England | | | 1040 | | | Not Applicable |
(State or other jurisdiction of incorporation or organization) | | | (Primary Standard Industrial Classification Code Number) | | | (I.R.S. Employer Identification Number) |
† | The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012. |
• | incorporated documents are considered part of this prospectus; |
• | NewCo can disclose important information to you by referring you to another document that AGA has filed separately with the SEC; |
• | information in this prospectus automatically updates and supersedes information in earlier documents that are incorporated by reference in this prospectus; |
• | information in a document incorporated by reference in this prospectus automatically updates and supersedes information in earlier documents that are incorporated by reference in this prospectus; and |
• | information that we file in the future with the SEC that we incorporate by reference in this prospectus will automatically update and supersede information in this prospectus. |
Q: | Why am I receiving this prospectus? |
A: | You are receiving this prospectus because, as of the relevant record date for distribution of this prospectus, you held AGA Ordinary Shares or AGA ADSs (each AGA ADS representing one AGA Ordinary Share). This prospectus describes the proposal to the AGA shareholders to approve the Reorganization. This prospectus also gives you information about NewCo and AGA and other background information to assist you in making an informed decision. |
Q: | What is the Reorganization? |
A: | AGA is proposing to its shareholders to establish a new holding company, NewCo, incorporated under the laws of England and Wales. AGA expects to implement this proposal in three sequential, separate and fully interconditional steps consisting of (i) the Spin-Off; (ii) the AGAH Sale; and (iii) the Scheme, pursuant to the terms of an agreement between AGA and NewCo dated as of [•], 2023 (the “Implementation Agreement”). |
Q: | What is the purpose of the Reorganization? |
A: | The purpose of the Reorganization is to enhance the Group’s strategic position. While the business carried out by the Group following the implementation of the Reorganization will remain the same, AGA intends to change its primary listing from the JSE to the NYSE in connection with the transaction. We believe that a primary listing on the NYSE will broaden the appeal of the Group to North American and international investors, which could generate incremental demand and share trading liquidity and improve valuation comparisons with North American industry peers. Additionally, NewCo’s incorporation in the United Kingdom will take the Group to a leading, low-risk jurisdiction where the Group already has a corporate presence. See “The Reorganization —Reasons for the Reorganization”. |
Q: | Will any other transactions be implemented in connection with the Reorganization? |
A: | Prior to the completion of the Reorganization, AGA will transfer 100 per cent. (100%) of the issued and outstanding stock in AngloGold Ashanti USA Incorporated (a wholly owned subsidiary of AGA) to AGAH, resulting in AngloGold Ashanti USA Incorporated becoming a wholly owned subsidiary of AGAH. |
• | AGA will be converted to a private company under South African law (the “Conversion”) and will make an election to be disregarded for U.S. federal income tax purposes (the “Election”, together with the Reorganization and the Conversion, the “U.S. Tax Reorganization”); and |
• | NewCo intends to undertake a capital reduction to create distributable reserves. See “Terms of the Reorganization and the Shareholders’ Meeting—The Capital Reduction.” |
Q: | What are the conditions to the Reorganization? |
A: | The completion of the Reorganization is subject to the fulfillment or, alternatively the waiver (to the extent permitted by applicable law and the Implementation Agreement) of the fulfillment, as the case may be, of certain conditions precedent (the “Reorganization Conditions”), including that: |
• | the AGAH Sale Special Resolution and the Scheme Special Resolution (each as defined herein) have been passed by the requisite majorities, as applicable, of AGA shareholders entitled to vote on the AGAH Sale and the Scheme, respectively, approving each of the AGAH Sale and the Scheme under the South African Companies Act, and (i) to the extent required by the South African Companies Act, the AGAH Sale and the implementation of the Scheme is approved by the High Court of South Africa and (ii) if applicable, AGA has not elected to treat the Scheme Special Resolution as a nullity under the South African Companies Act; |
• | AGA has received no valid demands as contemplated in section 164(5) to (8) of the South African Companies Act (whether in relation to the AGAH Sale or the Scheme) which in aggregate represent more than two per cent. (2%) of the voting rights attaching to the AGA Ordinary Shares. See “Terms of the Reorganization and the Shareholders’ Meeting—The Shareholders’ Meeting—Dissenters’, Appraisal, Cash Exit or Similar Rights”; |
• | the JSE has granted all approvals required for the AGAH Sale and Scheme (such approval being in such form as is customarily issued by the JSE in relation to similar transactions) and the secondary listing of the NewCo Ordinary Shares on the Main Board of the JSE and approval of all documentation required by the JSE to be submitted to it in connection with the AGAH Sale, Scheme and such listing; |
• | the Takeover Regulation Panel of South Africa (the “Takeover Regulation Panel”) has issued a compliance certificate with respect to the AGAH Sale and the Scheme and their implementation as contemplated in section 121(b)(i) of the South African Companies Act, to the extent that such compliance certificate is required; |
• | the SEC has made a declaration confirming the effectiveness of this registration statement on Form F-4 and no stop order suspending the effectiveness of such registration statement on Form F-4 is in effect and no proceedings for such purpose are pending before or threatened by the SEC; |
• | the NYSE has granted all approvals required for the listing of the NewCo Ordinary Shares on the NYSE, subject to notice of issuance; |
• | to the extent required, other regulatory approvals, consents or rulings necessary to implement the Reorganization have been obtained; and |
• | AGA has not, prior to 10:00 a.m. South African Standard Time on the Long Stop Date, exercised its right to cancel the Implementation Agreement as a result of the occurrence of a Material Adverse Effect. |
Q: | What will I receive in connection with the Reorganization? |
