SHAREHOLDER AGREEMENT
EXHIBIT 10.2
SHAREHOLDER AGREEMENT, dated as of January 11, 2008 (this “Agreement”), by the
undersigned shareholder (the “Shareholder”) of Golden Cycle Gold Corporation, a Colorado
corporation (“Target”), for the benefit of AngloGold Xxxxxxx Limited, a corporation
organized under the laws of the Republic of South Africa (“Parent”).
RECITALS
WHEREAS, Parent, GCGC LLC, a Colorado limited liability company and an indirect wholly owned
subsidiary of Parent (“Merger Sub”), and Target are entering into the Agreement and Plan of
Merger, dated as of January 11, 2008 (the “Merger Agreement”), which provides for the
merger of Target with and into Merger Sub (the “Merger”);
WHEREAS, the Shareholder owns that number of shares of common stock, no par value per share,
of Target (“Target Common Stock”), appearing on the signature page hereof (such shares of
Target Common Stock, together with any other shares of capital stock of Target acquired by such
Shareholder after the date hereof and during the term of this Agreement, being collectively
referred to herein as the “Subject Shares”); and
WHEREAS, as a condition to its willingness to enter into the Merger Agreement, Parent has
required that the Shareholder agree, and in order to induce Parent to enter into the Merger
Agreement the Shareholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements set
forth herein, the Shareholder agrees as follows:
1. Covenants of Shareholder. Until the termination of this Agreement in accordance
with Section 3:
(a) The Shareholder shall attend the Target Meeting, in person or by proxy, and at the
Target Meeting (or at any adjournment thereof) or in any other circumstances upon which a
vote, consent or other approval with respect to the Merger and the Merger Agreement is
sought, the Shareholder shall vote (or cause to be voted) the Subject Shares in favor of (i)
the Merger, the adoption of the Merger Agreement and the approval of the terms thereof and
each of the other transactions contemplated by the Merger Agreement and (ii) any other
matter necessary to the consummation of the Merger and the other transactions contemplated
by the Merger Agreement.
(b) At any meeting of shareholders of Target or at any adjournment thereof or in any
other circumstances upon which the Shareholder’s vote, consent or other approval is sought,
the Shareholder shall vote (or cause to be voted) the Subject Shares against (i) any merger
agreement or merger (other than the Merger Agreement and the Merger), consolidation,
combination, sale of substantial assets, reorganization, recapitalization, dissolution,
liquidation or winding up of or by Target or any of its Subsidiaries or any other
Acquisition Proposal, (ii) any amendment of Target’s articles of incorporation or bylaws or
other proposal or transaction involving Target or any of its Subsidiaries, which
amendment or other proposal or transaction would in any manner impede, frustrate,
prevent or nullify the Merger, the Merger Agreement or any of the other transactions
contemplated by the Merger Agreement or change in any manner the voting rights of any class
of capital stock of Target or (iii) any action that would result in a breach of any
representation, warranty or covenant made by Target in the Merger Agreement. The
Shareholder further agrees not to commit or agree to take any action inconsistent with the
foregoing.
(c) The Shareholder agrees not to (i) sell, transfer (including by operation of law),
pledge, assign, encumber or otherwise dispose of (including by gift) (collectively,
“Transfer”), or enter into any contract, option or other arrangement (including any
profit-sharing arrangement) with respect to the Transfer of the Subject Shares to any person
or (ii) enter into any voting arrangement (other than this Agreement), whether by proxy,
voting agreement or otherwise, or grant or appoint any power of attorney in relation to the
Subject Shares, and agrees not to commit or agree to take any of the foregoing actions.
(d) The Shareholder shall not, nor shall the Shareholder authorize any investment
banker, consultant, attorney, agent or other advisor or representative of the Shareholder
to, (i) directly or indirectly initiate, solicit or knowingly encourage or facilitate
(including by furnishing non-public information) any inquiries regarding, or the making or
submission of any proposal that constitutes, or that may reasonably be expected to lead to,
an Acquisition Proposal or (ii) participate or engage in discussions or negotiations with,
or disclose any non-public information regarding Target or any of its Subsidiaries or afford
access to the properties, books or records of Target or any of its Subsidiaries to, any
Person that has made an Acquisition Proposal or to any Person that the Shareholder knows or
has reason to believe is contemplating making an Acquisition Proposal.
