| Tue 30 Nov 2004, 13:18 | | Harmony launches proceedings |
|
Harmony - Due to substantial opposition to the proposed IAMGold transaction,
Harmony launches proceedings to prevent Gold Fields` management from
obtaining a discretionary proxy from the Bank of New York
Harmony Gold Mining Company Limited
(Incorporated in the Republic of South Africa)
(Registration number 1950/038232/06)
Share code: HAR ISIN: ZAE000015228
(`Harmony`)
30 November 2004
Due to substantial opposition to the proposed IAMGold transaction, Harmony
launches proceedings to prevent Gold Fields` management from obtaining a
discretionary proxy from the Bank of New York
Introduction
Following Harmony`s request to Gold Fields` management that it declines to vote
a discretionary proxy to help it force through the proposed IAMGold transaction
and Gold Fields` management`s refusal to provide that assurance, Harmony, in the
interests of itself and its fellow Gold Fields shareholders opposed to the
proposed IAMGold transaction, has regretfully been forced to commence
proceedings against Gold Fields and the Bank of New York (`BONY`).
The discretionary proxy
The deposit agreement between Gold Fields and BONY, the United States depositary
of Gold Fields` American Depositary Shares (`ADSs`), provides that Gold Fields`
management be entitled to vote, in its sole discretion, those ADSs that are
voted neither in favour of nor against a proposed resolution (the `discretionary
proxy`).
A further term of the deposit agreement is that, should substantial opposition
exist to the matters in respect of which the discretionary proxy is to be
granted, or should such matter materially and adversely affect the rights of
holders of Gold Fields shares, Gold Fields` management should inform BONY of
this and, consequently, the discretionary proxy should not be granted. This
term is specifically designed to prevent Gold Fields` management forcing through
resolutions that are against the wishes of a substantial number of Gold Fields`
shareholders and/or which materially adversely affect their rights.
On 25 November 2004, Harmony notified the management and directors of Gold
Fields that, in Harmony`s view, substantial opposition exists to the proposed
IAMGold transaction and that the implementation of such transaction would
materially adversely affect the rights of holders of Gold Fields shares.
Harmony requested that Gold Fields` management notify BONY of such substantial
opposition and material adverse affect, with the effect that Gold Fields`
management would not be granted the discretionary proxy.
Following Gold Fields` management`s failure to do so, Harmony has regretfully
been forced to commence proceedings in the Witwatersrand Local Division of the
High Court of South Africa, requiring Gold Fields` management to notify BONY of
this substantial opposition and material adverse affect. Simultaneously,
Harmony has also had to file an injunction in the United States seeking to
prevent BONY from issuing the discretionary proxy.
Substantial opposition
On 29 November 2004, Harmony announced that valid acceptances of the early
settlement offer had been received in respect of a total of 53 392 108 Gold
Fields shares representing approximately 10.8% of the entire issued share
capital of Gold Fields. Harmony has formally notified Gold Fields of its
opposition to the proposed IAMGold transaction.
As previously announced, Harmony has received an irrevocable undertaking from
Norilsk to vote against the proposed IAMGold transaction in respect of
98,467,758 Gold Fields shares, representing approximately 20.03% of the entire
issued share capital of Gold Fields.*
Furthermore, during meetings that Harmony has held with Gold Fields`
shareholders a significant number have indicated that they oppose the proposed
IAMGold transaction. This fact has been confirmed by both Gold Fields` and
IAMGold`s management`s own statements in recent days.
`At the time of the IAMGold transaction, you know this is what I find somewhat
surprising, you know we struggled to find anybody who didn`t like the
transaction, now all of a sudden people are saying - No, it`s a lousy deal.` -
Ian Cockerill, CEO of Gold Fields, 3 November 2004.
`It looks like Gold Fields might be getting cold feet after hearing from their
shareholders that they don`t like the deal` (Bloomberg quoting Wayne McCurri who
oversees the management of some $1,9 billion assets, including Gold Fields and
Harmony shares).
On 27 November 2004, when Joe Conway, the Chief Executive of IAMGold, is
reported to have acknowledged that `there still is significant opposition to the
proposal . the issue remains that Gold Fields shareholders are still somewhat
divided at this point`.