A: | As a result of the Reorganization, each AGA shareholder will own one NewCo Ordinary Share for each AGA Ordinary Share (including the AGA Ordinary Shares represented by AGA ADSs) held on the Reorganization Consideration Record Date. The NewCo Ordinary Shares to be issued in connection with the Reorganization are sometimes referred to in this prospectus as the “Reorganization Consideration”. See “Terms of the Reorganization and the Shareholders’ Meeting—Reorganization Consideration”, and “Terms of the Reorganization and the Shareholders’ Meeting—The Effect of the Reorganization on AGA Ordinary Shares, AGA ADSs and Ghanaian depositary shares”. |
Q: | When is the Reorganization expected to be completed? |
A: | The Reorganization is currently expected to be completed on or around [•], 2023, subject to the fulfillment of the Reorganization Conditions, several of which are not under our control. See “Terms of the Reorganization and the Shareholders’ Meeting—Reorganization Conditions” and “Risk Factors—Risks Related to the Reorganization and NewCo Ordinary Shares—Failure to timely implement the Reorganization could negatively affect the market price of AGA Ordinary Shares and AGA ADSs”. |
Q: | What potential negative consequences did AGA consider regarding the Reorganization? |
A: | The AGA Board considered potential negative consequences and risks that may arise from the Reorganization, including the following factors: (1) while the Group will incur significant nonrecurring transaction costs and expenses in connection with the implementation of the Reorganization and the NewCo Notes Distribution, the Reorganization is not expected to result in any significant cost savings or synergies for the Group, despite the other benefits identified under “The Reorganization—Reasons for the Reorganization”; and (2) the Group’s failure to timely implement the Reorganization could negatively affect the market price of AGA Ordinary Shares and AGA ADSs. However, the AGA Board in its deliberations considered that the expected benefits of the Reorganization outweigh the potential negative consequences and risks. See “Risk Factors—Risks Related to the Reorganization and NewCo Ordinary Shares”. |
Q: | Do any of AGA’s directors or executive officers have interests in the Reorganization that may be additional to those of other shareholders? |
A: | Yes. You should be aware that certain members of the AGA Board and management participated in determining the terms of the Reorganization. These individuals may have certain interests in the proposed Reorganization that are additional to the interests of AGA shareholders generally and that may have caused them to view the Reorganization more favorably or differently from the way other AGA shareholders would view it. |
Q: | Are there any risks related to the Reorganization that I should consider? |
A: | Yes. There are risks associated with all corporate reorganizations, including the implementation of the Reorganization. See “Risk Factors”. |
Q: | If the Reorganization is implemented, will my NewCo Ordinary Shares be listed for trading? |
A: | The NewCo Ordinary Shares will be listed on the NYSE on the Operative Date and entitlements thereto will start trading on the JSE two business days before the Operative Date. Additionally, NewCo expects to be listed on the A2X and the GhSE. It is a condition to the completion of the Reorganization that the NewCo Ordinary Shares be approved for listing on the NYSE, subject to notice of issuance, and be admitted to listing on the main board of the JSE. The listings on the NYSE, the JSE, the A2X and the GhSE are intended to maintain the Group’s and its shareholders’ access to AGA’s key historic trading markets, with the primary listing on the NYSE expected to facilitate enhanced access to the Group’s North American investor base. Following the implementation of the Reorganization, AGA will cease to be listed on the JSE, the A2X, the NYSE and the GhSE. Additionally, AGA expects to terminate its listing on the ASX regardless of whether the Reorganization is implemented. |
Q: | What happens if the Reorganization is not implemented? |
A: | If the requisite majority of AGA shareholders do not approve the AGAH Sale and the Scheme at the Shareholders’ Meeting, or if the Reorganization is not implemented for any other reason, the holders of AGA Ordinary Shares and AGA ADSs will continue to hold their AGA Ordinary Shares and AGA ADSs, respectively, and any exercise of appraisal rights by the holders of AGA Ordinary Shares will not be effective. In that case, AGA will continue to be the holding company of the Group and will remain a publicly traded company with AGA Ordinary Shares listed on the JSE and AGA ADSs listed on the NYSE, as well as a listing on the A2X and the GhSE. AGA expects to terminate its listing on the ASX regardless of whether the Reorganization is implemented. To the extent one or both of the AGAH Sale and the Scheme are not ultimately implemented after the Spin-Off and, if applicable, the AGAH Sale is implemented, the steps that have been completed will be unwound. See “The Implementation Agreement” and “The Irrevocable Offer to Purchase”. |
Q: | What are the material tax consequences of the Reorganization and the related transactions to AGA shareholders? |
A: | The tax consequences of the Reorganization and the related transactions for any particular AGA shareholder will depend on the shareholder’s particular facts and circumstances. Moreover, the description below and elsewhere in this prospectus does not relate to the tax laws of any jurisdiction other than the United States, the United Kingdom and the Republic of South Africa. Accordingly, AGA shareholders are urged to consult their tax advisors to determine the tax consequences of the Reorganization and the related transactions to them in light of their particular circumstances, including the effect of any state, local or national law. |
Q. | If the Reorganization is implemented, how will my rights as an AGA shareholder or AGA ADS Holder change? |
A. | The rights of holders of AGA Ordinary Shares are governed by South African law and by the AGA MOI. If the Reorganization is completed, holders of AGA Ordinary Shares and AGA ADSs will become beneficial owners of NewCo Ordinary Shares (subject to any adjustments to reflect the exercise of appraisal rights as described under “Terms of the Reorganization and the Shareholders’ Meeting—The Shareholders’ Meeting—Dissenters’, Appraisal, Cash Exit or Similar Rights”). The rights of holders of NewCo Ordinary Shares will be governed by the laws of England and Wales and NewCo’s articles of association (the “NewCo Articles”). If the Reorganization is completed, your future rights as a beneficial owner of NewCo Ordinary Shares under English company law will differ from your current rights as a shareholder under South African company law. See “Risk Factors—Risks Related to the Reorganization and NewCo Ordinary Shares—The NewCo Ordinary Shares to be received as a result of the Reorganization have different rights from the AGA Ordinary Shares”. |
