FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
Exhibit 2.2
EXECUTION COPY
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER (this “Amendment”) is made as
of this 27th day of May, 2008, among AngloGold Xxxxxxx Limited, a corporation organized
under the laws of the Republic of South Africa (“Parent”), AngloGold Xxxxxxx USA
Incorporated, a Delaware corporation (“Member”), GCGC LLC, a Colorado limited liability
company and a direct wholly owned subsidiary of Member (“Merger Sub,” and, together with
Parent and Member, the “Parent Parties”) and Golden Cycle Gold Corporation, a Colorado
corporation (“Target”).
WHEREAS, on January 11, 2008, the Parent Parties and Target entered into an Agreement and Plan
of Merger (the “Merger Agreement”); and
WHEREAS, the Parent Parties and Target desire to amend the Merger Agreement.
NOW THEREFORE, in consideration of the mutual agreements contained in the Merger Agreement and
in this Amendment and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. The Merger Agreement is hereby amended to replace Section 3.1(b) with the following:
“(b) Subject to Section 3.2(i), each issued and outstanding Target Common Share (other
than Target Common Shares cancelled pursuant to Section 3.1(a)) shall be automatically
converted into the right to receive 0.3123 (the “Exchange Ratio”) American Depositary
Shares of Parent (each, an “ADS”) rounded up to the next whole ADS, with each whole ADS
representing one ordinary share, par value 25 South African cents per share, of Parent (the
“Parent Ordinary Shares”). The ADSs to be issued for each Target Common Share pursuant to
this Agreement are referred to herein as the “Common Conversion Consideration.” All such
Target Common Shares, when so converted, shall be retired, shall cease to be outstanding and shall
automatically be cancelled, and the holder of a certificate that, immediately prior to the
Effective Time, represented such Target Common Shares (a “Stock Certificate”), shall cease
to have any rights with respect thereto, except the right to receive, upon the surrender of such
Stock Certificate in accordance with Section 3.2, the Common Conversion Consideration,
without interest (the “Merger Consideration”), and any amounts payable pursuant to
Section 3.2(d). Notwithstanding the foregoing, if between the Agreement Date and the
Effective Time, the ADSs or Target Common Shares are changed into a different number of shares or a
different class because of any stock dividend or distribution, subdivision, reorganization,
reclassification, recapitalization, split, combination or exchange of shares, the Merger
Consideration shall be appropriately adjusted to reflect such event.
2. The Merger Agreement is hereby amended to replace Section 3.2 with the following:
“3.2 Surrender and Payment.
(a) Exchange Agent and Exchange Fund. Parent shall authorize one or more transfer agent(s) to
act as exchange agent hereunder (the “Exchange Agent”) with respect to the Merger. At or
prior to the Effective Time, Parent shall: (i) deposit, or cause to be deposited, with The Bank of
New York, as depositary for the ADSs, or any successor depositary thereto, a number of Parent
Ordinary Shares equal to the aggregate number of ADSs to be issued as Common Conversion
Consideration and the Option Consideration; and (ii) deposit, or cause to be deposited, with the
Exchange Agent the receipts representing such aggregate number of ADSs (the “Exchange
Fund”). The Exchange Agent shall deliver the applicable Merger Consideration in exchange for
surrendered Stock Certificates pursuant to Section 3.1 out of the Exchange Fund and shall
deliver any Option Consideration pursuant to Section 3.3 out of the Exchange Fund. Except
as contemplated by Section 3.2(d), the Exchange Fund shall not be used for any other
purpose.
(b) Exchange Procedures. As soon as practicable after the Effective Time, Parent shall cause
the Exchange Agent to send to each holder of record of a Stock Certificate a letter of transmittal
(which shall specify that delivery will be effected, and risk of loss and title to the Stock
Certificates shall pass, only upon delivery of the Stock Certificates to the Exchange Agent and
shall be in a form and have such other provisions as Parent and Target may reasonably specify) for
use in the exchange contemplated by Section 3.1 and instructions for use in effecting the
surrender of Stock Certificates for payment therefor in accordance with this Agreement (together,
the “Exchange Instructions”). Upon surrender of a Stock Certificate for cancellation to
the Exchange Agent together with such letter of transmittal, properly completed and duly executed,
and such other documents as may be required pursuant to the Exchange Instructions, the holder of
such Stock Certificate shall be entitled to receive in exchange therefor ADSs (which shall be in
uncertificated book-entry form unless a physical certificate is requested) representing, in the
aggregate, the whole number of ADSs that such holder has the right to receive pursuant to
Section 3.1 and Section 3.2(i), plus any amount payable pursuant to Section
3.2(d).
(c) Transferred Target Common Shares. If any portion of the Merger Consideration is to be
paid to a Person other than the registered holder of Target Common Shares represented by the Stock
Certificate(s) surrendered in exchange therefor, no such issuance or payment shall be made unless
(i) the Stock Certificate(s) so surrendered have been properly endorsed and otherwise are in proper
form for transfer and (ii) the Person requesting such issuance has paid to the Exchange Agent any
transfer or other Taxes required as a result of such issuance to a Person other than the registered
holder or established to the Exchange Agent’s satisfaction that such Tax has been paid or is not
applicable.
