UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO/A
(Rule 13e-4)
TENDER OFFER STATEMENT UNDER
SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 5)
GOLD RESERVE INC.
(Name of Subject Company (Issuer))
GOLD RESERVE INC.
(Name of Filing Persons (Offeror))
5.50% Senior Subordinated Convertible Notes due 2022
(Title of Class of Securities)
38068N AB4
(CUSIP Number of Class of
Securities)
Rockne J. Timm
Chief Executive Officer
Gold Reserve Inc.
926 West Sprague Ave., Suite 200
Spokane, Washington 99201
(509) 623-1500
(Name, Address and Telephone Number of Person
Authorized
to Receive Notices and Communications on Behalf of
Filing Persons)
Copy 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
CALCULATION OF FILING FEE
Transaction Valuation*
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Amount of Filing Fee**
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$
1,080,000
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$123.77
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*
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Calculated solely for
purposes of determining the filing fee. The amount represents the
principal amount of the 5.50% Senior Subordinated Convertible Notes due 2022
to which this offer relates.
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**
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The amount of the filing
fee was calculated in accordance with Rule 0-11 of the Securities
Exchange Act of 1934, as amended, and equals $114.60 for each $1,000,000 of
the value of the transaction.
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o
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Check the box if any part
of the fee is offset as provided by Rule 0-11(a)(2) and identify
the filing with which the offsetting fee was previously paid. Identify
the previous filing by registration statement number, or the Form or Schedule
and the date of its filing.
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Amount Previously Paid:
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Not applicable.
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Filing Party:
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Not applicable.
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Form or Registration No.:
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Not applicable.
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Date Filed:
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Not applicable.
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o
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Check the box if the filing
relates solely to preliminary communications made before the commencement of
a tender offer.
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Check
the appropriate boxes below to designate any transactions to which this
statement relates:
o
third-party tender offer subject to Rule 14d-1
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o
going-private transaction subject to Rule 13e-3
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x
issuer tender offer subject to Rule 13e-4
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o
amendment to Schedule 13D under Rule 13d-2
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Check
the following box if the filing is a final amendment reporting the results of
the tender offer.
o
EXPLANATORY NOTE
This Amendment Number 5 (“
Amendment No. 5
”) amends the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission on September 18, 2012 by
Gold Reserve Inc., a company incorporated under the laws of Yukon, Canada (“
GR
” or the “
Company
”)
(as amended and supplemented, the “
Schedule TO
”). This Amendment No. 5 is being filed to provide additional disclosures for holders of
the Company’s 5.50% Senior Subordinated Convertible Notes due 2022 issued by the Company on May 18, 2007 (the “
Notes
”)
and to extend the Expiration Date for holders of the Notes to tender their Notes to 11:59 p.m., Eastern Time, on November 23, 2012. Accordingly, the defined term “
Expiration Date
” in the Schedule TO, including all exhibits thereto (collectively, the “
Schedule TO Documents
”), shall hereby be amended to mean 11:59 p.m., Eastern Time, on November 23, 2012. All other terms and conditions of the Schedule TO Documents shall remain unchanged and in full force and effect.
All information in the previously filed Schedule TO, including all schedules and annexes thereto, is hereby expressly incorporated by reference in this Amendment No. 5 in response to all items required in the Schedule TO, except that such information is hereby amended to the extent provided for herein and the Second Supplement to Offer, dated November 16, 2012.
Item 1. Summary Term Sheet
The information contained in the sections entitled “Summary” in the Schedule TO is hereby amended and supplemented by the information set forth under Item 4(a) below, which information is incorporated herein by reference.
Item 4.
Terms of the Transaction
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(a) The information set forth under “Summary”, “Procedures to be Followed by Holders Electing to Accept the Offer” and “The Offer” in the Offer and Item 4(a) of the Schedule TO, to the extent such Item 4(a) incorporates by reference the information contained in the Offer, is hereby amended by inserting the following immediately after the last paragraph of each such section: “The Expiration Date of the Offer is extended to 11:59 p.m., New York City time, on November 23, 2012.” As of November 15, 2012, Notes in the aggregate amount of $38,000 have been tendered by the holders of the $1,080,000 of outstanding Notes that are not held by the four largest Noteholders. The press release issued by the Company announcing the extension of the Offer is attached hereto as Exhibit (a)(5)(E) and is incorporated herein by reference. The information set forth in the Second Supplement to Offer, dated November 16, 2012 (attached hereto as Exhibit (a)(1)(E)), is incorporated herein by reference.