Q: | When and where will the Shareholders’ Meeting be held? |
A: | The Shareholders’ Meeting of the AGA shareholders will be held on [•], 2023, beginning at [•] South African Standard Time at 112 Oxford Road, Houghton Estate, Johannesburg, 2198, South Africa, or such other postponed date and time or location as determined in accordance with the provisions of the AGA MOI, the South African Companies Act, and the JSE Listings Requirements. |
Q: | What matters will be voted on at the Shareholders’ Meeting? |
A: | At the Shareholders’ Meeting, AGA shareholders will be asked to consider and vote, among other things, on a special resolution (the “AGAH Sale Special Resolution”) to approve the AGAH Sale, pursuant to which NewCo will make an irrevocable offer to AGA to purchase 100 per cent. (100%) of the shares in AGAH, which it is the present, non-binding intention of AGA to accept, and on a special resolution (the “Scheme Special Resolution”) to approve the Scheme, pursuant to which NewCo will acquire all of the issued and outstanding AGA Ordinary Shares from AGA shareholders in consideration for the issuance of NewCo Ordinary Shares. See “Terms of the Reorganization and the Shareholders’ Meeting—The Shareholders’ Meeting”. |
Q: | When will the Shareholders’ Meeting of the AGA shareholders be considered regularly convened and the resolutions at such Shareholders’ Meeting validly adopted? |
A: | The Shareholders’ Meeting will be considered regularly convened when AGA shareholders representing at least 25 per cent. (25%) of all of the voting rights that are entitled to be exercised in respect of at least one matter to be decided at the meeting are in attendance, in person or by proxy. In addition, at least three AGA shareholders must be present, in person or by proxy. Once such a quorum has been established, the meeting may continue, so long as the shareholders that constituted the quorum continue to be present at the meeting, in person or by proxy. Abstentions and broker non-votes will be included in the calculation of the number of AGA Ordinary Shares represented at the Shareholders’ Meeting for purposes of determining whether such a quorum has been achieved. For a special resolution to be approved by AGA shareholders, it must be supported by at least 75 per cent. (75%) of the voting rights exercised on the resolution by the holders of AGA Ordinary Shares (including AGA Ordinary Shares represented by AGA ADSs) present or represented by proxy at the Shareholders’ Meeting and entitled to vote on the resolution. Votes to abstain and broker non-votes will not be counted as voting rights exercised for the purpose of calculating the aforementioned percentage (i.e., these votes are excluded from both the numerator and the denominator). |
Q: | Who is entitled to vote at the Shareholders’ Meeting? |
A: | The record date on which holders of AGA Ordinary Shares must be recorded in the securities register of AGA in order to vote at the Shareholders’ Meeting is [•], 2023 (the “Ordinary Share Voting Record Date”). The last day to trade AGA Ordinary Shares on the JSE in order to be recorded in the register on the Ordinary Share Voting Record Date is [•], 2023. Anyone becoming an AGA shareholder subsequent to the Ordinary Share Voting Record Date will not be entitled to attend or vote at the Shareholders’ Meeting either by person or by proxy. In addition, any such AGA shareholder will be bound by the results of the votes on the AGAH Sale Special Resolution and the Scheme Special Resolution at the Shareholders’ Meeting to the extent that they remain on the securities register of AGA as of the Reorganization Consideration Record Date and may not exercise appraisal rights. See “Terms of the Reorganization and the Shareholders’ Meeting—The Shareholders’ Meeting—Dissenters’, Appraisal, Cash Exit or Similar Rights”. |
Q: | As a holder of AGA Ordinary Shares, how do I vote? |
A: | Record holders of AGA Ordinary Shares (including certificated AGA Ordinary Shares) on the Ordinary Share Voting Record Date are entitled to attend, speak and vote (or abstain from voting) in person at the Shareholders’ Meeting or may appoint a proxy in writing, using the relevant proxy form. |
Q: | As a holder of AGA Ordinary Shares, what will be the consequences if I do not attend the Shareholders’ Meeting in person or by proxy? |
A: | In order to vote your AGA Ordinary Shares at the Shareholders’ Meeting, you must either attend the Shareholders’ Meeting and vote in person or confer your proxy (or, to the extent applicable, have your CSDP, bank, broker or custodian record your instructions and vote the AGA Ordinary Shares you hold in accordance with your instructions). If you do not attend the Shareholders’ Meeting in person or confer your proxy (or, to the extent applicable, have your CSDP, bank, broker or custodian record your instructions and vote the AGA Ordinary Shares you hold in accordance with your instructions), your AGA Ordinary Shares will not be counted to establish a quorum to open the Shareholders’ Meeting, voted in respect of the proposed resolutions, or taken into account in calculating whether the requisite majority required to approve the AGAH Sale and the Scheme has been achieved. See “Terms of the Reorganization and the Shareholders’ Meeting—The Shareholders’ Meeting”. |
Q: | As a holder of AGA ADSs, how do I vote? |
A: | As a holder of AGA ADSs on the ADS Voting Record Date, you are entitled to instruct the ADS Depositary on how to vote the AGA Ordinary Shares that your AGA ADSs represent. If you are a registered holder of AGA ADSs, you should receive a voting instruction card from the ADS Depositary, which you should mark, sign and return to the ADS Depositary, to be received prior to 5:00 p.m. Eastern Standard Time on [•], 2023. If you hold AGA ADSs in a securities account through a broker or other securities intermediary, you should receive voting materials from your intermediary, which you should use to give voting instructions to your intermediary, to be received prior to the cut-off date and time specified in those materials. See “Terms of the Reorganization and the Shareholders’ Meeting—The Shareholders’ Meeting”. |
Q: | As a holder of AGA ADSs, may I attend the Shareholders’ Meeting to vote? |
