SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13G/A
(Rule 13d-102)
Information to be Included in Statements Filed Pursuant to Sections
240.13d-1(b), (c), and (d) amd Amendments Thereto Filed Pursuant to Section
240.13d-2.
Under the Securities Exchange Act of 1934
(Amendment No. 9)*
Golden Cycle Gold Corporation
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(Name of Issuer)
Common Stock, no par value
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(Title of Class of Securities)
380894 10 5
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(CUSIP Number)
January 11, 2008
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(Date of Event Which Requires Filing of this Statement)
Check the appropriate box to designate the rule pursuant to which this Schedule
is filed:
[X] Rule 13d-1(b)
[ ] Rule 13d-1(c)
[ ] Rule 13d-1(d)
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter the
disclosures provided in a prior cover page.
The information required in the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 1 of 11 Pages
CUSIP No. 380894 10 5 13G
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1 NAME OF REPORTING PERSON
Midas Fund, Inc.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
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3 SEC USE ONLY
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4 CITIZENSHIP OR PLACE OF ORGANIZATION
Maryland
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NUMBER OF 5 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY --------------------------------------------------------------
OWNED BY 6 SHARED VOTING POWER
EACH 1,964,500
REPORTING --------------------------------------------------------------
PERSON 7 SOLE DISPOSITIVE POWER
WITH -0-
--------------------------------------------------------------
8 SHARED DISPOSITIVE POWER
1,964,500
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9 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,964,500
--------------------------------------------------------------------------------
10 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES [ ]
--------------------------------------------------------------------------------
11 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9)
20.81%
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12 TYPE OF REPORTING PERSON
IV
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Page 2 of 11 Pages
CUSIP No. 380894 10 5 13G
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1 NAME OF REPORTING PERSON
Midas Management Corporation
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
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3 SEC USE ONLY
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4 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF 5 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY --------------------------------------------------------------
OWNED BY 6 SHARED VOTING POWER
EACH See response to Item 4 below.
REPORTING --------------------------------------------------------------
PERSON 7 SOLE DISPOSITIVE POWER
WITH -0-
--------------------------------------------------------------
8 SHARED DISPOSITIVE POWER
See response to Item 4 below.
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9 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See response to Item 4 below.
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10 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES [ ]
--------------------------------------------------------------------------------
11 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9)
See response to Item 4 below.
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12 TYPE OF REPORTING PERSON
IA
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Page 3 of 11 Pages
CUSIP No. 380894 10 5 13G
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1 NAME OF REPORTING PERSON
Winmill & Co. Incorporated
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
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3 SEC USE ONLY
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4 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
NUMBER OF 5 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY --------------------------------------------------------------
OWNED BY 6 SHARED VOTING POWER
EACH See response to Item 4 below.
REPORTING --------------------------------------------------------------
PERSON 7 SOLE DISPOSITIVE POWER
WITH -0-
--------------------------------------------------------------
8 SHARED DISPOSITIVE POWER
See response to Item 4 below.
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9 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See response to Item 4 below.
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10 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES [ ]
--------------------------------------------------------------------------------
11 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9)
See response to Item 4 below.
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12 TYPE OF REPORTING PERSON
HC
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Page 4 of 11 Pages
CUSIP No. 380894 10 5 13G
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1 NAME OF REPORTING PERSON
Bassett S. Winmill
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
--------------------------------------------------------------------------------
NUMBER OF 5 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY --------------------------------------------------------------
OWNED BY 6 SHARED VOTING POWER
EACH See response to Item 4 below.
REPORTING --------------------------------------------------------------
PERSON 7 SOLE DISPOSITIVE POWER
WITH -0-
--------------------------------------------------------------
8 SHARED DISPOSITIVE POWER
See response to Item 4 below.
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9 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See response to Item 4 below.
--------------------------------------------------------------------------------
10 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES [ ]
--------------------------------------------------------------------------------
11 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9)
See response to Item 4 below.
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12 TYPE OF REPORTING PERSON
IN
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Page 5 of 11 Pages
Item 1. (a) Name of Issuer:
Golden Cycle Gold Corporation
(b) Address of Issuer's Principal Executive Offices:
1515 South Tejon Street
Suite 201
Colorado Springs, Colorado 80906
Item 2. (a) Names of Persons Filing:
Midas Fund, Inc.
Midas Management Corporation
Winmill & Co. Incorporated
Bassett S. Winmill
(b) Address of Principal Business Office:
11 Hanover Square
New York, NY 10005
(c) Citizenship:
Midas Fund, Inc. - Maryland corporation
Midas Management Corporation - Delaware corporation
Winmill & Co. Incorporated - Delaware corporation
Bassett S. Winmill - U.S.A.
