| Fri 15 Oct 2004, 8:44 | | ORDER OF COURT |
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ALLIANCE PHARMACEUTICALS LIMITED - ORDER OF COURT
ALLIANCE PHARMACEUTICALS LIMITED
Share code: ALN
ISIN : ZAE000011110
ORDER OF COURT
IN THE HIGH COURT OF SOUTH AFRICA
(WITWATERSRAND LOCAL DIVISION) Case number: 04/22343
Before the Honourable Justice Van Oosten
on Tuesday, 12 October 2004
In the ex parte application of:
ALLIANCE PHARMACEUTICALS LIMITED Applicant
(Incorporated in the Republic of South Africa)
(Registration number 1981/006145/06)
Having read the documents filed and having considered the matter:
IT IS ORDERED THAT:
1. a meeting (`the scheme meeting`) in terms of section 311(1) of the
Companies Act, (Act 61 of 1973), as amended (`the Companies Act`), of the N
ordinary shareholders of the Applicant (apart from Thebe Health Care (Pty)
Ltd (`Thebe`), Unicorde Solutions (Pty) Ltd (`Unicorde`) and Forim Holdings
Limited (`Forim`)) recorded in the register as such at 17:00 on Thursday, 4
November 2004 (`the scheme members`) be convened by the chairperson
referred to in paragraph 2 of this Order of Court (`this Order`) to be held
in the boardroom of the Applicant, 4th Floor, 17 Faraday Street, Village
Main, Johannesburg on Monday, 8 November 2004 at 10:40, for the purpose of
considering and, if deemed fit, agreeing, with or without modification, to
the scheme of arrangement (`the scheme`) proposed by Thebe between the
Applicant and the scheme members, substantially in the form contained in
annex `A2` to the founding affidavit in this matter;
2. Mr Christopher Haig Ewing (or failing him an independent attorney appointed
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;
3.3 determine the validity and acceptability of any form of proxy
submitted for use at the scheme meeting and/or any adjournment
thereof;
3.4 adjourn the scheme meeting from time to time if the chairperson
considers it necessary to do so;
3.5 determine the procedure to be followed at the scheme meeting and any
adjournment thereof;
4. the Applicant shall cause a notice convening the scheme meeting
(substantially in the form contained in the papers before this Court at
pages 10 and 11 of Annex `A2` to the founding affidavit) to be published
once in each of Business Day, Die Burger, Beeld and the Government Gazette
at least 14 (fourteen) days before the date of the scheme meeting. The
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 agree, with or without modification,
to 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
offices of the Applicant at 4th Floor, 17 Faraday Street, Village
Main, Johannesburg and at the offices of the chairperson c/o Cliffe
Dekker Incorporated, 4th Floor, 1 Protea Place, Sandown, Sandton; 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 places mentioned in paragraph 4.4 of this Order;
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 this Honourable
Court;
5.2 the notice convening the scheme meeting substantially in the form of
the notice attached to the papers before this Honourable Court showing
the time, date and place of the scheme meeting;
5.3 the form of proxy to be used at the scheme meeting (substantially in
the form of the form of proxy attached to the papers before this
Honourable Court at pages 79 and 80 of Annex `A2` to the founding
affidavit); and
5.4 this Order of Court, shall be sent by registered post by the Applicant
at least 14 (fourteen) calendar days before the date of the scheme
meeting to each of the N-ordinary shareholders of the Applicant at
their addresses as reflected in the Applicant`s register of members at
the close of business on a date not more than 4 (four) business days
before the date of such posting and in respect of holders of
dematerialised shares, at the addresses as notified by STRATE to the
Applicant`s transfer secretaries on a date not more than 4 (four)
business days before the date of such posting;
6. copies of:
6.1 the scheme and the explanatory statement in terms of section 312(1) of
the Companies Act substantially in the form of the scheme and the
explanatory statement attached to the papers before this Court;
6.2 the notice convening the scheme meeting substantially in the form of
the notice attached to the papers before this Court;
6.3 a form of proxy substantially in the form of the form of proxy
attached to the papers before this Court; and
6.4 this Order of Court, shall lie for inspection at, and copies of these
documents may be obtained free of charge from the registered office of
the Applicant and from the office of the chairperson during normal
business hours at the places mentioned in paragraph 4.4 for at least
14 (fourteen) calendar days prior to the date of the scheme meeting;
7. the date of posting of the documents referred to in paragraph 5 shall be
evidenced by an affidavit deposed by a representative of the Applicant duly
supported by post office receipts;
8. the chairperson shall report by way of affidavit the results of the scheme
meeting to this Court on 16 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 scheme members present in person at the scheme meeting
(including those represented) and the number of shares held by them;
9.2 the number of scheme members represented by proxy at the scheme
meeting and the number of shares held by them together with
information as to the numbers 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 in each case 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;
9.6 the relevant portions of documents and reports submitted or tabled at
the scheme meeting which have a bearing 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 4.4 (and the notice of the scheme meeting which is published and
sent to 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 fixed by this Court for the chairperson to report back to it;
11. any scheme member wishing to vote by proxy should tender as his proxy the
form of proxy referred to in paragraph 5.3 of this Order. The form of proxy
must be completed and returned in accordance with the instructions therein
to the Applicant`s transfer secretaries, namely, Computershare Investor
Services 2004 (Pty) Ltd, Ground Floor, 70 Marshall Street, Johannesburg,
2001 (PO Box 61051, Marshalltown, 2107) to be received by not later than
10:40 on Friday, 5 November 2004. Forms of proxy may also be handed to the
chairperson no later than 10 minutes before the commencement of the scheme
meeting;
12. scheme members who hold certificated N-ordinary shares in the Applicant or
dematerialised N-ordinary shares in the Applicant through a Central
Securities Depository Participant (`CSDP`) or broker and have `own name`
registration and wish to vote by proxy, should tender as their proxy, the
form of proxy referred to in paragraph 5.3 of this Order; and
13. scheme members who hold N-ordinary shares in the Applicant which have been
dematerialised and are held on the sub-register other than on an own name
registration basis who wish to attend the scheme meeting or to vote by way
of proxy, must contact their CSDP or institutional depository or broker who
will furnish them with the necessary authority to attend the scheme meeting
or to be represented thereat by proxy. This must be done in terms of the
agreement between the member and his/her CSDP, institutional depository or
broker.
By Order of the Court
Court Registrar
Attorneys to the Applicant
Sonnenberg Hoffmann Galombik
5th Floor, ABN Amro House
85 Maude Street
Sandown
Johannesburg, 2196
(PO Box 783 018, Sandton, 2146)
Tel: (011) 669-8000
Fax: (011) 669-8111
Ref: Ms L van der Berg
