| Thu 2 Dec 2004, 9:55 | | Gold Fields Limited - HARMONY LOSES EIGHT LEGAL AC |
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Gold Fields Limited - HARMONY LOSES EIGHT LEGAL ACTIONS RELATING TO IAMGOLD VOTE
ON 7 DECEMBER 2004 - ONE PENDING
MEDIA RELEASE
Gold Fields Limited
(Incorporated in the Republic of South Africa)
Registration number: 1968/004880/06
JSE code: GFI ISIN: ZAE000018123
(`Gold Fields`)
HARMONY LOSES EIGHT LEGAL ACTIONS RELATING TO IAMGOLD VOTE ON 7 DECEMBER 2004 -
ONE PENDING
Johannesburg, 1 December 2004: The dismissal today, with costs, of Harmony Gold
Mining Company`s application to the Constitutional Court of South Africa brings
to eight the number of legal actions lost by Harmony over the past week. All of
these relate to the vote by Gold Fields shareholders on the IAMGold transaction
on 7 December 2004.
1) The Competition Appeal Court (`CAC`) on Friday, 26 November, ruled that,
while Harmony may proceed to acquire the shares tendered to it in the Early
Settlement Offer, it may not exercise any rights associated with those shares
until such time as it has sought and obtained approval for its offers from the
competition authorities. This includes the voting of those shares at the Gold
Fields EGM on 7 December where shareholders will be required to vote on the
IAMGold transaction.
The CAC effectively found that the first stage of Harmony`s two-stage offer (the
Early Settlement Offer) is in fact a `notifiable merger`. A `notifiable merger`
may not be implemented pending approval of the competition authorities.
2) On Monday, 29 November, the Securities Regulation Panel (`SRP`) reinforced
the ruling of the CAC, referred to above, by finding that the Harmony offer is a
single transaction and accordingly an `affected transaction` and that the SRP
has jurisdiction over the Early Settlement Offer.
3) Harmony on Monday, 29 November, approached the Supreme Court Of Appeal
(`SCA`), requesting urgent enrolment of an appeal against the order of the CAC
handed down on Friday the 26th. The Judge President heard their request for
urgent enrolment in Chambers and, after hearing submissions from Gold Fields`
representatives, refused to enroll the appeal on an urgent basis.
Harmony further applied directly to the CAC with an urgent application for 4)
leave to appeal the CAC order of the 26th and 5) an order suspending operation
of the interdict, pending finalization of its appeal. As the SCA had refused to
enroll the intended appeal on the urgent basis sought, the CAC similarly refused
to enroll the application for an urgent hearing.
6) In addition Harmony has brought an urgent application in the Constitutional
Court for an order that the CAC order of the 26th is appealable to the SCA. This
application was today dismissed with costs.
Harmony on Tuesday lodged an application in the United States District Court in
the Southern District of New York against the Bank of New York (`BoNY`). In that
application Harmony sought 7) a temporary restraining order and 8) a preliminary
injunction to prevent the BoNY from issuing Gold Fields with a discretionary
proxy, covering American Depository Shares for which no voting instructions had
been received by BoNY, to be voted at the Gold Fields EGM on 7 December. The
Court denied both forms of relief sought by Harmony.
9) In a related but separate action, brought in the High Court of South Africa,
Harmony seeks to interdict Gold Fields from voting the above ADS` at the Gold
Fields EGM on 7 December. This application is expected to be heard later in the
week.
In a further development, Harmony overnight issued a press release in which they
asserted that they can vote the shares that they acquired in the Early
Settlement Offer by virtue of the fact that they have lodged an application for
leave to appeal to the CAC.
Gold Fields has been advised that this statement is incorrect. The order of the
CAC stands and is in full force and effect. In terms thereof Harmony is not
permitted to vote the shares acquired until its bid for Gold Fields has been
considered and approved by the competition authorities.
Ian Cockerill, Chief Executive of Gold Fields said:
`The legal principles have been clearly established. Harmony`s two-stage offer
structure did not escape regulation and should be treated as a single, composite
offer. Harmony`s attempt to stop the BoNY from providing Gold Fields with a
discretionary proxy has been denied by the US Courts`.
`Harmony should drop its desperate lawsuits, drop its hostile offer and face the
realities of the situation:
Gold Fields` shareholders have overwhelmingly rejected Harmony`s hostile low-
ball offer;
Gold Fields shareholders are set to approve the creation of Gold Fields
International;
Harmony continues to burn cash, has made losses for the last five consecutive
quarters and now faces labour unrest as a result of CONOPS`.
`Harmony should withdraw its hostile offer and end the value destruction which
it initiated with this ill-conceived bid for Gold Fields,` Cockerill added.
ends
For more information please visit http://www.goldfields.co.za
In the United States, Gold Fields Limited (`Gold Fields`) will file a
Solicitation/Recommendation Statement with the Securities and Exchange
Commission (the `SEC`) on Schedule 14D-9 and holders of the Gold Fields Ordinary
Shares and American Depositary Shares are advised to read it as it contains
important information. Copies of the Schedule 14D-9 and other related documents
filed by Gold Fields are available free of charge on the SEC`s website at
http://www.sec.gov. Any documents filed by Harmony Gold Mining Company Limited,
including any registration statement on Form F-4 (including any prospectus
contained therein) and related exchange offer materials as well as its Tender
Offer Statement on Schedule TO, will also be available free of charge on the
SEC`s website.
The directors of Gold Fields accept responsibility for the information contained
in this document. To the best of their knowledge and belief (having taken all
reasonable care to ensure that such is the case) the information contained in
this document is in accordance with the facts and does not omit anything likely
to affect the import of such information.
Copies of this document are not being made available, and must not be mailed,
forwarded, transmitted or otherwise distributed or sent in or into Australia,
Canada, Japan, the Republic of Ireland or any other jurisdiction in which it is
illegal to make this document available and persons receiving this document
(including custodians, nominees and trustees) must not distribute, forward,
mail, transmit or send it in or into or from Australia, Canada, Japan, the
Republic of Ireland or any such other jurisdiction.
Date: 02/12/2004 07:05:04 AM
Produced by the JSE SENS Department