Accordingly, Harmony believes that there is substantial opposition to the
proposed IAMGold transaction. The level of opposition is even more significant
in the context of the historic level of attendance at such general meetings
(approximately 70% at the recent annual general meeting).
In Harmony`s view, should Gold Fields` management be granted the discretionary
proxy in respect of the proposed IAMGold transaction, this could potentially
assist Gold Fields` management in forcing through the resolutions relating to
IAMGold against the wishes of a substantial number of Gold Fields` shareholders.
Harmony firmly believes that it is Gold Fields` shareholders, rather than Gold
Fields` management, who should decide on the merits of the proposed IAMGold
transaction.
Material adverse affect
Harmony is of the view that the implementation of the proposed IAMGold
transaction will materially and adversely affect the rights of holders of Gold
Fields shares.
Harmony`s subsequent offer is conditional upon, inter alia, the proposed IAMGold
transaction not being implemented. Holders of Gold Fields shares who wish to
accept Harmony`s subsequent offer may be denied that opportunity if the proposed
IAMGold transaction is approved.
The proposed IAMGold transaction
Harmony considers that Gold Fields` rationale for the proposed IAMGold
transaction is unconvincing and difficult to justify from both a value and
structural perspective. In addition, Harmony believes that the proposed IAMGold
transaction has significant negative implications for Gold Fields, its
shareholders, its South African asset portfolio and all of its stakeholders. In
summary, under the terms of the proposed IAMGold transaction, Harmony believes
that Gold Fields shareholders will not receive full value for their
international asset portfolio, will lose control of their future growth and
could face future dividend reductions.
Issued by (direct line, mobile, email):
Harmony Gold
Ferdi Dippenaar +27 11 684 0140 +27 82 807 3684
Corne Bobbert +27 11 684 0146 +27 83 380 6614
South Africa - Beachhead Media & Investor Relations
Jennifer Cohen +27 11 214 2401 +27 82 468 6469 jennifer@bmsa.co.za
Patrick Lawlor +27 11 214 2410 +27 82 459 6709 patrick@bmsa.co.za
United States - Financial Dynamics Business Communications
Hollis Rafkin-Sax +1 212 850 5789 +1 917 509 0255 hrafkin-sax@fd-
us.com
Torie Pennington +1 212 850 5629 +1 917 838 1369 tpennington@fd-
us.com
United Kingdom - Financial Dynamics Business Communications
Nic Bennett +44 207 269 7115 +44 7979 536 619 nic.bennett@fd.com
Charles Watenphul +44 207 269 7216 +44 7866 438 013
charles.watenphul@fd.com
US Information Agent - MacKenzie Partners, Inc
Daniel Burch +212 929 5500 proxy@mackenziepartners.com
Steve Balet +800 322 2885
Unless the context otherwise requires, the definitions contained in the offer
document or the registration statement sent to Gold Fields shareholders have the
same meaning in this announcement.
* As previously disclosed, the irrevocable undertaking from Norilsk to vote
against the proposed IAMGold transaction and to accept the subsequent offer is a
legally binding contractual agreement. This agreement would cease to be binding
on Norilsk in the event that a competing offeror were to make an offer for the
entire issued share capital of Gold Fields at a price that represented a 15%
premium to the value of Harmony`s offers. Under the terms of the agreement,
Harmony retains the right to match any such competing offer with the effect that
the agreement would remain binding on Norilsk.
In connection with the proposed merger, Harmony will file with the U.S.
Securities and Exchange Commission (`SEC`), a registration statement on Form F-
4, which will include a preliminary prospectus and related exchange offer
materials, to register the Harmony ordinary shares (including Harmony ordinary
shares represented by Harmony ADSs) to be issued in exchange for the remainder
of Gold Fields ordinary shares held by Gold Fields shareholders located in the
United States and for Gold Fields ADSs held by Gold Fields shareholders wherever
located, as well as a Statement on Schedule TO. Investors and holders of Gold
Fields securities are strongly advised to read the registration statement and
the preliminary prospectus, the related exchange offer materials and the final
prospectus (when available), the Statement on Schedule TO and any other relevant
documents filed with the SEC, as well as any amendments and supplements to those
documents, because they will contain important information. Investors and
holders of Gold Fields securities may obtain free copies of the registration
statement, the preliminary and final prospectus and related exchange offer
materials and the Statement on Schedule TO, as well as other relevant documents
filed or to be filed with the SEC, at the SEC`s web site at www.sec.gov.