Item 10.
Financial Statements
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The information set forth in the Second Supplement to Offer, dated November 16, 2012, is incorporated herein by reference.
Item 11.
Additional Information
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(b) The information set forth in the Second Supplement to Offer, dated November 16, 2012, is incorporated herein by reference. The information set forth under Item 11(b) of the Schedule TO, to the extent such Item 11(b) incorporates by reference the information contained in the Offer, including the Letter of Transmittal, is hereby amended and supplemented by the information set forth under Item 4(a) above, which information is incorporated herein by reference.
Item 12. Exhibits.
Exhibit No.
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Description
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(a)(1)(A)
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Notice of Offer to Holders of its 5.50% Senior Subordinated Convertible Notes due 2022, dated September 18, 2012, as amended October 29, 2012
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(a)(1)(B)
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Letter of Transmittal
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(a)(1)(C)
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Form of Notice of Withdrawal
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(a)(1)(D)
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Supplement to Offer, dated November 8, 2012
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(a)(1)(E)
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Second Supplement to Offer, dated November 16, 2012*
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(a)(5)(A)
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Press Release issued by GR on September 18, 2012
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(a)(5)(B)
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Press Release issued by GR on October 17, 2012
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(a)(5)(C)
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Press Release issued by GR on October 29, 2012
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(a)(5)(D)
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Press Release issued by GR on November 6, 2012
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(a)(5)(E)
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Press Release issued by GR on November 16, 2012*
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(b)
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Not applicable
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(d)(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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(d)(2)
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Agreement and Plan of Merger, dated as of October 5, 1998, by and among Gold Reserve Corporation (predecessor issuer), Gold Reserve Inc. (successor issuer) and GR–Merger Corp filed as Annex I 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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(d)(3)
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Exchange Agreement by and among Gold Reserve Corporation, the Company, TranSecurities International, Inc. and Holders of Unit Shares, dated November 17, 1998 filed as Exhibit 4.1 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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(d)(4)
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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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(d)(5)
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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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(d)(6)
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Form of Certificate for the Company’s Class A common shares filed as Exhibit 4.4 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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(d)(7)
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Form of Certificate for the Unit Share filed as Exhibit 4.5 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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(d)(8)
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Shareholder Rights Plan Agreement, as amended, of the Company (including form of Rights Certificate) filed as Exhibit 99.1, Appendix C of the Company’s Form 6-K filed with the SEC on May 14, 2009 and incorporated by reference herein
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(d)(9)
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Form of Change of Control Agreement entered into by and among Gold Reserve Inc., Gold Reserve Corporation and, individually, each of Rockne J. Timm and A. Douglas Belanger filed as Exhibit (e)(1) of the Company’s Schedule 14D-9 filed with the SEC on December 30, 2008 and incorporated by reference herein
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(d)(10)
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Form of Change of Control Agreement entered into by and among Gold Reserve Inc., Gold Reserve Corporation and, individually, each of James P. Geyer, Robert A. McGuinness, Mary E. Smith, and David P. Onzay filed as Exhibit (e)(2) of the Company’s Schedule 14D-9 filed with the SEC on December 30, 2008 and incorporated by reference herein†
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(d)(11)
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Gold Reserve Inc. Equity Incentive Plan filed as Exhibit 3.2 to the Company’s Form 20-F (File No. 001-31819) filed with the SEC on April 3, 2006 and incorporated by reference herein†
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(d)(12)
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Gold Reserve Inc. Venezuelan Equity Incentive Plan filed as Exhibit 4.1 to the Company’s Registration Statement on Form S-8 (Registration No. 333-152883) filed with the SEC on April 3, 2006 and incorporated by reference herein†
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(d)(13)
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Gold Reserve KSOP filed as Exhibit 4.1 to the Company’s Registration Statement on Form S-8 filed with the SEC on August 29, 2007 and incorporated by reference herein†
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(d)(14)
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Gold Reserve Inc. Director and Employee Retention Plan filed as Exhibit (e)(6) of the Company’s Schedule 14D-9 filed with the SEC on December 30, 2008 and incorporated by reference herein†
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(d)(15)
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Notice of Grant of Stock Options and Option Agreement filed as Exhibit 10.1 to the Company’s Form 10-Q (File No. 001-31819) filed with the SEC on August 12, 2011 and incorporated by reference herein
†