A: | No. AGA ADS holders are not entitled to attend the Shareholders’ Meeting in person. Instead, those AGA ADS holders that provide clear and timely instructions to the ADS Depositary as to how to vote the AGA Ordinary Shares underlying their AGA ADSs will be represented at the Shareholders’ Meeting by the ADS Depositary, which will endeavor to vote those shares as instructed by those holders. See “Terms of the Reorganization and the Shareholders’ Meeting—The Shareholders’ Meeting”. |
Q: | As a holder of AGA ADSs, what will be the consequences if I do not provide the ADS Depositary with voting instructions? |
A: | If you do not timely provide the ADS Depositary or relevant broker or securities intermediary with voting instructions, the AGA Ordinary Shares underlying your AGA ADSs will not be counted to establish a quorum to open the Shareholders’ Meeting, voted in respect of the proposed resolutions, or taken into account in calculating whether the requisite majority required to approve the AGAH Sale and the Scheme has been achieved. See “Terms of the Reorganization and the Shareholders’ Meeting—The Shareholders’ Meeting”. |
Q: | May I change my voting instructions after conferring a proxy or withdraw my proxy? May I provide voting instructions for only some of the resolutions to be voted at the Shareholders’ Meeting? |
A: | Yes. Holders of AGA Ordinary Shares may change their proxy voting instructions or withdraw their proxies at any time prior to voting taking place at the Shareholders’ Meeting. Please note that holders of AGA Ordinary Shares that change their proxy voting instructions or withdraw their proxies must deliver the written instrument changing their voting instructions or withdrawing their proxies to their proxies and AGA prior to commencement of voting at the Shareholder’s Meeting. Holders of AGA Ordinary Shares are also entitled to provide voting instructions for only some of the resolutions to be voted on at the Shareholders’ Meeting. |
Q: | As a holder of AGA Ordinary Shares, AGA ADSs or Ghanaian depositary shares, when will I receive the Reorganization Consideration, and what should I do to receive it? |
A: | In order to receive the Reorganization Consideration, holders of AGA Ordinary Shares must be recorded in the securities register of AGA at 5:00 p.m. South African Standard Time on the Reorganization Consideration Record Date, and holders of AGA ADSs and Ghanaian depositary shares must be recorded on the applicable depositary register at 5:00 p.m. on the Reorganization Consideration Record Date in the jurisdiction of the applicable depositary. |
• | Computershare Trust Company, N.A. (“CTCNA”) in its capacity as custodian for securities to be issued into Strate to various CSDPs (including the Computershare CSDP) in South Africa, |
• | the applicable brokers, custodians or nominees of holders of AGA ADSs holding through DTC and |
• | CTCNA in its capacity as the U.S. exchange agent (the “U.S. Exchange Agent”). |
How you currently hold your interest in AGA Ordinary Shares | | | How you will receive your NewCo Ordinary Shares (or local book-entry interests) |
Holders of AGA Ordinary Shares via a CSDP (in South Africa) | | | Strate will automatically deliver NewCo Ordinary Share book-entry interests to the same CSDP account as held the AGA Ordinary Shares |
Holders of AGA Ordinary Shares in registered certificated form (in South Africa) | | | Strate will deliver NewCo Ordinary Share book-entry interests to the valid CSDP account which was identified on the holder’s Form of Surrender and Transfer* |
Holders of AGA ADSs via a DTC participant account (in the United States) | | | DTC will automatically deliver NewCo Ordinary Share book-entry interests to the same DTC participant account as held the AGA ADSs |
Holders of AGA ADSs in registered uncertificated form (via the Direct Registration System) (in the United States) | | | DTC will deliver NewCo Ordinary Share book-entry interests to the DTC participant account of the U.S. Exchange Agent** |
Holders of AGA ADSs in registered certificated form (via AGA ADRs) (in the United States) | | | DTC will deliver NewCo Ordinary Share book-entry interests to the DTC participant account of the U.S. Exchange Agent** |
Holders of AGA depositary shares (in Ghana) | | | Strate will automatically deliver NewCo Ordinary Share book-entry interests to the same CSDP account of the Ghana depositary as held the AGA Ordinary Shares, and the Ghana depositary will automatically deliver NewCo Ghanaian depositary share book-entry interests to the same GhSE participant accounts as held the AGA GhDSs |
* | If you fail to deliver a Form of Surrender and Transfer, or, in the Form of Surrender and Transfer, you fail to provide any account details, or provide incorrect account details, of your CSDP, into which your NewCo Ordinary Shares are to be transferred, your NewCo Ordinary Shares will be delivered, on your behalf, to the Computershare CSDP. Following completion of the Reorganization, you will be sent instructions by the Computershare CSDP explaining the procedure for surrendering your share certificates and obtaining full access to your NewCo Ordinary Shares. |
** | If you are a registered uncertificated holder or a registered certificated holder of AGA ADSs, you will be sent instructions after completion of the Reorganization by the U.S. Exchange Agent explaining the procedure for (i) surrendering your AGA ADSs or AGA ADRs and (ii) obtaining full access to your NewCo Ordinary Shares. |
Q: | How should I surrender my AGA Ordinary Share certificates? |
A: | To surrender your AGA Ordinary Share certificates, you must complete and return the Form of Surrender and Transfer (a form of which will be attached as Exhibit 99.10 to the registration statement on Form F-4 of which this prospectus forms a part) prior to [•] South African Standard Time on [•], 2023, the Reorganization Consideration Record Date. In the Form of Surrender and Transfer, you must specify a valid CSDP account into which the Reorganization Consideration will be delivered. |
Q: | What if I am a registered certificated holder of AGA Ordinary Shares (in South Africa) and do nothing? |
A: | The Computershare CSDP will hold the NewCo Ordinary Shares that you are entitled to receive until (1) you duly surrender your share certificates to the Computershare CSDP and (2) you instruct the Computershare CSDP as to your preferred manner of delivery of your NewCo Ordinary Shares. See “Terms of the Reorganization and the Shareholders’ Meeting—The Effect of the Reorganization on AGA Ordinary Shares, AGA ADSs and Ghanaian depositary shares”. |
Q: | How should I surrender my AGA ADRs? |
