| Thu 14 Oct 2004, 14:36 | | ORDER OF COURT |
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ABI LIMITED - ORDER OF COURT
Amalgamated Beverage Industries Limited
(Incorporated in the Republic of South Africa)
(Registration Number 1970/006820/06)
Share code: ABI
ISIN number: ZAE000000048
(`ABI Limited` or `the company`)
ORDER OF COURT
IN THE HIGH COURT OF SOUTH AFRICA
(WITWATERSRAND LOCAL DIVISION) Case number: 2004/22062
Before the Honourable Justice F H D Van Oosten
on Tuesday, 12 October 2004
In the ex-parte application of:
AMALGAMATED BEVERAGE INDUSTRIES LIMITED Applicant
(Incorporated in the Republic of South Africa)
(Registration number 1970/006820/06)
Upon the motion of Counsel for the Applicant and having read the notice of
motion and the other documents filed on record:
IT IS ORDERED THAT:
1. A meeting (`scheme meeting`) in terms of section 311(1) of the Companies
Act, 1973 (Act 61 of 1973), as amended (`Companies Act`), of the members of
the Applicant, other than ABI Holding Company (Proprietary) Limited (`ABI
Holdco`), registered as such at 17:00 on Thursday, 4 November 2004 (`scheme
participants`) be convened by the chairperson referred to in paragraph 2 of
this Order of Court (`Order`), to be held in the Applicant`s premises at
ABI House, 14 Pongola Crescent, Eastgate Extension 17, Sandton, 2199 at
14:00 on Tuesday, 9 November 2004, for the purpose of considering and, if
deemed fit, agreeing to, with or without modification, the scheme of
arrangement attached to the application in respect of which this Order is
given (`the scheme`); provided that the scheme meeting shall not be
entitled to agree to any modification of the scheme which has the effect of
diminishing the rights to accrue in terms thereof to scheme participants.
2. Mr Philip Vallet or, failing him, Mr Solomon Slom of Fluxmans Inc. or,
failing both of them, any other independent person nominated for that
purpose by this Court, be and is hereby appointed as chairperson of the
scheme meeting (`the chairperson`).
3. The chairperson is authorised to:
3.1 convene the scheme meeting;
3.2 appoint scrutineers for the purpose of the scheme meeting and any
adjourned meeting;
3.3 determine:
3.3.1 the validity and acceptability of any form of proxy
submitted for use at the scheme meeting and any adjourned
meeting;
3.3.2 the procedure to be followed at the scheme meeting and any
adjournment thereof;
3.4 adjourn the scheme meeting from time to time if the chairman
considers it necessary to do so; and
3.5 accept the proxies handed to the chairman by no later than 10
(ten) minutes before the scheme meeting is due to commence.
4. The Applicant shall cause a notice convening the scheme meeting
(substantially in the form contained in the papers before the Court), to be
published once in each of the Government Gazette, Business Day, Die Beeld,
Sunday Times and Rapport in South Africa, at least 2 (two) weeks before the
date of the scheme meeting. The said notice shall state:
4.1 the basic characteristics of the scheme;
4.2 the time, date and venue of the scheme meeting;
4.3 that the scheme meeting has been convened in terms of this Order
to consider and, if deemed fit, to approve, with or without
modification, the scheme;
4.4 that a copy of this Order, the scheme and the explanatory
statement in terms of section 312(1) of the Companies Act may be
inspected during normal business hours at any time prior to the
scheme meeting at the registered office of the Applicant, being
ABI House, 14 Pongola Crescent, Eastgate Extension 17, Sandton,
2199; and
4.5 that a copy of this Order, the scheme and the explanatory
statement in terms of section 312(1) of the Companies Act may be
obtained free of charge on request during normal business hours
by any scheme member at the place mentioned in paragraph 4.4
above.