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(d)(16)
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First Amendment to Shareholder Rights Plan Agreement filed as Appendix B to the Company’s Proxy Statement/Information Circular filed with the SEC on June 1, 2012 and incorporated herein by reference
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(d)(17)
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Subordinated Note Restructuring Agreement dated May 25, 2012 filed as Exhibit 99.1 to the
Company’s Form 6-K (File No. 001-31819) filed with the SEC on May 30, 2012 and incorporated by reference herein
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(d)(18)
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Amended and Restated Subordinated Note Restructuring Agreement dated July 3, 2012 filed as Exhibit 99.1 to the
Company’s Form 6-K (File No. 001-31819) filed with the SEC on July 5, 2012 and incorporated by reference herein
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(d)(19)
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Second Amended and Restated Subordinated Note Restructuring Agreement dated September 13, 2012 filed as Exhibit 99.1 to the Company’s Form 6-K filed with the SEC on September 18, 2012 and incorporated by reference herein
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(g)
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Not applicable
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(h)
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Not applicable
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* Filed herewith
†
Management contract or compensatory plan or arrangement
Item 13. Information Required by Schedule 13E-3.
Not applicable.
SIGNATURE
After due inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
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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
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Title: Chief
Executive Officer
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Dated:
November 16, 2012
EXHIBIT INDEX
Exhibit No.
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Description
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(a)(1)(A)
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Notice of Offer to Holders
of its 5.50% Senior Subordinated Convertible Notes due 2022, dated September
18, 2012, as amended October 29, 2012
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(a)(1)(B)
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Letter of Transmittal
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(a)(1)(C)
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Form of Notice of
Withdrawal
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(a)(1)(D)
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Supplement to Offer, dated
November 8, 2012
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(a)(1)(E)
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Second Supplement to Offer,
dated November 16, 2012*
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(a)(5)(A)
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Press Release issued by GR
on September 18, 2012
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(a)(6)(A)
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Press Release
issued by GR on October 17, 2012
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(a)(5)(C)
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Press Release
issued by GR on October 29, 2012
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(a)(5)(D)
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Press Release
issued by GR on November 6, 2012
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(a)(5)(E)
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Press Release
issued by GR on November 16, 2012*
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(b)
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Not applicable
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(d)(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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(d)(2)
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Agreement and Plan of
Merger, dated as of October 5, 1998, by and among Gold Reserve Corporation
(predecessor issuer), Gold Reserve Inc. (successor issuer) and GR–Merger Corp
filed as Annex I 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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(d)(3)
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Exchange Agreement by and
among Gold Reserve Corporation, the Company, TranSecurities International,
Inc. and Holders of Unit Shares, dated November 17, 1998 filed as
Exhibit 4.1 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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(d)(4)
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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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(d)(5)
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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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(d)(6)
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Form of Certificate for the
Company’s Class A common shares filed as Exhibit 4.4 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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(d)(7)
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Form of Certificate for the
Unit Share filed as Exhibit 4.5 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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(d)(8)
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Shareholder Rights Plan
Agreement, as amended, of the Company (including form of Rights Certificate)
filed as Exhibit 99.1, Appendix C of the Company’s Form 6-K filed with the
SEC on May 14, 2009 and incorporated by reference herein
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(d)(9)
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Form of Change of Control
Agreement entered into by and among Gold Reserve Inc., Gold Reserve
Corporation and, individually, each of Rockne J. Timm and A. Douglas Belanger
filed as Exhibit (e)(1) of the Company’s Schedule 14D-9 filed with the SEC on
December 30, 2008 and incorporated by reference herein
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(d)(10)
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Form of Change of Control
Agreement entered into by and among Gold Reserve Inc., Gold Reserve
Corporation and, individually, each of James P. Geyer, Robert A. McGuinness,
Mary E. Smith, and David P. Onzay filed as Exhibit (e)(2) of the Company’s
Schedule 14D-9 filed with the SEC on December 30, 2008 and incorporated by
reference herein†
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(d)(11)
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Gold Reserve Inc. Equity
Incentive Plan filed as Exhibit 3.2 to the Company’s Form 20-F (File No.
