register, and to beneficial owners of the 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 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 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 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
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 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
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 Security, the Company will have the option to
deliver Common Shares, cash or a combination of Common Shares and cash for the
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 Securities for
conversion. The Trustee will initially act as Conversion Agent. A Holder may
convert fewer than all of such Holder's Securities so long as the Securities
converted are an integral multiple of US$1,000 principal amount.
[
INCLUDE IF SECURITY IS A GLOBAL SECURITY
– In
the event of a deposit or withdrawal of an interest in this Security, including
an exchange, transfer, repurchase or conversion of this 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 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 Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of
any 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 Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this 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 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 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 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 Security is registrable in
the Security Register, upon surrender of this 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 Securities, of authorized denominations and for the same aggregate
Principal Amount, will be issued to the designated transferee or transferees.
The 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
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 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 Security is registered
as the owner hereof for all purposes, whether or not this Security be overdue,
and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
This Security shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this 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 Security, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this 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 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 Security into cash and, if
applicable, Common Shares of the Company, check the box:
To convert only part of this 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 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 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 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 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 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 Security redeemed by the Company, check the box:
If you elect
to have only part of this 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 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 2.05. Redemption.
Article
XIII of the Indenture is hereby amended by inserting the following Section
13.08 and Section 13.09:
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
payment 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; provided, however, that
the Company’s redemption obligations in (a) and (b) of this Section 13.08 shall
be limited to the amount of the Proceeds received by the Company (provided,
further, that any subsequent receipt of additional Proceeds shall be applied in
a similar manner until such time as the redemption obligations set forth in
this Section 13.08 have been satisfied in full).
Section
13.09 Optional Redemption of Modified Securities.
The Company may not redeem the Modified Securities at
any time after June 16, 2012 for any reason other than as set forth in this
Section 13.09. The Company may, at its option, redeem the Modified Securities,
in whole or in part, upon twenty (20) days’ notice to the Holders, for Common
Shares at the Conversion Price plus cash for any 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 in the period of
any thirty (30) consecutive trading days.
SECTION 2.06. Rights of Holders of Modified
Securities.
Except as expressly
provided in this Supplemental Indenture, a Holders 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 Securities shall
include Modified Securities..
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 Notes or the
proper authorization or the due execution hereof or thereof by the Company or
the Parent.
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 the prospectus supplement 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. 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.
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.
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:
Name: Rockne J. Timm
Title: Chief
Executive Officer
TRUSTEE:
THE
BANK OF NEW YORK MELLON,
As
successor to THE BANK OF NEW YORK
By:
Name:
Title:
Exhibit TG3
= = = = = = = = = = = = = = = = = = = =
= = = = = = = = = = = = = = = = = = = = = = = =
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T‑1
STATEMENT
OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK
IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION
305(b)(2) |__|
___________________________
THE
BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
New York
(Jurisdiction of incorporation
if not a U.S. national bank)
|
13‑5160382
(I.R.S. employer
identification no.)
|
One Wall Street, New York, N.Y.
(Address of principal executive offices)
|
10286
(Zip code)
|
___________________________
Yukon, Canada
(State or other jurisdiction of
incorporation or organization)
|
Not Applicable
(I.R.S. employer
identification no.)
|
926 West Sprague Avenue, Suite 200
Spokane, Washington
(Address of principal executive offices)
|
99201
(Zip code)
|
GOLD
RESERVE INC.
(Exact name of obligor as specified in its charter)
___________________________
5.50%
Senior Subordinated Convertible Notes due 2014
(Title of the indenture securities)
= = = = = = = = = = = = = = = = = = = =
= = = = = = = = = = = = = = = = = = = = = = = =
1. General
information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Name
|
Address
|
Superintendent of Banks of the
State of New York
|
One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223
|
Federal Reserve Bank of New York
|
33 Liberty Street, New York, N.Y. 10045
|
Federal Deposit Insurance
Corporation
|
Washington, D.C. 20429
|
New York Clearing House
Association
|
New York, N.Y. 10005
|
(b) Whether it is authorized to exercise
corporate trust powers.
Yes.
2. Affiliations with
Obligor.
If the obligor is an
affiliate of the trustee, describe each
such affiliation.
None.
16. List of Exhibits.
Exhibits identified in
parentheses below, on file with the Commission, are incorporated herein by
reference as an exhibit hereto, pursuant to Rule 7a‑29 under the Trust
Indenture Act of 1939 (the "Act") and 17 C.F.R. 229.10(d).
