SECURITIES REGULATION PANEL - ANNOUNCEMENT
BEFORE THE SECURITIES REGULATION PANEL
In the matter concerning -
HARMONY GOLD MINING COMPANY LIMITED (`Harmony`)
NORILSK NICKEL (`Norilsk`)
and
GOLD FIELDS LIMITED (`GFL`)
RULINGS OF THE APPEAL TRIBUNAL OF THE SECURITIES REGULATION PANEL
Procedural matters
GFL`s request for rulings dated 20 October 2004 was incorrectly categorised as
an appeal proceeding by the executive committee and should have been dealt with
as a request for rulings in the first instance.
GFL`s request for rulings in the memorandum attached to ENF`s letter dated 27
October 2004 was incorrectly categorised by the executive committee as an appeal
proceeding which was out of time and should have been dealt with as a request
for rulings in the first instance.
In the exercise of its discretion, GFL`s request for rulings will be dealt with
by the appeal panel and will not be referred back for consideration to either
the executive director or the executive committee of the SRP.
The concert party and related issues
Norilsk is not a concert party with Harmony.
The early settlement offer is not an offer for 54.9% of the shares in GFL.
The composite transaction and related issues
In the context of considering whether there has been an `affected transaction`,
the following rulings are made:
`the transaction` is the offer by Harmony for the entire issued share capital of
GFL.
The transaction, upon its implementation, will have the effect of vesting
control of GFL in Harmony.
The transaction is to be implemented in two stages through the early settlement
offer and the subsequent offer.
The division of the implementation of the transaction into two stages does not
detract from the fact that there is a single composite transaction, namely,
Harmony`s offer for all of the issued share capital of GFL.
In addition and, in any event the early settlement offer and the subsequent
offer are part of a series of transactions or scheme which, upon its
implementation, will have the effect of vesting control of GFL in Harmony.
In the premises the panel has jurisdiction over the early settlement offer.
Consequential rulings
The ruling sought in paragraph 108.3 of GFL`s heads of argument dated 24
November 2004, namely, that the early settlement offer must be made subject to
the same terms and conditions contained in the subsequent offer with the result
that the early settlement offer must not be implemented until the conditions
attaching to the subsequent offer are fulfilled, is refused.
The early settlement offer is not a partial offer.
The appeal panel refuses to give the confirmation sought in paragraph 3.4 of
ENF`s memorandum attached to the letter dated 27 October 2004.
The further rulings in relation to timing sought in paragraph 2 of ENF`s
memorandum attached to the letter dated 27 October 2004, are refused.
Costs
Harmony and GFL are ordered to pay the costs of the appeal tribunal in equal
shares.
By order of the Appeal Tribunal of the Securities Regulation Panel
Issued at Johannesburg on Monday 28 November 2004
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