Harmony Gold Clarifies its Future Intentions in Advance of the Vote on the Proposed IAMGold Transaction
December 02 2004 - 8:39AM
PR Newswire (US)
Harmony Gold Clarifies its Future Intentions in Advance of the Vote
on the Proposed IAMGold Transaction JOHANNESBURG, South Africa,
Dec. 2 /PRNewswire-FirstCall/ -- Harmony Gold (NYSE:HMY)(JSE:HAR)
believes that it would be useful for its fellow Gold Fields
(NYSE:GFI)(JSE:GFI) shareholders to have clarity on its future
intentions ahead of the general meeting of Gold Fields to be held
on 7 December 2004 to vote on the proposed IAMGold transaction (the
"Gold Fields general meeting"). The resolutions in relation to the
proposed IAMGold transaction require approval by a simple majority
of Gold Fields shareholders present in person or by proxy in order
for the transaction to be implemented (the "IAMGold resolutions").
Key issues related to the IAMGold vote Harmony believes that there
are two significant unresolved issues in relation to the vote at
the Gold Fields general meeting. * First, Harmony has received
legal advice that, as it has applied for leave to appeal, the
operation and execution of the order of the Competition Appeal
Court has been suspended. Accordingly, Harmony is entitled to vote
all of the shares that it acquired under the early settlement offer
at the Gold Fields general meeting. Harmony fully intends to vote
its shares which now amount to approximately 11.8% of the entire
issued share capital of Gold Fields. To clarify the misleading
media release circulated by Gold Fields on 1 December 2004, Harmony
advises that it has not been refused leave to appeal by any court.
The courts approached by Harmony have taken the view that its
appeal of the order of the Competition Appeal Court is not urgent
because Harmony has alternative remedies. In particular, Harmony
may apply to the High Court to interdict the implementation of the
proposed IAMGold transaction until such time as its appeal has been
decided. * Second, Harmony believes that, despite the announcement
of an amendment to the terms of the proposed IAMGold transaction,
there remains substantial opposition to the proposed IAMGold
transaction. Such substantial opposition includes Harmony and
Norilsk, who, in aggregate, own approximately 31.8% of the entire
issued share capital of Gold Fields, as well as a significant
number of other Gold Fields shareholders who, despite the amendment
thereto, have indicated to Harmony that they continue to oppose the
proposed IAMGold transaction. Harmony is of the view that Gold
Fields is in breach of its agreement with the Bank of New York
("BONY") insofar as it has failed to inform BONY of this
substantial opposition. As a result, BONY could be obliged to give
Gold Fields' management a discretionary proxy to vote, in its sole
discretion, any ADSs that are not voted in respect of the IAMGold
resolutions (the "discretionary proxy"). Harmony firmly believes
that the discretionary proxy should not be used in an attempt by
Gold Fields' management to force through the IAMGold resolutions
against the wishes of voting Gold Fields shareholders, including
Harmony. Harmony's intentions dependant on the outcome of the
IAMGold vote In Harmony's view, there are two possible scenarios in
terms of the outcome of the vote on the IAMGold resolutions. 1. If
the IAMGold resolutions are approved, but would not have been
approved if (i) Harmony's vote had been accepted and/or (ii) the
discretionary proxy had not been voted, Harmony intends to apply
for an interdict to prevent the implementation of the proposed
IAMGold transaction. To the extent that the court finds in
Harmony's favour, Harmony would intend to ensure that either the
proposed IAMGold transaction is never implemented or, to the extent
that Gold Fields' management does implement the transaction, it is
later unwound. Consequently, Gold Fields shareholders should be
aware that, in the event that Gold Fields' management does succeed
in forcing through the proposed IAMGold transaction, it will be
attempting to implement a transaction that is both contrary to the
wishes of the majority of its shareholder base and that is, in
Harmony's view, ultimately unsustainable. 2. If the IAMGold
resolutions are not approved, whether or not Harmony's vote is
accepted or the discretionary proxy is voted, Harmony believes that
this will represent a resounding rejection by Gold Fields
shareholders of the cornerstone of Gold Fields' board and
management's strategy. In these circumstances, Harmony is of the
firm view that Gold Fields shareholders' best way forward would be
to accept Harmony's value enhancing proposal to create the world's
premier gold mining company, a truly compelling investment
proposition. Harmony encourages its fellow Gold Fields shareholders
to vote against the proposed IAMGold transaction. 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. 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 http://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 . 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.
DATASOURCE: Harmony Gold CONTACT: (direct line, mobile, email) -
Harmony Gold - Ferdi Dippenaar, +27-11-684-0140, or
+27-82-807-3684, or Corne Bobbert, +27-11-684-0146, or
+27-83-380-6614; or South Africa - Jennifer Cohen, +27-11-214-2401,
or +27-82-468-6469, , or Patrick Lawlor, +27-11-214-2410, or
+27-82-459-6709, , both of Beachhead Media & Investor
Relations; or United States - Hollis Rafkin-Sax, +1-212-850-5789,
or +1-917-509-0255, , or Torie Pennington, +1-212-850-5629, or
+1-917-838-1369, , both of Financial Dynamics Business
Communications; or United Kingdom - Nic Bennett, +44-207-269-7115,
or +44-7979-536-619, , or Charles Watenphul, +44-207-269-7216, or
+44-7866-438-013, , both of Financial Dynamics Business
Communications; or US Information Agent - Daniel Burch,
+1-212-929-5500, , or Steve Balet, 1-800-322-2885, both of
MacKenzie Partners, Inc
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