(d) Dividends and Distributions on ADSs. No dividends or other distributions declared or made
with respect to ADSs with a record date after the Effective Time shall be paid to the holder of any
unsurrendered Stock Certificate with respect to the ADSs that such holder would be entitled to
receive upon surrender of such Stock Certificate in accordance with Sections
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3.1 or 3.2(i). Following surrender of any such Stock Certificate, there shall be paid to such
holder of ADSs issuable in exchange therefor, without interest, (a) as soon as practicable
after the time of such surrender, the amount of dividends or other distributions with a record date
after the Effective Time theretofore paid with respect to such ADSs, and (b) at the appropriate
payment date, the amount of dividends or other distributions with a record date after the Effective
Time but prior to such surrender and a payment date subsequent to such surrender payable with
respect to such ADSs. For purposes of dividends or other distributions in respect of ADSs, all
ADSs to be issued pursuant to the Merger shall be entitled to dividends pursuant to the immediately
preceding sentence as if such ADSs were issued and outstanding as of the Effective Time.
(e) Termination of Exchange Fund. Any portion of the Exchange Fund that remains unclaimed by
the holders of Target Common Shares one year after the Effective Time shall be returned to Parent,
upon demand, and any such holder who has not exchanged such holder’s Stock Certificates in
accordance with this Section 3.2 prior to that time shall thereafter look only to the
Surviving Entity, as a general creditor thereof, to exchange such Stock Certificates pursuant to
Section 3.1 or 3.2(i) or to pay amounts to which such holder is entitled pursuant
to Section 3.2(d). Neither Parent nor the Surviving Entity shall be liable to any holder
of Target Common Shares for any such ADSs (or dividends or distributions with respect thereto) from
the Exchange Fund delivered to a public official pursuant to any abandoned property, escheat or
similar Law.
(f) Lost Certificates. If any Stock Certificate shall have been lost, stolen or destroyed,
upon the making of an affidavit of that fact by the Person claiming such Stock Certificate to be
lost, stolen or destroyed and, if required by Parent or the Exchange Agent, the posting by such
Person of a bond, in such reasonable amount as Parent or the Exchange Agent may direct, as
indemnity against any claim that may be made against it with respect to such Stock Certificate, the
Exchange Agent shall pay in exchange for such lost, stolen or destroyed Stock Certificate the
Merger Consideration payable in respect of the Target Common Shares represented by such Stock
Certificate, without interest.
(g) Withholding. Each of Parent, the Surviving Entity and the Exchange Agent shall be
entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement
to any holder of Target Common Shares or Target Stock Options such amounts as Parent, the Surviving
Entity or the Exchange Agent determine is required to deduct and withhold under the Code or any
provision of state, local, or foreign Tax Law with respect to the making of such payment. To the
extent that amounts are so withheld by Parent, the Surviving Entity or the Exchange Agent, such
withheld amounts shall be treated for all purposes of this Agreement as having been paid to the
holder of Target Common Shares or Target Stock Options, as applicable, in respect of which such
deduction and withholding was made by Parent, the Surviving Entity or the Exchange Agent, as the
case may be.
(h) Shares Held by Target Affiliates. Notwithstanding anything to the contrary herein, no
ADSs shall be issued in exchange for any Stock Certificate to any affiliate of
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Target (identified
pursuant to Section 7.16) until such Person shall have delivered to Parent a duly executed
Affiliate Letter as contemplated by Section 7.16 (if such Section is in effect).
(i) No Fractional Shares. No certificates or scrip or fractional ADSs or book-entry credit
representing such fractional share interests shall be issued upon the surrender of Stock
Certificates or cancellation of Target Stock Options. Each holder of Target Common Shares
exchanged or Target Stock Options cancelled pursuant to this Article III who would
otherwise have been entitled to receive a fraction of an ADS (after taking into account all Stock
Certificates delivered by such holder and all Target Stock Options cancelled in respect of such
holder) shall receive, in lieu of such fractional share, one ADS. The parties acknowledge that
rounding up fractional ADSs was not separately bargained for consideration but merely represents a
mechanical rounding off for purposes of simplifying the corporate and accounting problems that
would otherwise be caused by the issuance of fractional ADSs.”