5. Copies of:
5.1 the scheme and the explanatory statement in terms of section
312(1) of the Companies Act substantially in the form of the
scheme and explanatory statement attached to the papers before
the Court;
5.2 the notice convening the scheme meeting substantially in the form
of the notice attached to the papers before the Court stating the
time, date and place of the scheme meeting;
5.3 the form of proxy (pink) to be used at the scheme meeting
substantially in the form of the form of proxy attached to the
papers before the Court; and
5.4 this Order, be sent by the Applicant by pre-paid registered post
at least 2 (two) weeks before the date of the scheme meeting to:
(i) each of the members of the Applicant at the addresses
reflected in the Applicant`s register of members, at the
close of business on a date not more than 5 (five) calendar
days before the date of such posting; and
(ii) those persons certified by the Central Securities Depository
Participants (`CSDP`) administering the sub-registers of the
Applicant as being shareholders of the Applicant registered
as such on such sub-registers and beneficial owners of the
shares so recorded as at the close of business on the twenty
eighth day of the month preceding the date of such posting
or as at the close of business on a date not more than 5
(five) calendar days before the date of such posting.
6. The date of posting of the documents referred to in paragraph 5 shall be
evidenced by an affidavit deposed to by a representative of the Applicant
duly supported by post office receipts.
7. A copy of the documents referred to in paragraph 5 above, shall lie for
inspection at the registered office of the Applicant at ABI House, 14
Pongola Crescent, Eastgate Extension 17, Sandton, 2199, during normal
business hours for at least 14 (fourteen) calendar days prior to the date
of the scheme meeting.
8. The chairperson shall report by way of affidavit the results of the scheme
meeting to this Court on Tuesday, 23 November 2004 at 10:00 or so soon
thereafter as Counsel may be heard.
9. The report required by this Court from the chairperson shall give details
of:
9.1 the number of the Applicant`s members present in person
(including those represented) at the scheme meeting and the
number of shares held by them;
9.2 the number of the Applicant`s members represented by proxies at
the scheme meeting and the number of shares held by them,
together with information as to the number represented by the
chairperson in terms of proxies annexed to the scheme document;
9.3 any proxies which have been disallowed;
9.4 all resolutions passed at the scheme meeting, with particulars of
the number of votes cast in favour of and against each such
resolution and of any abstentions, indicating how many votes were
cast by the chairperson in terms of proxies which were annexed to
the scheme document;
9.5 all rulings made and directions given by the chairperson at the
scheme meeting or any adjournment thereof;
9.6 the relevant portions of documents and reports submitted or
tabled at the scheme meeting which bear on the merits or demerits
of the scheme, including copies thereof; and
9.7 the main points of any other proposals which were submitted to
the scheme meeting.
10. The Applicant shall arrange to make available at the places mentioned
in paragraph 7 (and the notice of the scheme meeting which is
published and sent to the scheme members shall include a statement
that it will be so available) a copy of the chairperson`s report, to
this Court, free of charge, to any scheme member on request, for at
least 1 (one) week before the date, or any extension of such date,
fixed by this Court for the chairman to report back to it.
11. Any scheme member who holds certificated shares in the Applicant or
dematerialised shares in the Applicant through a CSDP or broker and
has `own-name` registration who wishes to vote by proxy at the scheme
meeting, shall by no later than 14:00 on Friday, 5 November 2004,
tender his form of proxy at the address stipulated therein, or hand
the form of proxy to the chairperson at least 10 (ten) minutes before
the scheduled time for the start of the scheme meeting.
12. Any scheme member who holds dematerialised shares in the Applicant
through a CSDP or broker and does not have `own-name` registration,
who wishes to attend and vote at the scheme meeting should timeously
inform his CSDP or broker of his intention to attend and vote at the
scheme meeting or be represented by a proxy thereat in order for the
CSDP or broker to issue him with the necessary authorisation to do so
or should he/she not wish to attend the scheme meeting in person,
timeously provide his CSDP or broker with his voting instructions in
order for the CSDP or broker to vote at the scheme meeting in
accordance with such instructions.
By Order of the Court
Registrar
Attorneys to the Applicant
Routledge Modise Moss Morris
2 Pybus Road
Sandton
2196
PO Box 78333
Sandton City
2146
Tel: (011) 286 6900
Fax: (011) 286 6901
Ref: Mr C Kantor