001-31819) filed with the SEC on April 3, 2006 and incorporated by reference
herein†
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(d)(12)
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Gold Reserve Inc. Venezuelan Equity Incentive Plan filed as Exhibit 4.1 to the Company’s Registration Statement on Form S-8 (Registration No. 333-152883) filed with the SEC on April 3, 2006 and incorporated by reference herein†
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(d)(13)
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Gold Reserve KSOP filed as Exhibit 4.1 to the Company’s Registration Statement on Form S-8 filed with the SEC on August 29, 2007 and incorporated by reference herein†
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(d)(14)
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Gold Reserve Inc. Director and Employee Retention Plan filed as Exhibit (e)(6) of the Company’s Schedule 14D-9 filed with the SEC on December 30, 2008 and incorporated by reference herein†
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(d)(15)
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Notice of Grant of Stock Options and Option Agreement filed as Exhibit 10.1 to the Company’s Form 10-Q (File No. 001-31819) filed with the SEC on August 12, 2011 and incorporated by reference herein
†
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(d)(16)
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First Amendment to Shareholder Rights Plan Agreement filed as Appendix B to the Company’s Proxy Statement/Information Circular filed with the SEC on June 1, 2012 and incorporated herein by reference
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(d)(17)
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Subordinated Note Restructuring Agreement dated May 25, 2012 filed as Exhibit 99.1 to the
Company’s Form 6-K (File No. 001-31819) filed with the SEC on May 30, 2012 and incorporated by reference herein
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(d)(18)
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Amended and Restated Subordinated Note Restructuring Agreement dated July 3, 2012 filed as Exhibit 99.1 to the
Company’s Form 6-K (File No. 001-31819) filed with the SEC on 5, 2012 and incorporated by reference herein
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(d)(19)
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Second Amended and Restated Subordinated Note Restructuring Agreement dated September 13, 2012 filed as Exhibit 99.1 to the Company’s Form 6-K filed with the SEC on September 18, 2012 and incorporated by reference herein
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(g)
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Not applicable
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(h)
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Not applicable
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* Filed herewith
†
Management contract or compensatory plan or arrangement
Exhibit (a)(1)(E)
SECOND SUPPLEMENT TO
NOTICE OF OFFER
To the Holders of
GOLD RESERVE INC.
5.50% Senior Subordinated Convertible
Notes
Due June 15, 2022
CUSIP
38068N AB4
On September 18, 2012,
Gold Reserve Inc.
(the “Company” or “GR”) commenced an offer to
holders (the “Holders”) of 5.50% Senior
Subordinated Convertible Notes due 2022 (the “Notes”)
, upon the terms and subject to the conditions
described in the Offer, dated September 18, 2012, as amended and supplemented
(the “original Offer, as amended and supplemented”) and the accompanying
letters of transmittal.
The Company, by this Second Supplement,
supplements the original Offer, as amended and supplemented, to provide additional
disclosure with respect to the contingent value rights to be issued by the
Company.
Except as otherwise set forth in this Second
Supplement, the terms and conditions set forth in the original Offer, as
amended and supplemented, and the related letters of transmittal remain
applicable in all respects. To the extent that any information or amendment
contained in this Second Supplement is inconsistent with the information in the
original Offer, as amended and supplemented, the information and amendments set
forth in this Second Supplemental shall control. Unless the context indicates
otherwise, terms used in this Second Supplement and the original Offer, as
amended and supplemented, have the meanings given to them in the original
Offer, as amended and supplemented.
The Expiration Date for holders of
the Notes to tender their Notes has been extended by the Company to 11:59 p.m.,
Eastern Time, on November 23, 2012.
None of GR or its
board of directors or employees are making any recommendation to any Holder as
to whether to surrender or refrain from surrendering Notes pursuant to the
Offer. Each Holder must make his, her or its own decision whether to surrender
his, her or its Notes pursuant to the Offer and, if so, the principal amount of
Notes to surrender based on their own assessment of current market value and
other relevant factors.
November 16, 2012
ADDITIONAL RISK FACTORS
The Company does not know when its arbitration
proceedings against Venezuela will be completed.