3. The Merger Agreement is hereby amended to replace Section 3.3 with the following:
“3.3 Stock Options. Prior to the Effective Time, Target and Parent shall take all such action
as may be necessary to cause each unexpired and unexercised option to purchase Target Common Shares
(a “Target Stock Option”) granted under Target’s 1992 Stock Option Plan (the “1992
Plan”), 1997 Officers’ & Directors’ Stock Option Plan (the “1997 Plan”) and the 2002
Stock Option Plan (the “2002 Plan” and, together with the 1992 Plan and 1997 Plan, the
“Target Stock Option Plans”) which is outstanding immediately prior to the Effective Time,
whether vested or unvested, to be automatically cancelled, effective as of the Effective Time, in
exchange for a number of ADSs (less any applicable income or employment Tax withholding as provided
in Section 3.2(g)) based on the following net exercise value calculation (adjusted for lost
opportunity cost based on a Black Scholes valuation (the “Black Scholes Adjustment”)):
X
|
= | A*B*C+A*D-A*E | |||
| C | |||||
| Or X = A*(B*C+D-E)/C | |||||
Where:
X =
|
Number of ADSs Issuable for Target Stock Option | |
A =
|
Number of Target Company Shares Acquirable Upon Exercise of Target Stock Option | |
B =
|
Exchange Ratio | |
C =
|
Average of the per share closing prices as reported by the New York Stock Exchange of ADSs for the twenty consecutive trading days ending on the day prior to the Target Meeting (the “ADS Market Price”) | |
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D =
|
Black Scholes Adjustment of $1.23 | |
E =
|
Option Exercise Price |
Provided,
however, that if the exercise price per share of any such Target
Stock Option is greater than or equal to the ADS Market Price multiplied by the Exchange Ratio, then such Target Stock Option
shall be exchanged for the aggregate number of ADSs (less any applicable income or employment Tax
withholding as provided in Section 3.2(g)) equal to (i) the number of Target Company Shares
acquirable upon exercise of Target Stock Option multiplied by (ii) $1.23 divided by (iii) the ADS
Market Price.
Prior to the Closing, Target shall take or cause to be taken any and all actions reasonably
necessary and shall use its commercially reasonable efforts to obtain the consent of each holder of
a Target Stock Option (which consent shall also include a release of any claims in connection with
the Target Stock Options following payment in accordance with this Section 3.3), to give
effect to the treatment of Target Stock Options pursuant to this Section 3.3. Promptly
following the Effective Time, the Exchange Agent shall deliver the Option Consideration to each
holder of Target Stock Options. Upon the Effective Time, the Target Stock Option Plans shall
terminate and be of no further force or effect.”
4. The Merger Agreement is hereby amended to delete Section 5.12 in its entirety.
5. The Merger Agreement is hereby amended to replace Section 8.2(h) with the following:
“(h) Parent shall have received evidence reasonably satisfactory to it that the aggregate
amount of all unpaid costs and expenses incurred by Target or its Subsidiaries in connection with
this Agreement and the Transactions is not in excess of $275,000 (it being understood and agreed
that any costs and expenses that Target shall pay from its available cash at Closing shall be
considered paid from such available cash for purposes of this Section 8.2(h)); and”
6. The Merger Agreement is hereby amended to add the following as Section 8.2(i):
“(i) Parent shall have received a release, in form and substance acceptable to Parent, from
each holder of Target Stock Options that, upon receipt of the amounts set forth in Section 3.3, all
Target Stock Options shall be cancelled and no further amounts shall be owing in respect of the
thereof or the Target Stock Option.”
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7. The Merger Agreement is hereby amended to replace Section 10.1(b) with the following:
“(b) by either Parent or Target, if the Effective Time has not occurred on or before June 30,
2008 (the “Termination Date”); provided, however, that the right to terminate
this Agreement pursuant to this Section 10.1(b) shall not be available to a party
whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in,
the failure of the Merger to have been consummated on or before such date; provided, further, that
the Termination Date shall be July 15, 2008 if either (i) the Proxy Statement/Prospectus has not
been mailed to Target’s shareholders on or before June 2, 2008 or (ii) the Target Meeting is not
convened on or before June 30, 2008;”
8. The Merger Agreement is hereby amended to delete the following defined term from Section
12.2:
| Term | Section | |||
Substituted Option
|
3.3 | (a) | ||
9. The Merger Agreement is hereby amended to add the following defined terms to Section 12.2:
| Term | Section | |||
Option Consideration
|
3.3 | |||
Option Value
|
3.3 | |||
10. This Amendment may be executed in one or more counterparts, all of which shall be
considered one and the same, and shall become effective when one or more such counterparts have
been signed by each of the parties and delivered to each party.
11. This Amendment shall be construed, interpreted, and governed in accordance with the laws
of the state of Colorado, without reference to rules relating to conflicts of law.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the
date first set forth above.
| ANGLOGOLD XXXXXXX LIMITED |
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| By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxx | |||
| Title: | Senior Vice President -- Corporate Development and Executive Counsel | |||
| ANGLOGOLD XXXXXXX USA INCORPORATED |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxx | |||
| Title: | Vice President | |||
| GCGC LLC By: AngloGold Xxxxxxx USA Incorporated Its: Sole Member |
||||
| By: | /s/ Xxxxx X’Xxxxxx | |||
| Name: | Xxxxx X’Xxxxxx | |||
| Title: | Vice President and Secretary | |||
| GOLDEN CYCLE GOLD CORPORATION |
||||
| By: | /s/ R. Xxxxxxx Xxxxxxx | |||
| Name: | R. Xxxxxxx Xxxxxxx | |||
| Title: | President, Chief Executive Officer and Treasurer | |||
