Harmony clarifies its future intentions in advance of the vote on the proposed Release Date: 02/12/2004 15:15:00 Code(s): HAR
Harmony clarifies its future intentions in advance of the vote on the proposed
Harmony Gold Mining Company Limited
(Incorporated in the Republic of South Africa)
(Registration number 1950/038232/06)
Share code: HAR ISIN: ZAE000015228
2 December 2004
Harmony clarifies its future intentions in advance of the vote on the proposed
Harmony believes that it would be useful for its fellow Gold Fields 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 relating to the IAMGold vote
Harmony considers that there are two significant unresolved issues in relation
to the vote at the Gold Fields general meeting.
Firstly, 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.
Secondly, 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.
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.
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.
Ferdi +27 11 684 Corne Bobbert +27 11 684
Dippenaar 0140 Investor 0146
Marketing +27 82 807 Relations +27 83 380
Director 3684 6614
Adrian Coates +44 20 7991 Dennis Tucker +27 11 286
Jan Sanders 8888 George Nakos 7324
Graham Andrew Brady
BEACHHEAD FINANCIAL DYNAMICS
South Africa UK
Jennifer +27 11 214 Nic Bennett +44 20 7269
Cohen 2401 Charles 7115
Patrick +27 11 214 Watenphul +44 20 7269
Lawlor 2410 7216
MACKENZIE PARTNERS Hollis Rafkin- +1 212 850
Torie +1 212 850
Daniel Burch +1 212 929
Steve Balet 5500
+1 800 322
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 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 firstname.lastname@example.org.
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.
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.
Date: 02/12/2004 03:15:04 PM Supplied by www.sharenet.co.za
Produced by the JSE SENS Department