The Company understands that numerous
pending arbitration actions are being pursued against Venezuela at this time
before the ICSID (See ICSID website at http://icsid.worldbank.org/ICSID/) and
further understands that Venezuela has reportedly settled and/or made full or
partial payment for damages to a limited number of claimants. ICSID
Arbitrations are non-public proceedings and, as a result, we have no specific
information regarding the actual amounts paid or what percentage such payments
represented of the original claim against Venezuela or the timing of such
payments. The Company understands that tribunals for similar arbitration
proceedings typically require six to eighteen months from the date of the oral
hearing to finalize and issue a decision. Based on information available to the
Company, the historical ICSID average appears to be approximately 1.2 years.
The Company’s arbitration hearing was held in February 2012. Not withstanding
the historical average, based on the uncertain nature of arbitration under
investment treaties, the Company does not have a basis upon which to estimate
the timing or the amount of an award or settlement, if any, or the likelihood
of its collection. Accordingly, there can be no assurances that the Company’s
arbitration proceedings will be completed or settled within any specific or
reasonable period of time, the Company will receive any award or settlement or
that any award or settlement will be paid within any specific or reasonable
period of time following the award or settlement, if any.
The Company may not receive any payment or
compensation with respect to its mining data.
The Company describes in “ADDITIONAL INFORMATION REGARDING THE CONTINGENT VALUE
RIGHT” management’s estimate of the value
of the mining data, which is based on the Company’s determination of the amount
it would consider accepting in connection with any sale or transfer of its
mining data. The Company’s determination is not based on the value of the
Company’s assets set forth in its financial statements, but represents the
Company’s estimates of the costs incurred by the Company in developing the
Brisas Project, all of which costs have been written off. Costs were
incurred by the Company with respect to extensive exploration including
geology, geophysics and geochemistry, approximately 975 drill holes totaling
over 200,000 meters of drilling, independent audits of drilling, sampling,
assaying procedures and ore reserves methodology, environmental baseline
work/socioeconomic studies, hydrology studies, geotechnical studies, mine
planning, advanced stage grinding and metallurgical test work, tailings dam
designs, milling process flow sheet designs, Environmental Impact Statement and
Bankable Feasibility Study, including a number of subsequent updates, and an
independent CSA National Instrument 43-101 report. The fair market value of the
Company’s mining data is unknown. The Company does not have a basis upon
which to estimate the fair market value of the mining data. There can be no
assurances that the Company will sell its mining data or receive payment of an
amount equal or more than the amount it has expressed it would consider
accepting in connection with any sale or transfer of its mining data.
Accordingly, there can be no assurances that the Company will receive any
payment or compensation with respect to its mining data.
ADDITIONAL INFORMATION
REGARDING THE CONTINGENT VALUE RIGHT
Below is a chart illustrating
amounts that might be payable with respect to the CVR to the Holders of the
1.3% of outstanding Notes, assuming the maximum 0.07% possible payout
percentage if all Other Holders elect to participate and their Notes are
accepted by the Company. There can be no assurances that the Company will
receive any money or other consideration with respect to its arbitration
proceeding or any sale of the Company’s mining data, equipment and related
assets. Accordingly, there can be no assurances that the CVR will have any
value in the future.
The CVR payout
calculations per thousand in the chart are based on hypothetical amounts that
might be received by the Company with respect to an arbitration award,
arbitration settlement, mining data sale or a related transaction. Management’s
presentation of these hypothetical amounts are not an indication of
management’s expectations with respect to future outcomes. The calculations
are provided for illustrative purposes.
The minimum value
presented represents the management’s estimate of the costs to independently
duplicate the mining data, equipment and related assets and a sales price that
management would consider if the Company were to
receive an offer for such assets. The maximum value represents the current amount requested by the Company to be awarded by the arbitration tribunal. There can be no assurance that the Company will be successful in obtaining any award or other compensation through a settlement or asset sale or that the Company will be successful in collecting any portion of such amounts.