1. A copy of the
Organization Certificate of The Bank of New York Mellon (formerly known as The
Bank of New York, itself formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T‑1
filed with Registration Statement No. 33‑6215, Exhibits 1a and 1b to Form
T‑1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T‑1
filed with Registration Statement No. 33‑29637, Exhibit 1 to Form T-1
filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1
filed with Registration Statement No. 333-152735).
4. A copy of the existing By‑laws of the
Trustee. (Exhibit 4 to Form T‑1 filed with Registration Statement No.
333‑154173).
6. The consent of the Trustee required by
Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration
Statement No. 333-152735).
7. A copy of the latest report of condition of
the Trustee published pursuant to law or to the requirements of its supervising
or examining authority.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee,
The Bank of New York Mellon, a corporation organized and existing under the
laws of the State of New York, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
The City of New York, and State of New York, on the 1st day of June, 2012.
THE BANK OF NEW YORK MELLON
By:
/s/ John T. Needham, Jr.
Name: John T. Needham, Jr.
Title: Vice President
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
March 31, 2012, published in accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of the Federal Reserve Act.
ASSETS
|
Dollar Amounts In
Thousands
|
Cash and
balances due from depository institutions:
|
|
Noninterest‑bearing
balances and currency and coin...................................................
|
3,021,000
|
Interest‑bearing
balances............................
|
88,872,000
|
Securities:
|
|
Held-to-maturity
securities.........................
|
4,819,000
|
Available-for-sale
securities........................
|
79,781,000
|
Federal funds
sold and securities purchased under agreements to resell:
|
|
Federal
funds sold in domestic offices......
|
11,000
|
Securities
purchased under agreements to
resell………………………………………
|
719,000
|
Loans and
lease financing receivables:
|
|
Loans and
leases held for sale…………….
|
9,000
|
Loans and
leases, net of unearned income…………….................................
|
25,163,000
|
LESS:
Allowance for loan and
lease losses………...................................
|
342,000
|
Loans and
leases, net of unearned
income and allowance.............................
|
24,821,000
|
Trading
assets................................................
|
4,149,000
|
Premises and
fixed assets (including capitalized leases).......................................
|
1,243,000
|
Other real
estate owned.................................
|
13,000
|
Investments
in unconsolidated subsidiaries and associated companies...........................
|
996,000
|
Direct and
indirect investments in real estate ventures
|
0
|
Intangible
assets:
|
|
Goodwill.....................................................
|
6,449,000
|
Other
intangible assets................................
|
1,575,000
|
Other assets...................................................
|
|
Total assets....................................................
|
|
LIABILITIES
|
|
Deposits:
|
|
In domestic offices.....................................
|
94,919,000
|
Noninterest‑bearing....................................
|
60,836,000
|
Interest‑bearing...........................................
|
34,083,000
|
In foreign
offices, Edge and Agreement subsidiaries, and IBFs.............................
|
92,686,000
|
Noninterest‑bearing....................................
|
3,607,000
|
Interest‑bearing...........................................
|
89,079,000
|
Federal funds
purchased and securities sold under agreements to repurchase:
|
|
Federal
funds purchased in domestic
offices……………………………………................................................................... .
|
2,367,000
|
Securities
sold under agreements to
repurchase.................................................
|
1,171,000
|
Trading
liabilities...........................................
|
5,723,000
|
Other
borrowed money:
(includes mortgage indebtedness and obligations under capitalized leases)…….
|
3,138,000
|
Not
applicable
|
|
Not
applicable
|
|
Subordinated
notes and debentures..............
|
3,505,000
|
Other liabilities..............................................
|
|
Total
liabilities...............................................
|
|
EQUITY
CAPITAL
|
|
Perpetual
preferred stock and related
surplus…………………………………….
|
0
|
Common stock...............................................
|
1,135,000
|
Surplus
(exclude all surplus related to preferred stock)..........................................
|
9,658,000
|
Retained
earnings..........................................
|
8,773,000
|
Accumulated
other comprehensive income………
|
-985,000
|
Other equity
capital components…………………
|
0
|
Total bank
equity capital.........................................
|
18,581,000
|
Noncontrolling
(minority) interests in
consolidated subsidiaries ………………………
|
350,000
|
Total equity
capital........................................
|
|
Total
liabilities and equity capital..................
|
|
I, Thomas P. Gibbons, Chief
Financial Officer of the above‑named bank do hereby declare that this
Report of Condition is true and correct to the best of my knowledge and belief.
Thomas P. Gibbons,
Chief Financial Officer
We, the undersigned directors, attest to the correctness
of this statement of resources and liabilities. We declare that it has been
examined by us, and to the best of our knowledge and belief has been prepared
in conformance with the instructions and is true and correct.
Gerald L. Hassell
Catherine A. Rein
Michael J. Kowalski
|
Directors
|
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