A: | You will be sent instructions after completion of the Reorganization by the U.S. Exchange Agent explaining the procedure for surrendering your AGA ADRs and obtaining full access to your NewCo Ordinary Shares. Alternatively, you may dematerialize your AGA ADRs and obtain uncertificated AGA ADSs in the ordinary course in accordance with the terms of the AGA Deposit Agreement (as defined herein) prior to the Reorganization Consideration Record Date. |
Q: | What if I am a registered holder of AGA ADSs (in the United States), including AGA ADSs represented by AGA ADRs, and do nothing? |
A: | The U.S. Exchange Agent will hold the NewCo Ordinary Shares that you are entitled to receive until (1) where applicable, you duly surrender your AGA ADSs or AGA ADRs to the U.S. Exchange Agent and (2) you instruct the U.S. Exchange Agent as to your preferred manner of delivery of your NewCo Ordinary Shares. You will be sent instructions after completion of the Reorganization by the U.S. Exchange Agent explaining the procedures for the foregoing. See “Terms of the Reorganization and the Shareholders’ Meeting—The Effect of the Reorganization on AGA Ordinary Shares, AGA ADSs and Ghanaian depositary shares”. Following termination of the AGA ADS facility, holders of AGA ADSs will not be entitled to have the NewCo Ordinary Shares underlying AGA ADSs that have not been surrendered for cancelation sold on their behalf. |
Q: | If I hold AGA Ordinary Shares (in South Africa), will I have to pay brokerage commissions in connection with the exchange of my AGA Ordinary Shares? |
A: | You will not have to pay brokerage commissions as a result of the exchange of your AGA Ordinary Shares into NewCo Ordinary Shares in connection with the Reorganization if your AGA Ordinary Shares are registered in your name in the share register of AGA. If your AGA Ordinary Shares are held through a CSDP, bank, broker or a custodian linked to a stock exchange, you should consult with such CSDP, bank, broker or custodian as to whether or not such CSDP, bank, broker or custodian may charge any transaction fee or service charge in connection with the exchange of shares in connection with the Reorganization. See “Terms of the Reorganization and the Shareholders’ Meeting—Brokerage Commissions and Depositary Fees”. |
Q: | If I hold AGA ADSs (in the United States), will I have to pay fees to the ADS Depositary or other fees in connection with the exchange of my AGA ADSs? |
A: | You will not have to pay any fees to the ADS Depositary for the cancellation of AGA ADSs or the issuance of NewCo Ordinary Shares in connection with the Reorganization. However, if you hold AGA ADSs in a securities account through a broker or other securities intermediary, your intermediary may charge you a fee in connection with the exchange. See “Terms of the Reorganization and the Shareholders’ Meeting—Brokerage Commissions and Depositary Fees”. |
Q: | Are AGA shareholders entitled to exercise dissenters’, appraisal, cash exit or similar rights? |
A: | South African law provides dissenting AGA shareholders with appraisal rights in respect of the AGAH Sale and the Scheme, which allow them to sell their AGA Ordinary Shares to AGA at the fair value as at the date on which, and the time immediately before, AGA adopted the AGAH Sale Special Resolution and/or the Scheme |
Q: | How will AGA’s directors and executive officers vote at the Shareholders’ Meeting on the resolutions to approve the AGAH Sale and the Scheme? |
A: | AGA currently expects that all directors and executive officers who beneficially own AGA Ordinary Shares will vote all of their AGA Ordinary Shares (representing less than one per cent. (1%) of the outstanding AGA Ordinary Shares as of [•], 2023, without taking into consideration AGA share grants granted to the directors and executive officers) in favor of the AGAH Sale Special Resolution and the Scheme Special Resolution. |
Q: | What do I need to do now? |
A: | You are urged to read this prospectus carefully, including the information incorporated into it by reference. You may also want to review the documents referenced under “Where You Can Find More Information” and consult with your accounting, legal and tax advisors in light of your particular circumstances. Once you have considered all relevant information, you are encouraged to vote in person, by proxy, or by instructing your CSDP or bank or broker or custodian, so that your AGA Ordinary Shares are represented and voted at the Shareholders’ Meeting. |
Q: | Who can help answer my questions? |
A: | If you have any further questions about the Reorganization or if you need additional copies of this prospectus, please contact: |
Q: | Where can I find more information about AGA? |
A: | You can find more information about AGA in the documents described under “Where You Can Find More Information.” |
• | the AGAH Sale Special Resolution and the Scheme Special Resolution have been passed by the requisite majorities, as applicable, of AGA shareholders entitled to vote on the AGAH Sale and the Scheme, respectively, approving each of the AGAH Sale and the Scheme under the South African Companies Act, and (i) to the extent required by the South African Companies Act, the AGAH Sale and the implementation of the Scheme is approved by the High Court of South Africa and (ii) if applicable, AGA has not elected to treat the Scheme Special Resolution as a nullity under the South African Companies Act; |
• | AGA has received no valid demands as contemplated in section 164(5) to (8) of the South African Companies Act (whether in relation to the AGAH Sale or the Scheme) which in aggregate represent more than two per cent. (2%) of the voting rights attaching to the AGA Ordinary Shares. See “Terms of the Reorganization and the Shareholders’ Meeting—The Shareholders’ Meeting—Dissenters’, Appraisal, Cash Exit or Similar Rights”; |
• | the JSE has granted all approvals required for the AGAH Sale and Scheme (such approval being in such form as is customarily issued by the JSE in relation to similar transactions) and the secondary listing of the NewCo Ordinary Shares on the Main Board of the JSE and approval of all documentation required by the JSE to be submitted to it in connection with the AGAH Sale, Scheme and such listing; |
• | the Takeover Regulation Panel has issued a compliance certificate with respect to the AGAH Sale and the Scheme and their implementation as contemplated in section 121(b)(i) of the South African Companies Act, to the extent that such compliance certificate is required; |
• | the SEC has made a declaration confirming the effectiveness of this registration statement on Form F-4 and no stop order suspending the effectiveness of such registration statement on Form F-4 is in effect and no proceedings for such purpose are pending before or threatened by the SEC; |