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Assumed gross value received before deductions
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$200,000,000
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$2,200,000,000
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Exclusions
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A
Maximum income taxes
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$(70,000,000)
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$(770,000,000)
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B
Redemption of modified notes
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$(26,000,000)
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$(26,000,000)
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C
Payment of estimated accrued and unpaid operating expenses and contingent legal fees
1
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$(11,000,000)
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$(11,000,000)
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D
Estimated Change of Control payments payable in the event of a change of control of the Company
2
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$(15,000,000)
|
|
$(15,000,000)
|
|
|
|
|
|
|
|
|
|
Assumed Net Value Received
|
|
$78,000,000
|
CVR
Payout
per
$1,000
|
$1,378,000,000
|
CVR
Payout
per
$1,000
|
CVR%
|
|
|
|
|
|
|
|
5.465%
|
Large Note Holders
|
$84,367,000
|
98.7%
|
$4,262,781
|
$50.53
|
$75,309,136
|
$892.64
|
0.070%
|
Other Holders
|
$1,080,000
|
1.3%
|
$54,600
|
$50.53
|
$964,600
|
$892.64
|
5.535%
|
Total
|
$85,447,000
|
100.0%
|
$4,317,381
|
$50.53
|
$76,273,736
|
$892.64
|
1
The terms of the CVR limit the amount of the professional fees and expenses that may be excluded to $10,000,000 and the amount of the accrued and unpaid operating expenses that may be excluded to $1,000,000.
2
Change of Control payments payable only in connection with a change of control of the Company.
|
|
The hypothetical payout amounts shown above include deductions for (A) a hypothetical maximum corporate tax rate of 35%, (B) redemption of Modified Notes assuming they have not already been redeemed prior to an award, (C) an estimate of the maximum of other current obligations of the Company including a success fee related to arbitration (as referenced in the CVR) and (D) estimated Change of Control payments that may be payable under certain circumstances.
The Company may be required to pay to employees having Change of Control Agreements an aggregate amount of approximately $15 million. Such amount would be payable from the hypothetical award or proceeds shown in the table above only in connection with a change of control of the Company. The terms of the CVR limit the amount of the professional fees and expenses that may be excluded from the calculations of the amount distributable to CVR holders to $10,000,000 and the amount of the accrued and unpaid operating expenses that may be excluded to $1,000,000.
Proceeds that may be received by the Company with respect to any arbitration award or settlement or the sale of mining data may be in the form of cash, securities, commodities, bonds or other non-cash consideration. The Company is unable at this time to predict the form of any non-cash consideration that it may receive with respect to any arbitration proceeding or award or sale of its mining data.
Prior to agreeing to accept any non-cash consideration as all or part of any proceeds that the Company reasonably determines in good faith would be impracticable to apportion (an “Undistributable Asset”), the Company will notify its largest noteholder (determined on the basis of the principal amount of Modified Notes then outstanding). The Company may not agree to accept any Undistributable Asset without the consent of its largest noteholder. The Company will negotiate with its largest noteholder a mutually agreeable disposition of the Undistributable Asset for the benefit of the Large Noteholders in accordance with the terms of the CVR held by the Large Noteholders.
Holders of CVRs other than the Large Noteholders will be paid cash by the Company in an amount equal to the fair market value of their pro rata interest in the Undistributable Asset, net of such Holder’s pro rata percentage of the
excluded amounts specified in the CVR, in lieu of any
distribution by the Company to such Holders of interests in any Undistributable
Asset. The fair market value of any Undistributable Asset shall be determined
by the independent members of the Company’s Board of Directors in consultation
with the Company’s largest noteholder. The Board may retain such experts as
the Board may determine appropriate to assist the Board in determining the fair
market value of the Undistributable Asset and the amount of cash to be
distributed with respect to CVRs delivered to Holders other than the Large
Noteholders.
If the Company,
after reaching an agreement with its largest noteholder, distributes all or
part of an Undistributable Asset to the Large Noteholders, each such Holder
shall receive the percentage of such Undistributable Asset specified in such
holder’s CVR. The Company shall take all actions as such holder may reasonably
request to record, certificate and/or otherwise effectuate the Large
Noteholders’ ownership of such undivided interest.
The form of
the CVR is attached as Exhibit C to the Second Amended and Restated
Subordinated Note Restructuring Agreement, a copy of which is attached as
Exhibit 99.1 to the Company’s
Report on Form 6-K filed with the SEC on September 18, 2012
.
INFORMATION IN THE
ORIGINAL OFFER
The original Offer, as amended and
supplemented, includes important information about the Company and the Offer
that we have not repeated in this Second Supplement, and we urge you to read
the original Offer, as amended and supplemented, as well as this Second Supplement
carefully. The Offer is being made on the terms and subject to the conditions
described in the original Offer, as amended and as supplemented by this Second Supplement,
together with the Letters of Transmittal accompanying the original Offer, as
amended and supplemented. Thus, except as it has been amended or superseded by
this Second Supplement, the information in the original Offer, as amended and
supplemented, continues to apply.
