Harmony Loses Eight Legal Actions Relating to IAMGold Vote on 7 December 2004 - One Pending
December 01 2004 - 10:55AM
PR Newswire (US)
Harmony Loses Eight Legal Actions Relating to IAMGold Vote on 7
December 2004 - One Pending JOHANNESBURG, South Africa, December 1
/PRNewswire-FirstCall/ -- 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. 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. http://www.goldfields.co.za/ DATASOURCE: Gold Fields
Limited CONTACT: Enquires: South Africa, Willie Jacobsz, Tel
+27-11-644-2460, Fax +27-11-484-0639; North America, Cheryl A
Martin, Tel +1-303-796-8683, Fax +1-303-796-8293
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