(d) Title of Class of Securities:
Common Stock, no par value
(e) CUSIP Number:
380894 10 5
Item 3. If this statement is filed pursuant to sections 240.13d-1(b) or
240.13d-2(b) or (c), check whether the person filing is a(n):
(a) [ ] Broker or dealer registered under section 15 of the Act (15 U.S.C.
78o);
(b) [ ] Bank as defined in section 3(a)(6) of the Act (15 U.S.C. 78c);
(c) [ ] Insurance company as defined in section 3(a)(19) of the Act (15
U.S.C. 78c);
(d) [X] Investment company registered under section 8 of the Investment
Company Act (15 U.S.C. 80a-8);
(e) [X] Investment adviser in accordance with section
240.13d-1(b)(1)(ii)(E);
(f) [ ] Employee benefit plan or endowment fund in accordance with section
240.13d-1(b)(1)(ii)(F);
(g) [X] Parent holding company or control person in accordance with
section 240.13d-1(b)(ii)(G);
(h) [ ] Savings association as defined in section 3(b) of the Federal
Deposit Insurance Act (12 U.S.C. 1813);
(i) [ ] Church plan that is excluded from the definition of an investment
company under Section 3(c)(14) of the Investment Company Act of 1940
(15 U.S.C. 80a-3);
(j) [ ] Group, in accordance with Section 240.13d-1(b)(1)(ii)(J).
Mr. Winmill may be deemed a controlling person of Winmill & Co.
Incorporated, which is the parent company of Midas Management Corporation,
an investment adviser registered under the Investment Advisers Act of 1940.
Midas Management Corporation is the investment adviser to Midas Fund, Inc.,
which is an investment company registered under the Investment Company Act
of 1940. Mr. Winmill is filing this statement jointly with the other
parties to this statement solely as a result of his ability to control over
Winmill & Co. Incorporated, which may be deemed to give Mr. Winmill the
ability to control over Midas Management Corporation, which acts as
investment manager of Midas Fund, Inc.
Page 6 of 11 Pages
Item 4. Ownership.
(a) Amount Beneficially Owned
Mr. Winmill and Winmill & Co. Incorporated do not own of record any shares
of the Issuer's common stock. However, Winmill & Co. Incorporated, as the parent
company of Midas Management Corporation, which is the investment adviser to
Midas Fund, Inc., may be deemed to have the power to exercise or to direct the
exercise of voting and/or dispositive power with respect to shares of the
Issuer's common stock held by Midas Fund, Inc. Mr. Winmill, as the controlling
person of Winmill & Co. Incorporated, may also be deemed to have the power to
exercise or to direct the exercise of voting and/or dispositive power with
respect to shares of the Issuer's common stock held by Midas Fund, Inc. All
shares reported herein have been acquired by Midas Fund, Inc., and Mr. Winmill
and Winmill & Co. Incorporated specifically disclaim beneficial ownership over
any shares of the Issuer's common stock that they or Midas Management
Corporation may be deemed to beneficially own.
As a result of its role as investment adviser to Midas Fund, Inc., Midas
Management Corporation may be deemed to be the owner of shares of the Issuer's
common stock held by Midas Fund, Inc.
The filing of this statement shall not be construed as an admission that
Midas Management Corporation, Winmill & Co. Incorporated, or Mr. Winmill are,
for purposes of Sections 13(d) or 13(g) of the Securities Exchange Act of 1934,
as amended, the beneficial owner of any shares covered by this statement.
Midas Fund, Inc.:
(b) Percent of Class: 20.81%
(c) Number of shares as to which the person has:
(i) Sole power to vote or to direct the vote: 0.
(ii) Shared power to vote or to direct the vote: 1,964,500.
(iii) Sole power to dispose or to direct the disposition of: 0.
(iv) Shared power to dispose or to direct the disposition of: 1,964,500.
Midas Management Corporation:
(b) Percent of Class: See disclosure above.
(c) Number of shares as to which the person has:
(i) Sole power to vote or to direct the vote: 0.
(ii) Shared power to vote or to direct the vote: See disclosure above.
(iii) Sole power to dispose or to direct the disposition of: 0.
(iv) Shared power to dispose or to direct the disposition of: See
disclosure above.
Winmill & Co. Incorporated:
(b) Percent of Class: See disclosure above.
(c) Number of shares as to which the person has:
(i) Sole power to vote or to direct the vote: 0.
(ii) Shared power to vote or to direct the vote: See disclosure above.
(iii) Sole power to dispose or to direct the disposition of: 0.
(iv) Shared power to dispose or to direct the disposition of: See
disclosure above.
Bassett S. Winmill
(b) Percent of Class: See disclosure above.
(c) Number of shares as to which the person has:
(i) Sole power to vote or to direct the vote: 0.
(ii) Shared power to vote or to direct the vote: See disclosure above.
(iii) Sole power to dispose or to direct the disposition of: 0.