(e) The Shareholder shall use the Shareholder’s commercially reasonable efforts to
take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and
cooperate with Target and Parent in doing, all things necessary, proper or advisable to
support and to consummate and make effective, in the most expeditious manner practicable,
the Merger and the other transactions contemplated by the Merger Agreement.
(f) The Shareholder agrees to promptly notify Parent in writing of the nature and
amount of any acquisition by the Shareholder of any voting securities of Target acquired by
the Shareholder hereafter and promptly notify Parent in writing of the nature and amount of
any inquiry regarding, or the making or submission of any proposal that would constitute, or
that may reasonably be expected to lead to, an Acquisition Proposal.
(g) The Shareholder hereby irrevocably grants to, and appoints any individual or
individuals who shall hereafter be designated by Parent, and each of them, the Shareholder’s
proxy and attorney-in-fact (with full power of substitution), for and in the name, place and
stead of the Shareholder, to vote, or cause to be voted, the Shareholder’s Subject Shares,
or grant a consent or approval in respect of such Subject Shares, at every
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annual, special or other meeting of the shareholders of Target, and at any adjournment
or adjournments thereof, or pursuant to any consent in lieu of a meeting or otherwise,
solely in the manner specified in Section 1(a) and (b) hereof;
provided, however, that the foregoing grant of proxy shall terminate
immediately upon termination of this Agreement in accordance with its terms, including with
respect to matters as to which a record date has heretofore passed.
(h) The Shareholder specifically recognizes and agrees that this grant of proxy is
coupled with an interest. This appointment of proxy shall survive the bankruptcy, merger,
dissolution, liquidation, death or incapacity of the Shareholder. The Shareholder
represents that any proxies heretofore given in respect of the Shareholder’s Subject Shares
are not irrevocable, and that any such proxies are hereby revoked.
2. Representations and Warranties. The Shareholder represents and warrants to Parent
as follows:
(a) The Shareholder is the record and beneficial owner of, and has good and marketable
title to, the Subject Shares, free and clear of any liens, claims, options or other
encumbrances. The Shareholder does not own, of record or beneficially, or have the right to
vote any shares of capital stock of Target other than the Subject Shares. The Shareholder
has the sole right to vote, and the sole power of disposition with respect to, the Subject
Shares, and none of the Subject Shares is subject to any voting trust, proxy or other
agreement, arrangement or restriction with respect to the voting or disposition of such
Subject Shares, except as contemplated by this Agreement. The failure of the spouse of the
Shareholder to be a party or signatory to this Agreement shall not (i) prevent the
Shareholder from performing his obligations and consummating the transactions contemplated
hereunder or (ii) prevent this Agreement from constituting the legal, valid and binding
obligation of such Shareholder in accordance with its terms.
(b) This Agreement has been duly executed and delivered by the Shareholder. Assuming
the due authorization, execution and delivery of this Agreement by Parent, this Agreement
constitutes the valid and binding agreement of the Shareholder enforceable against the
Shareholder in accordance with its terms, except as such enforceability may be subject to
the effects of bankruptcy, insolvency, reorganization, arrangement, moratorium fraudulent
transfer, statutes of limitation, or other similar laws and judicial decisions affecting or
relating to the rights of creditors generally. The execution and delivery of this Agreement
by the Shareholder does not and will not conflict with, result in a breach of, or constitute
a default under, or give rise to any rights of termination, amendment, acceleration,
suspension, revocation or cancellation of, any agreement, order or other instrument binding
upon the Shareholder, nor require any regulatory registration, filing or approval.
(c) The Shareholder acknowledges receipt and review of the Merger Agreement.
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3. Termination. The obligations of the Shareholder hereunder shall terminate upon the
earlier to occur of (i) the termination of the Merger Agreement pursuant to Section 10.1
thereof and (ii) the Effective Time.
4. Further Assurances. The Shareholder will, from time to time, execute and deliver,
or cause to be executed and delivered, such additional or further consents, documents and other
instruments as Parent may reasonably request for the purpose of effectively carrying out the
transactions contemplated by this Agreement.
