| Thu 8 Dec 2005, 7:24 | | Messina Limited - Order of court |
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Messina Limited - Order of court
Messina Limited
Code: MES
Isin: ZAE000004438
ORDER OF COURT
IN THE HIGH COURT OF SOUTH AFRICA
(WITWATERSRAND LOCAL DIVISION) Case number: 05/28621
Before the Honourable Justice Makhanya
Johannesburg, 6 December 2005
In the ex parte application of:
MESSINA LIMITED Applicant
(Incorporated in the Republic of South Africa)
(Registration number 1950/035912/06)
Upon the motion of legal counsel for 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 all members of
Applicant, registered as such at the close of business on Thursday,
12 January 2006 ("scheme members") be convened by the Chairperson ("the
Chairperson") referred to in paragraph 2 of this order on Monday, 16 January
2006 (or any adjourned date determined by the Chairperson) for the purpose of
considering and, if deemed fit, approving, with or without modification, the
scheme of arrangement ("scheme") proposed by Lonmin plc ("Lonmin") between
Applicant and all members of the Applicant, other than Lonmin and its
subsidiaries, registered as such at the close of business on Friday, 3
February 2006 ("scheme participants").
2. Mr Solomon Slom of Fluxmans Inc. or failing him Mr Arnold Subel SC, be and
is hereby appointed as the Chairperson of the scheme meeting with authority
to:
2.1 convene the scheme meeting;
2.2 determine whether or not any form of proxy submitted no later than 10
(ten) minutes before the scheduled commencement time of the scheme meeting for
use at the scheme meeting and any adjournment thereof is valid and should be
accepted;
2.3 adjourn the scheme meeting from time to time (with the need for
publication, timing and distribution thereof being at the discretion of the
Chairperson) should it be considered that such adjournment is necessary and
after having had due regard to the intention that the scheme becomes operative
on Monday, 6 February 2006;
2.4 determine the procedures (including the procedure in relation to proxies)
to be followed at the scheme meeting or any adjournment thereof; and
2.5 appoint scrutineers for purposes of the scheme meeting or any adjournment
thereof.
3. This Order and a notice convening the scheme meeting, substantially in the
form of the notice attached to the papers before this Honourable Court, shall
be published by the Chairperson at least 2 (two) weeks before the date of the
scheme meeting once in each of the:
3.1 Government Gazette;
3.2 Business Day; and
3.3 Beeld.
4. Each of the notices referred to in paragraph 3 of this Order shall state:
4.1 that the scheme meeting has been convened in terms of this Order;
4.2 the date, time and place of the scheme meeting;
4.3 that the scheme meeting has been convened for the purposes of considering
and, if deemed fit, approving of the scheme, with or without modification;
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:
4.4.1 inspected at the registered office of Applicant at Northdowns, 17
Georgian Crescent, Bryanston during normal business hours for at least 2 (two)
weeks prior to the scheme meeting; and
4.4.2 obtained on request by any member of Applicant, free of charge, from
Applicant during the period and at the times and place referred to in
paragraph 4.4.1.
5. Copies of:
5.1 the scheme substantially in the form attached to the papers before this
Honourable Court;
5.2 the form of proxy (pink) substantially in the form attached to the papers
before this Honourable Court;
5.3 the notice convening the scheme meeting substantially in the form attached
to the papers before this Honourable Court;
5.4 the explanatory statement in terms of section 312(1) of the Companies Act
substantially in the form attached to the papers before this Honourable Court;
and
5.5 this Order,shall be posted by pre-paid post by Applicant at least 14
(fourteen) days prior to the date of the scheme meeting to: (a) each member of
Applicant at his/her/its address as recorded in the register of members of
Applicant at the close of business not more than 4 (four) days before the date
of such posting; and (b) those persons named by the Central Securities
Depository Participants ("CSDP"s") or broker, administering sub-registers of
Applicant, as being beneficial holders of shares in Applicant as reflected in
the records of the CSDP"s or broker.
6. The date of posting of the documents referred to in paragraph 5 above shall
be evidenced by an affidavit deposed to by a representative of Applicant or
such other person who effected the posting duly supported by post office
receipts.
7. The Chairperson shall report the results of the scheme meeting to this
Honourable Court on or about Tuesday, 24 January 2006 at 10:00 or so soon
thereafter as Counsel may be heard.
8. In the report required by this Honourable Court from the Chairperson
details shall be given of:
8.1 the number and percentage of shareholders in Applicant determined in
accordance with paragraph 5 above:
8.1.1 present in person (including those represented) at the scheme meeting
and the number of shares held by them;
8.1.2 represented by proxy at the scheme meeting and the number of shares held
by them together with information as to the number of shares represented by
the Chairperson in terms of proxies;
8.2 the number and percentage of shares held by all the scheme members;
8.3 any proxies which have been disallowed;
8.4 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;
8.5 all rulings (if any) made and directions given by the Chairperson at the
scheme meeting;
8.6 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
8.7 the main points of any other proposal which was submitted to the scheme
meeting and what transpired in respect thereof.
9. The report required by this Honourable Court from the Chairperson shall
comply also with the requirements of section FE of the Practice Manual of this
Honourable Court.
10. The Applicant shall procure that there is made available (free of charge
and the notice of scheme meeting which is published and posted in terms of
paragraph 5 above shall include a statement that it is so available) at its
registered office stated in paragraph 4.4.1 above, a copy of the Chairperson"s
report to this Honourable Court to any member of Applicant on request during a
period of at least 7 (seven) calendar days prior to the date fixed by this
Honourable Court for the Chairperson to report back to it.
11. Any scheme member who holds certificated shares in Applicant and any
scheme member who holds dematerialised shares in Applicant through a CSDP or
broker and wishes to vote by proxy, shall tender as his/her/its proxy the form
of proxy referred to in paragraph 5.2 of this Order. The form of proxy must be
completed and returned in accordance with the instructions therein to
Computershare Investor Services 2004 (Proprietary) Limited, 70 Marshall
Street, Johannesburg, 2001 (PO Box 61051, Marshalltown, 2107) to be received
at that address by no later than 09:00 on Friday, 13 January 2006 or handed to
the Chairperson no later than 10 (ten) minutes prior to the commencement of
the scheme meeting.
12. Any scheme member who holds certificated shares in Applicant through a
nominee and scheme members who hold dematerialised shares in Applicant through
a CSDP or broker not in "own-name" registration and wishes to attend and vote
at the scheme meeting shall timeously inform his/her/its nominees or CSDP or
broker, as the case may be, of his/her/its intention to attend and vote at the
scheme meeting or be represented by proxy thereat in order for the nominee or
CSDP or broker to issue him/her/it the necessary authorisation to do so or
should he/she/it not wish to attend the scheme meeting in person, timeously
provide his/her/its nominees, CSDP or broker with his/her/its voting
instructions in order for the nominee, CSDP or broker to vote in accordance
with his/her/its instruction at the scheme meeting.
By Order of the Court
Registrar
Applicant"s Attorneys
Cliffe Dekker Inc.
c/o Document Exchange
North State Building
95 Market Street
Johannesburg, 2001
(Private Bag X7, Benmore, 2010)
Tel: +27 (0)11 290 7000
Fax: +27 (0)11 290 7300
Ref: R Butler
Date: 08/12/2005 07:24:48 AM Produced by the JSE SENS Department