• | the NYSE has granted all approvals required for the listing of the NewCo Ordinary Shares on the NYSE, subject to notice of issuance; |
• | to the extent required, other regulatory approvals, consents or rulings necessary to implement the Reorganization have been obtained; and |
• | AGA has not, prior to 10:00 a.m. South African Standard Time on the Long Stop Date, exercised its right to cancel the Implementation Agreement as a result of the occurrence of a Material Adverse Effect. |
| | | As of and for the year ended December 31, 2022 (in $) | | | For the year ended December 31, 2021 (in $) | | | For the year ended December 31, 2020 (in $) | |
Earnings per ordinary share from continuing operations | | | 0.71 | | | 1.48 | | | 2.34 |
Cash dividends per ordinary share | | | 0.43 | | | 0.54 | | | 0.11 |
Pro forma cash dividends per ordinary share | | | 0.43 | | | 0.54 | | | 0.11 |
Net assets (book value) per ordinary share | | | 987.58 | | | — | | | — |
| | | As of and for the year ended December 31, 2022 (in $) | | | For the year ended December 31, 2021 (in $) | | | For the year ended December 31, 2020 (in $) | |
Pro forma net assets (book value) per ordinary share | | | 862.40 | | | — | | | — |
| | | AGA Ordinary Shares (in ZAR) | | | AGA ADSs (in $) | |
[•], 2023 | | | [•] | | | [•] |
April 20, 2023 | | | 481.57 | | | 26.58 |
• | the AGAH Sale Special Resolution and the Scheme Special Resolution have been passed by the requisite majorities, as applicable, of AGA shareholders entitled to vote on the AGAH Sale and the Scheme, respectively, approving each of the AGAH Sale and the Scheme under the South African Companies Act, and (i) to the extent required by the South African Companies Act, the AGAH Sale and the implementation of the Scheme is approved by the High Court of South Africa and (ii) if applicable, AGA has not elected to treat the Scheme Special Resolution as a nullity under the South African Companies Act; |
• | AGA has received no valid demands as contemplated in section 164(5) to (8) of the South African Companies Act (whether in relation to the AGAH Sale or the Scheme) which in aggregate represent more than two per cent. (2%) of the voting rights attaching to the AGA Ordinary Shares. See “Terms of the Reorganization and the Shareholders’ Meeting—The Shareholders’ Meeting—Dissenters’, Appraisal, Cash Exit or Similar Rights”; |
• | the JSE has granted all approvals required for the AGAH Sale and Scheme (such approval being in such form as is customarily issued by the JSE in relation to similar transactions) and the secondary listing of the NewCo Ordinary Shares on the Main Board of the JSE and approval of all documentation required by the JSE to be submitted to it in connection with the AGAH Sale, Scheme and such listing; |
• | the Takeover Regulation Panel has issued a compliance certificate with respect to the AGAH Sale and the Scheme and their implementation as contemplated in section 121(b)(i) of the South African Companies Act, to the extent that such compliance certificate is required; |
• | the SEC has made a declaration confirming the effectiveness of this registration statement on Form F-4 and no stop order suspending the effectiveness of such registration statement on Form F-4 is in effect and no proceedings for such purpose are pending before or threatened by the SEC; |
• | the NYSE has granted all approvals required for the listing of the NewCo Ordinary Shares on the NYSE, subject to notice of issuance; |
• | to the extent required, other regulatory approvals, consents or rulings necessary to implement the Reorganization have been obtained; and |
• | AGA has not, prior to 10:00 a.m. South African Standard Time on the Long Stop Date, exercised its right to cancel the Implementation Agreement as a result of the occurrence of a Material Adverse Effect. |
• | Enhancing access to deeper pools of capital. We believe that a change in primary listing to the NYSE will increase access and broaden appeal to North American and other international investors. We believe this enhanced position could generate incremental demand and share trading liquidity. We also expect the broader investment appeal and related shift in regulatory environment to enhance the Group’s strategic and financing flexibility. |
• | Improving the Group’s competitive position in line with its global peers. Major global gold mining peers with primary listings in North America have significantly higher valuations and greater trading liquidity on U.S. exchanges than the Group does. We believe that a change in primary listing to the NYSE will increase the Group’s proximity to North American institutional investors and analysts, which is expected to improve valuation comparisons to North American peers and enhance share trading liquidity. |
• | Redomiciling to a leading, low-risk jurisdiction where the Group has a corporate presence. As a result of the Reorganization, all of the Group’s operating entities will be held under NewCo, a U.K.-incorporated entity subject to English corporate law. We believe this will provide an efficient legal, regulatory and tax framework for the Group and its shareholders which is expected to enhance strategic and financing flexibility thereby broadening the appeal of the Group to investors. We also expect to build upon the existing corporate infrastructure, relationships and knowledge of the Group in the United Kingdom, which stems from the management of AGAH, AGA’s principal holding company subsidiary, having been tax resident and headquartered there since 2017. |
• | Minimal disruption for existing stakeholders. In addition to a primary listing of the NewCo Ordinary Shares on the NYSE, NewCo will seek inward listings on the JSE and A2X in South Africa and a secondary listing on the GhSE in Ghana. As a result, the Group will continue to build upon established listings and pools of liquidity. Furthermore, the Group proposes no changes to the membership of the board or to management, who remain focused on executing the Group’s strategy. The Reorganization is not expected to result in any job losses, and certain core corporate functions servicing the Group are |
• | Continuity of shareholding structure. The Reorganization will allow existing AGA shareholders to maintain their investment in the Group in the same percentages as they held prior to the implementation of the Reorganization (subject to any adjustments to reflect the exercise of appraisal rights as described under “Terms of the Reorganization and the Shareholders’ Meeting—The Shareholders’ Meeting—Dissenters’, Appraisal, Cash Exit or Similar Rights”). |
