| Fri 19 Dec 2008, 9:31 | | AFO - Aflease Gold Limited - Order Of Court |
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AFO
AFO
AFO - Aflease Gold Limited - Order Of Court
Aflease Gold Limited
(Incorporated in the Republic of South Africa)
(Registration number 1984/006179/06)
JSE Share code: AFO
ISIN: ZAE000075867
International Prime QX (OTCQX): AFSGY
("Aflease")
IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
Wednesday, 17 December 2008 CASE NO: 55875/2008
Before the Honourable Acting Justice Potterill
In the ex parte application of:
AFLEASE GOLD LIMITED
(Incorporated in the Republic of South Africa)
(Registration No. 1984/006179/06) Applicant
ORDER OF COURT
Upon the motion of counsel for the Applicant and having read the papers filed of
record:
IT IS ORDERED THAT:
1. A meeting ("scheme meeting") in terms of section 311(1) of the Companies
Act, 1973 ("Companies Act") of the ordinary shareholders of the Applicant
registered as such at 17:00 on Friday, 16 January 2009 (or if the scheme meeting
is adjourned, registered as such at 17:00 on the business day, i.e. any day
other than a Saturday, Sunday or official public holiday in South Africa, which
is two business days before the date of such adjourned meeting), but excluding
BMA Gold Limited ("BMA") and any of its subsidiary companies, any subsidiary
company (within the meaning of section 1 of the Companies Act) of the Applicant
and the trustees for the time-being of the Aflease Gold Limited Share Incentive
Scheme Trust ("disqualified shareholders"), which ordinary shareholders of the
Applicant (with the exclusion of the disqualified shareholders) are herein
collectively referred to as the "scheme members":
1.1 be convened under the chairmanship of the Chairperson referred to in
paragraph 2 of this Order of Court ("Order"); and
1.2 be held at 09:00 on Wednesday, 21 January 2009 (or on any adjourned date
determined by the Chairperson) at The Place, 1 Sandton Drive, South Wing,
Sandown, Johannesburg,
for the purpose of considering and, if deemed fit, approving with or without
modification, a scheme of arrangement in terms of section 311 of the Companies
Act ("scheme") proposed by BMA between the Applicant and the scheme members,
substantially in the form of the draft scheme attached as annexure "C.3" to the
application in respect of which this Order is given ("Application"), provided
that the scheme meeting shall not be entitled to agree to any modification of
the scheme which will have the effect of diminishing the rights to accrue in
terms thereof to Applicant`s ordinary shareholders who will, on the
implementation of the scheme, become entitled to the benefits thereof.
2. Jonathan Schlosberg or failing him any other director of the attorneys` firm
Bowman Gilfillan Inc., nominated for that purpose by Applicant`s attorneys of
record, be and is hereby appointed as chairperson of the scheme meeting
("Chairperson").
3. The Chairperson is authorised to:
3.1 procure the publication of the notice of scheme meeting by the Applicant,
in the manner described in paragraph 4;
3.2 procure dispatch to the scheme members of the scheme documents
substantially in the form of annexure "C" (including annexures "C.1" to "C.10")
to the Application ("scheme documents") and the pre-listing statement of BMA
("pre-listing statement") in respect of its proposed inward dual primary listing
on the JSE Limited, Johannesburg ("JSE");
3.3 convene the scheme meeting;
3.4 adjourn the scheme meeting from time to time, if the Chairperson considers
it necessary or desirable to do so;
3.5 appoint one or more scrutineers for the purpose of the scheme meeting or
any other adjournment thereof;
3.6 determine:
3.6.1 the validity and acceptability of forms of proxy submitted for use at the
scheme meeting and/or any adjournment thereof; and
3.6.2 the procedure to be followed at the scheme meeting and/or any adjournment
thereof;
3.7 accept the forms of proxy handed to him by no later than 10 (ten) minutes
before the scheme meeting is due to commence or recommence after any
adjournment.
4. The Applicant shall cause a notice convening the scheme meeting
(substantially in the form of annexure "C.1" attached to the Application) to be
published once in each of the Government Gazette, Business Day, Beeld, Sunday
Times and Rapport in South Africa, at least 14 (fourteen) calendar days before
the date of the scheme meeting. The said notice shall state:
4.1 the time, date and venue of the scheme meeting;
4.2 that the scheme meeting has been convened in terms of this Order to
consider and, if deemed fit, approve, with or without modification, the scheme;
4.3 that a copy of this Order, the scheme documents and the pre-listing
statement may be inspected free of charge during normal business hours at any
time prior to the scheme meeting at the registered office of the Applicant at
First Floor, 45 Empire Road, Parktown, Johannesburg;
4.4 that a copy of this Order, the scheme documents and the pre-listing
statement may be obtained free of charge on request during normal business hours
at any time prior to the scheme meeting at the address given in paragraph 4.3
above; and
4.5 the basic characteristics of the scheme.