(iv) Shared power to dispose or to direct the disposition of: See
disclosure above.
Page 7 of 11 Pages
Item 5. Ownership of Five Percent or Less of a Class.
If this statement is being filed to report the fact that as of the date hereof
the reporting person has ceased to be the beneficial owner of more than five
percent of the class of securities, check the following [ ].
Item 6. Ownership of More Than Five Percent on Behalf of Another Person.
Not Applicable.
Item 7. Identification and Classification of the Subsidiary which Acquired the
Security Being Reported on By the Parent Holding Company.
Not Applicable.
Page 8 of 11 Pages
Item 8. Identification and Classification of Members of the Group.
Not Applicable.
Item 9. Notice of Dissolution of Group.
Not Applicable.
Item 10. Purpose of filing.
To file the Shareholder Agreement, dated as of January 11, 2008 by Midas
Fund, Inc. for the benefit of AngloGold Ashanti Limited,a corporation organized
under the laws of the Republic of South Africa. The shareholder agreement
between Midas Fund, Inc. and AngloGold Ashanti is included as Exhibit B hereto.
Item 11. Certification.
By signing below the undersigned certify that, to the best of their
knowledge and belief, the securities referred to above were acquired in the
ordinary course of business and were not acquired for the purpose of and do not
have the effect of changing or influencing the control of the issuer of such
securities and were not acquired in connection with or as a participant in any
transaction having such purpose or effect.
Page 9 of 11 Pages
Signature
After reasonable inquiry and to the best of my knowledge and belief, the
undersigned certify that the information set forth in this statement is true,
complete and correct.
Date: January 25, 2008
MIDAS FUND, INC.
By: /s/ Thomas B. Winmill
-------------------------------
Name: Thomas B. Winmill
Title: President
MIDAS MANAGEMENT CORPORATION
By: /s/ Thomas B. Winmill
-------------------------------
Name: Thomas B. Winmill
Title: President
WINMILL & CO. INCORPORATED
By: /s/ Thomas B. Winmill
-------------------------------
Name: Thomas B. Winmill
Title: President
BASSETT S. WINMILL
/s/ Thomas B. Winmill on behalf of Bassett S. Winmill by
Power of Attorney signed 12/11/01.
-------------------------------------------------------------
Bassett S. Winmill
Page 10 of 11 Pages
Exhibit A
Joint Filing Agreement
In accordance with Rule 13d-1 (f) under the Securities Exchange Act of
1934, the persons named below agree to the joint filing on behalf of each of
them of a statement on Schedule 13G (including amendments thereto) with respect
to the common stock of Golden Cycle Corporation and further agree that this
Joint Filing Agreement be included as an Exhibit to such joint filing. In
evidence thereof, the undersigned hereby execute this Agreement as of the 25th
day of January, 2008.
MIDAS FUND, INC.
By: /s/ Thomas B. Winmill
-------------------------------
Name: Thomas B. Winmill
Title: President
MIDAS MANAGEMENT CORPORATION
By: /s/ Thomas B. Winmill
-------------------------------
Name: Thomas B. Winmill
Title: President
WINMILL & CO. INCORPORATED
By: /s/ Thomas B. Winmill
-------------------------------
Name: Thomas B. Winmill
Title: President
Bassett S. Winmill
/s/ Thomas B. Winmill on behalf of Bassett S. Winmill by
Power of Attorney signed 12/11/01.
-------------------------------------------------------------
Bassett S. Winmill
EXHIBIT B
SHAREHOLDER AGREEMENT
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 Ashanti 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 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.
(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.
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 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 Ashanti Limited
11 Diagonal Street
Johannesburg 2001
P.O. Box 62117
Marshalltown 2107 South Africa
Attention:
Facsimile No.: ___________
with a copy to:
Davis Graham & Stubbs LLP
1550 Seventeenth Street, Suite 500
Denver, Colorado 80202
Attention: Ronald R. Levine II, Esq.
Facsimile No.: 303-893-1379
(b) if to the Shareholder to:
Midas Fund, Inc.
11 Hanover Square
New York, NY 10005
Attention: Mr. Thomas B. Winmill
Facsimile No.: 1-212-363-1102
with a copy to:
Dorsey & Whitney, LLP
370 Seventeenth Street, Suite 4700
Denver, CO 80202-5647
Attention: Kenneth G. Sam, Esq.
Facsimile No.: (303) 629-3450
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.
[Signatures on Following Page]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
MIDAS FUND, INC.
By: /s/ Thomas B. Winmill
----------------------------
Name: Thomas B. Winmill
Title: President
Number of shares of Target Common
Stock owned on the date hereof:
1,964,500
Accepted and Agreed to as of the date set forth above:
ANGLOGOLD ASHANTI LIMITED
By: /s/ ANGLOGOLD ASHANTI LIMITED
-----------------------------