• | Tax treatment. The Reorganization is not expected to be subject to U.S. federal or South African income tax generally, or to U.K. income tax or corporation tax for Non-U.K. Holders (as defined herein), and is expected to be broadly tax neutral for the Group on a going-forward basis, following the payment of one-off transaction taxes in South Africa and Australia. See “The Reorganization—Tax Consequences of the Reorganization and the NewCo Notes Distribution for the Group” and “Tax Consequences” for a description of the material tax consequences relating to the Reorganization. |
• | Accounting treatment. For accounting purposes, the Reorganization does not result in a business combination as defined under IFRS 3 “Business Combinations”. This is because no party to the Reorganization can be identified as an accounting acquirer in the transaction and the Reorganization does not result in any change in ownership, economic substance or carrying values for the Group. As such, the consolidated financial statements of the successor (NewCo) will reflect that the Reorganization is in substance a continuation of the Group and the consolidated financial statements of the predecessor (AGA) will become the comparative consolidated financial statements of that successor, adjusted for any reclassification between share capital and other reserves as of the Operative Date. See “—Accounting Treatment”. |
• | Significant transaction costs and expenses. While the Group will incur significant nonrecurring transaction costs and expenses in connection with the implementation of the Reorganization and the NewCo Notes Distribution, the Reorganization is not expected to result in any significant cost savings or synergies for the Group, despite the other benefits outlined above; and |
• | Risk of failure to timely implement the Reorganization. Our failure to timely implement the Reorganization could negatively affect the market price of AGA Ordinary Shares and AGA ADSs. |
| | | Beneficial | ||||||||||
| | | Direct | | | Indirect | |||||||
| | | March 31, 2023 | ||||||||||
| | | AGA Ordinary Shares | | | % of AGA Ordinary Shares Outstanding | | | AGA Ordinary Shares | | | % of AGA Ordinary Shares Outstanding | |
Non-Executive Directors | | | | | | | | | ||||
MDC Ramos | | | — | | | — | | | — | | | — |
R Gasant | | | — | | | — | | | — | | | — |
KOF Busia | | | 2,000 | | | 0.0005 | | | — | | | — |
AM Ferguson | | | 5,000 | | | 0.0012 | | | — | | | — |
AH Garner | | | 22,500 | | | 0.0054 | | | — | | | — |
MC Richter | | | 10,300 | | | 0.0025 | | | 1,000 | | | 0.0002 |
S Lawson | | | 2,830 | | | 0.0007 | | | — | | | — |
JE Tilk | | | 2,800 | | | 0.0007 | | | — | | | — |
Total-Non-Executive Directors | | | 45,430 | | | 0.0108 | | | 1,000 | | | 0.0002 |
| | | | | | | | | |||||
Executive Directors | | | | | | | | | ||||
A Calderon | | | 26,370 | | | 0.0063 | | | — | | | — |
G Doran | | | — | | | — | | | — | | | — |
Total-Executive Directors | | | 26,370 | | | 0.0063 | | | — | | | — |
| | | | | | | | | |||||
Members of the Executive Committee | | | | | | | | | ||||
L Ali | | | — | | | — | | | — | | | — |
SD Bailey | | | 13,039 | | | 0.0031 | | | — | | | — |
T Briggs | | | — | | | — | | | — | | | — |
L Eybers | | | — | | | — | | | — | | | — |
MC Godoy | | | 32,643 | | | 0.0078 | | | — | | | — |
L Marwick | | | — | | | — | | | — | | | — |
Total-Members of the Executive Committee | | | 45,682 | | | 0.0109 | | | — | | | — |
| | | | | | | | | |||||
Grand Total | | | 72,052 | | | 0.0172 | | | — | | | — |
| | | AGA Share Awards Balance at March 31, 2023(1)(2) | |
Executive Directors | | | |
A Calderon | | | 41,601 |
G Doran | | | — |
Total-Executive Directors | | | 41,601 |
| | | ||
Members of the Executive Committee | | | |
L Ali | | | 44,233 |
SD Bailey | | | 155,469 |
T Briggs | | | 47,004 |
L Eybers | | | 342,916 |
MC Godoy | | | 69,224 |
| | | AGA Share Awards Balance at March 31, 2023(1)(2) | |
L Marwick | | | 100,658 |
Total-Members of the Executive Committee | | | 759,504 |
| | | ||
Grand Total | | | 801,105 |
(1) | The latest expiry date of all share awards granted and outstanding at March 31, 2023 is February 24, 2032. |
(2) | This table includes all vested and unvested share awards of executive members of the AGA Board and members of the Executive Committee of AGA. |
• | The Irrevocable Offer to Purchase has been signed by NewCo and delivered to AGA; |
• | NewCo has procured that the NewCo Ordinary Shares are approved for listing on the NYSE, subject only to official notice of issuance; |
• | should the implementation of the AGAH Sale and/or Scheme be subject to approval by a court in terms of the provisions of section 115(2)(c) of the South African Companies Act, such approval has been obtained; |
• | AGA has not, by the expiry of the 20 business day period contemplated in section 164(7)(a) or (b) of the South African Companies Act (as the case may be), received valid demands as contemplated in section 164(5) to (8) of the South African Companies Act (whether in relation to the AGAH Sale or the Scheme) which in aggregate represent more than two per cent. (2%) of the voting rights attaching to the AGA Ordinary Shares; |
• | the AGA shareholders have passed such resolutions by the requisite majority of AGA shareholders as may be required in terms of the South African Companies Act and the Companies Regulations to approve the AGAH Sale and the Scheme, including in particular, the resolution contemplated in section 115(2) of the South African Companies Act and the resolution required in terms of section 112 and section 115(2) of the South African Companies Act; |
• | the AGA shareholders have conditionally passed special resolutions pursuant to section 164(9)(c) of the South African Companies Act revoking each of the abovementioned resolutions; |
• | such approvals from the JSE as may be required by and in terms of the JSE Listings Requirements in connection with the Reorganization have been received, including (among other things): |
• | the approval by the JSE of the AGAH Sale and the Scheme (such approval being in such form as is customarily issued by the JSE in relation to transactions similar to the AGAH Sale and the Scheme) and of all documentation required by the JSE to be submitted to it in connection with the AGAH Sale and the Scheme; and |
• | the admission to listing by way of the secondary listing of all NewCo Ordinary Shares on the Main Board of the JSE and the approval by the JSE of all documentation required by the JSE to be submitted to it in connection with such listing; |
• | the Takeover Regulation Panel has issued a compliance certificate with respect to the AGAH Sale and the Scheme and their implementation as contemplated in section 121(b)(i) of the South African Companies Act, to the extent that such approval is required; |