Investors and holders of Gold Fields securities will receive information at an
appropriate time on how to obtain transaction-related documents for free from
Harmony or its duly designated agent. The preliminary prospectus and other
transaction-related documents may be obtained for free from MacKenzie Partners,
Inc., the information agent for the U.S. offer, at the following address: 105
Madison Avenue, New York, New York 10016; telephone 1 212 929 5500 (call
collect) or 1 800 322 2885 (toll-free call); e-mail proxy@mackenziepartners.com.
This communication is for information purposes only. It shall not constitute an
offer to purchase or exchange or the solicitation of an offer to sell or
exchange any securities of Gold Fields or an offer to sell or exchange or the
solicitation of an offer to buy or exchange any securities of Harmony in the US,
nor shall there be any sale or exchange of securities in any jurisdiction in
which such offer, solicitation or sale or exchange would be unlawful prior to
the registration or qualification under the laws of such jurisdiction. The
distribution of this communication may, in some countries, be restricted by law
or regulation. Accordingly, persons who come into possession of this document
should inform themselves of and observe these restrictions. The solicitation of
offers to buy Gold Fields ordinary shares (including Gold Fields ordinary shares
represented by Gold Fields ADSs) in the US will only be made pursuant to a
prospectus and related offer materials that Harmony will send to holders of Gold
Fields securities. The Harmony ordinary shares (including Harmony ordinary
shares represented by Harmony ADSs) may not be sold, nor may offers to buy be
accepted, in the US prior to the time the registration statement becomes
effective. No offering of securities shall be made in the US except by means of
a prospectus meeting the requirements of Section 10 of the United States
Securities Act of 1933, as amended.
Forward-looking Statements
Statements in this announcement include `forward-looking statements` that
express or imply expectations of future events or results. Forward-looking
statements are statements that are not historical facts. These statements
include financial projections and estimates and their underlying assumptions,
statements regarding plans, objectives and expectations with respect to future
operations, products and services, and statements regarding future performance.
Forward-looking statements are generally identified by the words `expect,`
`anticipates,` `believes,` `intends,` `estimates` and similar expressions. All
forward-looking statements involve a number of risks, uncertainties and other
factors, and Harmony cannot give assurances that such statements will prove to
be correct. Risks, uncertainties and other factors that could cause actual
events or results to differ from those expressed or implied by the forward-
looking statements include, without limitation, the satisfaction of closing
conditions, the acceptance or rejection of any agreement by regulators, delays
in the regulatory processes, changes in the economic or political situation in
South Africa, the European Union, the US and/or any other relevant jurisdiction,
changes in the gold industry within any such country or area or worldwide and
the performance of (and cost savings realised by) Harmony. Although Harmony`s
management believes that the expectations reflected in such forward-looking
statements are reasonable, investors and holders of Gold Fields securities are
cautioned that forward-looking information and statements are subject to various
risks and uncertainties, many of which are difficult to predict and generally
beyond the control of Harmony, that could cause actual results and developments
to differ materially from those expressed in, or implied or projected by, the
forward-looking information and statements. These risks and uncertainties
include those discussed or identified in the public filings with the SEC made by
Harmony and Gold Fields, including those listed under `Cautionary Statement
Concerning Forward-Looking Statements` and `Risk Factors` in the preliminary
prospectus included in the registration statement on Form F-4 that Harmony will
file with the SEC. Harmony does not undertake any obligation to update any
forward-looking information or statements. You may obtain a free copy of the
registration statement and preliminary and final prospectus (when available) and
other public documents filed with the SEC in the manner described above.
The directors of Harmony accept responsibility for the information contained in
this announcement. To the best of the knowledge and belief of the directors of
Harmony (who have taken all reasonable care to ensure that such is the case),
the information contained in this announcement is in accordance with the facts
and does not omit anything likely to affect the import of such information.