WHERE YOU CAN FIND
ADDITIONAL INFORMATION
GR is subject to the reporting and other
informational requirements of the Exchange Act and, in accordance therewith,
files reports and other information with the SEC. Such reports and other
information can be inspected and copied at the Public Reference Section of
the SEC located at 100 F Street, Washington D.C. 20549. Such material may
also be accessed electronically by means of the SEC’s home page on the
Internet at
www.sec.gov
. Also, the Company files reports and other announcements
with the Canadian securities regulatory agencies, which can be viewed on-line
at www.sedar.com.
GR has filed with the SEC a Tender Offer
Statement on Schedule TO, pursuant to Section 13(e)(4) of the
Exchange Act and Rule 13e-4 promulgated thereunder, furnishing certain
information with respect to the Offer. The Tender Offer Statement on
Schedule TO, together with any exhibits and any amendments thereto, may be
examined and copies may be obtained at the same places and in the same manner
as set forth above.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The documents listed below contain
important information about GR and its financial condition and the Company
hereby incorporates by reference into the Offer the
following documents that we have filed with the SEC:
• GR’s annual report on
Form 10-K for its fiscal year ended December 31, 2012;
• GR’s reports on
Form 6-K filed on May 30, 2012, May 31, 2012, June 4, 2012, June 29,
2012, July 5, 2012, August 28, 2012 and September 18, 2012;
• All other reports
filed pursuant to Section 13(a) or 15(d) of the Exchange Act
prior to the date of this Second Supplement since the end of the fiscal year
covered by the Form 10-K mentioned above; and
• The description of
Capital Stock set forth in the Registration Statement on Form F-10 (File No.
333-142655) filed on May 7, 2007.
`In particular, we incorporate by reference our
audited financial statements included in our Annual Report on Form 10-K for the
fiscal year ended December 31, 2011, beginning on page 24 of the Annual Report.
In the event of conflicting
information in these documents, the information in the latest filed documents
should be considered correct.
Exhibit
(a)(5)(E)
N
R
-
12
-
14
Gold Reserve Announces Extension of Expiration Date of
Offer for Remaining 5.50%
Senior Subordinated Convertible Notes due 2022
SPOKANE,
WASHINGTON, November 16, 2012
Gold
Reserve Inc. (TSX VENTURE:GRZ) (NYSE-MKT:GRZ) (the “Company”) announced today
that it is notifying holders of approximately 1.3% of its 5.50% Senior
Subordinated Convertible Notes due 2022 (the “Notes”) (representing $1,080,000
in aggregate principal amount) of the extension of the “Expiration Date”
of its offer (“Offer”) to participate in a restructuring transaction that
has been agreed to with its four largest Noteholders representing approximately
98.7% of the outstanding Notes. The Company has extended the “Expiration Date”
for the Offer to 11:59 p.m., Eastern Time, on Friday, November 23, 2012. The
Company does not anticipate further extending the Expiration Date.
As
of November 15, 2012, Notes in the aggregate amount of $38,000 have been
tendered by the holders of the $1,080,000 of outstanding Notes that are not
held by the four largest Noteholders. The four largest Noteholders have
delivered their Notes to the Agent for the Offer. The terms and conditions of
the Offer were set forth in the Tender Offer Statement filed on Schedule TO,
and the letter of transmittal and the related offer materials filed as
exhibits, which were filed with the Securities and Exchange Commission
("SEC") on September 18, 2012, as amended on October 29, 2012. The
Offer, letters of transmittal and related offer documents may be obtained free
of charge at the SEC's website, www.sec.gov,
or by directing a request to the Company.
This
press release shall not constitute an offer to sell or the solicitation of an
offer to buy any securities, nor shall there be any sale of these securities in
any jurisdiction in which such offer, solicitation or sale would be unlawful.
Further information regarding the Company can be located
at www.goldreserveinc.com,
www.sec.gov
and www.sedar.com.
Company
Contact
A.
Douglas Belanger, President
926
W. Sprague Ave., Suite 200
Spokane,
WA 99201 USA
Tel.
(509) 623-1500
Fax
(509) 623-1634
"
Neither
the TSX Venture Exchange nor its Regulation Services Provider (as that term is
defined in policies of the TSX Venture Exchange) accepts responsibility for the
adequacy or accuracy of this release."
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