5. Successors, Assigns and Transferees Bound. Any successor, assignee or transferee
(including a successor, assignee or transferee as a result of the death of the Shareholder, such as
an executor or heir) shall be bound by the terms hereof, and the Shareholder shall take any and all
actions necessary to obtain the written confirmation from such successor, assignee or transferee
that it is bound by the terms hereof.
6. Remedies. The Shareholder acknowledges that money damages would be both
incalculable and an insufficient remedy for any breach of this Agreement by it, and that any such
breach would cause Parent irreparable harm. Accordingly, the Shareholder agrees that in the event
of any breach or threatened breach of this Agreement, Parent, in addition to any other remedies at
law or in equity it may have, shall be entitled, without the requirement of posting a bond or other
security, to equitable relief, including injunctive relief and specific performance.
7. Severability. If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or invalidated so long as the
economic or legal substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such a determination, the parties shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated hereby be consummated
as originally contemplated to the fullest extent possible.
8. Amendment. This Agreement may be amended only by means of a written instrument
executed and delivered by both the Shareholder and Parent.
9. Jurisdiction. The parties hereto agree that any suit, action or proceeding seeking
to enforce any provision of, or based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby shall be brought in any federal court located in
the State of Colorado or any Colorado state court, and each of the parties hereby irrevocably
consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in
any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law,
any objection that it may now or hereafter have to the laying of the venue of any such suit, action
or proceeding in any such court or that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum. Process in any such suit, action or proceeding
may be served on any party anywhere in the world, whether within or without the jurisdiction of any
such court. Without limiting the foregoing, each party agrees that
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service of process on such party as provided in Section 12 shall be deemed effective
service of process on such party.
10. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii)
EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY MAKES
THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.
11. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Colorado, without regard to the conflicts of law rules of such state.
12. Notice. All notices, requests and other communications to any party hereunder
shall be in writing (including facsimile transmission) and shall be given,
(a) if to Parent, to:
AngloGold Xxxxxxx Limited
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx 0000
X.X. Xxx 00000
Xxxxxxxxxxxx 0000 Xxxxx Xxxxxx
Attention:
Facsimile No.:
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx 0000
X.X. Xxx 00000
Xxxxxxxxxxxx 0000 Xxxxx Xxxxxx
Attention:
Facsimile No.:
with a copy to:
Xxxxx Xxxxxx & Xxxxxx LLP
0000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx XX, Esq.
Facsimile No.: 000-000-0000
Xxxxx Xxxxxx & Xxxxxx LLP
0000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx XX, Esq.
Facsimile No.: 000-000-0000
(b) if to the Shareholder to:
Xxxxxx X. Xxxxxxxxx
0000 Xxxxxx Xxxxx
Xxxx, Xxxxxx 00000
Facsimile No.: 000-000-0000
0000 Xxxxxx Xxxxx
Xxxx, Xxxxxx 00000
Facsimile No.: 000-000-0000
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with a copy to:
Xxxxxx & Whitney, LLP
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxx, Esq.
Facsimile No.: (000) 000-0000
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxx, Esq.
Facsimile No.: (000) 000-0000
All such notices, requests and other communications shall be deemed given when delivered
personally, one day after being delivered to a nationally recognized overnight courier or when sent
by facsimile (with a confirmatory copy sent by such overnight courier).
13. Capitalized Terms. Capitalized terms used in this Agreement that are not defined
herein shall have such meanings as set forth in the Merger Agreement.
14. Counterparts. This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.
15. Capacity. The parties hereto agree and acknowledge that the Shareholder does not
make any agreement or understanding in his capacity as a director or officer of Target.
Shareholder has entered into this Agreement solely in his capacity as the beneficial owner of the
Subject Shares and nothing herein shall expand, limit or affect any actions taken by the
Shareholder in his capacity as an officer or director of Target.
[Signatures on Following Page]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| /s/ Xxxxxx X. Xxxxxxxxx | ||||
| Number of shares of Target Common Stock owned on the date hereof: 0 |
| Accepted and Agreed to as of the date set forth above: |
|||||||||
| ANGLOGOLD XXXXXXX LIMITED | |||||||||
By: |
/s/ Xxxxxx X. Xxxxxxxxx | ||||||||
| Name: | Xxxxxx X. Xxxxxxxxx | ||||||||
| Title: | Executive Officer - Law, Health, Safety and Environment | ||||||||
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