5. Copies of:
5.1 the scheme documents;
5.2 the pre-listing statement; and
5.3 this Order,
shall be sent by the Applicant by pre-paid registered post at least 14
(fourteen) calendar days before the date of the scheme meeting to:
5.4 each ordinary shareholder of the Applicant whose name appears:
5.4.1 on the Applicant`s register of shareholders and whose name and address is
identified by the transfer secretaries of the Applicant ("Transfer Secretaries")
as that of an ordinary shareholder of the Applicant; or
5.4.2 on the Applicant`s sub-registers, as administered by a Central Securities
Depository Participant ("CSDP") and whose name and address on such sub-register
is identified as that of an ordinary shareholder of the Applicant to the
Transfer Secretaries by Strate Limited ("Strate") after enquiry by the Transfer
Secretaries (in terms of the statutory rules and regulations governing
dematerialised shares); and
5.5 each person whose name and address is identified to the Transfer
Secretaries by Strate after enquiry by the Transfer Secretaries (in terms of the
statutory rules and regulations governing dematerialised shares) as being a
person who is beneficially entitled to ordinary shares in the Applicant
("beneficial shareholder") and to whom the relevant CSDPs and JSE broking
members (equities) of the JSE whose nominee companies hold dematerialised shares
on behalf of beneficial shareholders are obliged by statute, regulation,
agreement or otherwise to procure such posting,
to the address of that ordinary shareholder or beneficial shareholder appearing
in the register and/or relevant sub-register (as the case may be) or as so
identified to the Transfer Secretaries by Strate.
6. The identification of each such ordinary shareholder and person beneficially
entitled to the Applicant`s ordinary shares and their respective addresses
referred to in paragraph 5 shall take place at 17:00 on the day which is the
fifth business day before the date of posting.
7. A copy of the documents referred to in paragraph 5 above shall lie for
inspection at the registered office of the Applicant at First Floor, 45 Empire
Road, Parktown, Johannesburg during normal business hours for at least 14
(fourteen) calendar days prior to the date of the scheme meeting.
8. The Chairperson shall report the results of the scheme meeting to the Court
by affidavit on Tuesday, 3 February 2009 at 10:00 or so soon thereafter as
Counsel may be heard or at such later time and date as may be necessitated by
any adjournment of the scheme meeting.
9. The report required by the Court from the Chairperson shall give details of:
9.1 the number of the scheme members present in person (including those
represented) at the scheme meeting and any adjournment thereof and the number of
ordinary shares held by them;
9.2 the number of the scheme members represented by proxy at the scheme meeting
and any adjournment thereof and the number of ordinary shares held by them,
together with information as to the number represented by the Chairperson in
terms of proxies;
9.3 the number of ordinary shares held by all scheme members;
9.4 any proxies which have been disallowed;
9.5 all rulings made and directions given by the Chairperson at the scheme
meeting and any adjournment thereof;
9.6 the relevant portions of documents and reports submitted or tabled at the
scheme meeting and any adjournment thereof which bear on the merits or demerits
of the scheme, including copies thereof;
9.7 the main points of any other proposals which were submitted to the scheme
meeting and any adjournment thereof; and
9.8 the number of votes cast in favour of and against the scheme and any
abstentions, indicating how many votes were cast by the Chairperson in terms of
proxies.
10. The Applicant shall arrange to make available at the place mentioned in
paragraph 7 (and the notice of the scheme meeting which is published and/or sent
to the addressees referred to in paragraph 5 above shall include a statement
that it will be so available) a copy of the Chairperson`s report to the Court,
free of charge, to any scheme member on request during normal business hours,
for at least 7 (seven) calendar days before the date, or any extension of such
date, fixed by the Court in paragraph 8 above for the Chairperson to report back
to it.
11. Each scheme member who holds certificated ordinary shares in the Applicant
or dematerialised ordinary shares in the Applicant through a CSDP or broker with
"own-name" registration and who wishes to vote by proxy at the scheme meeting,
should complete and sign the form of proxy forming part of the scheme documents
in accordance with the instructions contained therein and post such form of
proxy to, or lodge it with, the Transfer Secretaries, Computershare Investor
Services 2004 (Proprietary) Limited, Ground Floor, 70 Marshall Street,
Johannesburg, 2001 (PO Box 61051, Marshalltown, 2107), so as to be received by
no later than 09:00 on Monday, 19 January 2009. Alternatively, the form of
proxy may be handed to the Chairperson of the scheme meeting by no later than 10
(ten) minutes before the time for which the scheme meeting or any adjournment
thereof has been convened.
12. Each scheme member who holds dematerialised shares in the Applicant through
a CSDP or broker and who does not have "own-name" registration ("dematerialised
scheme member") must give his/her voting instructions to his/her CSDP or broker
by the time and in the manner prescribed in the custody agreement concluded
between the relevant scheme member and his/her CSDP or broker. If a
dematerialised scheme member wishes to attend and vote at the scheme meeting in
person or be represented thereat by proxy he/she should timeously inform his/her
CSDP or broker of his/her intention to attend and vote in person at the scheme
meeting or be represented by proxy thereat in order for the CSDP or broker to
issue him/her with the necessary letter of representation to do so.
By Order of the Court
Registrar
DENEYS REITZ
Attorneys for Applicant
82 Maude Street
Sandton, 2196
Johannesburg
Tel: 011 685 8500
Docex 215, Johannesburg
Ref: M T Steyn/AFO 609
c/o Adams & Adams
Adams & Adams Place
1140 Prospect Street
Hatfield, 0028
Pretoria
Tel: 012 481 1500
Docex 81, Pretoria
Ref: A Visser
Date: 19/12/2008 09:31:20 Produced by the JSE SENS Department.
The SENS service is an information dissemination service administered by the
JSE Limited (`JSE`). The JSE does not, whether expressly, tacitly or
implicitly, represent, warrant or in any way guarantee the truth, accuracy or
completeness of the information published on SENS. The JSE, their officers,
employees and agents accept no liability for (or in respect of) any direct,
indirect, incidental or consequential loss or damage of any kind or nature,
howsoever arising, from the use of SENS or the use of, or reliance on,
information disseminated through SENS.