• | the SEC has made a declaration confirming the effectiveness of this registration statement on Form F-4 and no stop order suspending the effectiveness of such registration statement on Form F-4 is in effect and no proceedings for such purpose are pending before or threatened by the SEC; |
• | NewCo and AGAH have executed and delivered to The Bank of New York Mellon, as trustee an indenture supplemental to the indenture dated as of 28 April 2010 and entered into between AGAH (as issuer), AGA (as guarantor) and the aforesaid trustee, in connection with the assumption by NewCo of the due and punctual performance of the guarantees and the performance or observance of every covenant of the aforesaid indenture on the part of AGA to be performed or observed, which supplemental indenture will become effective upon the implementation of the AGAH Sale; |
• | if and to the extent required, any other regulatory approvals, consents or rulings necessary to implement the Reorganization have been obtained; and |
• | AGA has not, prior to 10:00 a.m. South African Standard Time on the Long Stop Date, exercised its right to cancel the Implementation Agreement as a result of the occurrence of a Material Adverse Effect. |
• | CTCNA in its capacity as custodian for securities to be issued into Strate to various CSDPs (including the Computershare CSDP) in South Africa, |
• | the applicable brokers, custodians or nominees of holders of AGA ADSs holding through DTC and |
• | CTCNA in its capacity as the U.S. Exchange Agent. |
How you currently hold your interest in AGA Ordinary Shares | | | How you will receive your NewCo Ordinary Shares (or local book-entry interests) |
Holders of AGA Ordinary Shares via a CSDP (in South Africa) | | | Strate will automatically deliver NewCo Ordinary Share book-entry interests to the same CSDP account as held the AGA Ordinary Shares |
Holders of AGA Ordinary Shares in registered certificated form (in South Africa) | | | Strate will deliver NewCo Ordinary Share book-entry interests to the valid CSDP account which was identified on the holder’s Form of Surrender and Transfer* |
Holders of AGA ADSs via a DTC participant account (in the United States) | | | DTC will automatically deliver NewCo Ordinary Share book-entry interests to the same DTC participant account as held the AGA ADSs |
Holders of AGA ADSs in registered uncertificated form (via the Direct Registration System) (in the United States) | | | DTC will deliver NewCo Ordinary Share book-entry interests to the DTC participant account of the U.S. Exchange Agent** |
Holders of AGA ADSs in registered certificated form (via AGA ADRs) (in the United States) | | | DTC will deliver NewCo Ordinary Share book-entry interests to the DTC participant account of the U.S. Exchange Agent** |
Holders of AGA depositary shares (in Ghana) | | | Strate will automatically deliver NewCo Ordinary Share book-entry interests to the same CSDP account of the Ghana depositary as held the AGA Ordinary Shares, and the Ghana depositary will automatically deliver NewCo Ghanaian depositary share book-entry interests to the same GhSE participant accounts as held the AGA GhDSs |
* | If you fail to deliver a Form of Surrender and Transfer, or, in the Form of Surrender and Transfer, you fail to provide any account details, or provide incorrect account details, of your CSDP, into which your NewCo Ordinary Shares are to be transferred, your NewCo Ordinary Shares will be delivered, on your behalf, to the Computershare CSDP. Following completion of the Reorganization, you will be sent instructions by the Computershare CSDP explaining the procedure for surrendering your share certificates and obtaining full access to your NewCo Ordinary Shares. |
** | If you are a registered uncertificated holder or a registered certificated holder of AGA ADSs, you will be sent instructions after completion of the Reorganization by the U.S. Exchange Agent explaining the procedure for (i) surrendering your AGA ADSs or AGA ADRs and (ii) obtaining full access to your NewCo Ordinary Shares. |
• | the Reorganization is subject to conditions precedent, as set out in more detail in the section entitled “Terms of the Reorganization and the Shareholders’ Meeting—Reorganization Conditions” above; |
• | prior to the implementation of the Reorganization, AGA and NewCo will have taken the following actions in connection with NewCo’s re-registration as a public limited company: |
• | AGA will subscribe for, and NewCo will issue to AGA, 50,000 (fifty thousand) redeemable preference shares of GBP 1.00 (one Pound) nominal value (the “Redeemable Preference Shares”) at a premium of GBP 1.20 (one Pound and twenty pence) per share (the total subscription price therefore being GBP 2.20 (two Pounds and twenty pence) per share including nominal value); and |
• | NewCo will have undertaken a share capital reduction to reduce GBP 1.00 (one Pound) of the premium paid on each of the Redeemable Preference Shares thereby creating distributable reserves totalling GBP 50,000 (fifty thousand Pounds) which NewCo will apply to funding the redemption of the Redeemable Preference Shares (as described below); |
• | with respect to the Spin-Off: |
• | AGA will pay USD 46,000 to NewCo; |
• | AGA will effect a distribution in specie to the AGA shareholders who are registered in the AGA register on the Reorganization Consideration Record Date (and have not exercised their appraisal rights as described under “Terms of the Reorganization and the Shareholders’ Meeting—The Shareholders’ Meeting—Dissenters’, Appraisal, Cash Exit or Similar Rights”) (such shareholders the “Scheme Participants”), and will simultaneously direct NewCo to issue the Spin-Off Shares to the Scheme Participants (via a nominee); |
• | NewCo will redeem the Redeemable Preference Shares at nominal value, as a result of which the Redeemable Preference Shares will then automatically be treated as canceled under English law; |
• | AGA will transfer for nil consideration the one NewCo Ordinary Share held by AGA (the “Founder Share”) to NewCo; and |
• | NewCo will cancel the Founder Share, following which AGA will no longer holder any shares in NewCo; |
• | subject to completion of the Spin-Off, it is the present, non-binding intention of AGA to accept NewCo’s irrevocable offer to purchase 100 per cent. (100%) of the shares in AGAH (the “AGAH Sale Shares”) and to sell the AGAH Sale Shares to NewCo in consideration for the issue by NewCo to AGA of notes in an aggregate principal amount equal to the fair market value of the AGAH Sale Shares (the “NewCo Notes”). The terms of the AGAH Sale are governed by the Irrevocable Offer to Purchase (see “The Irrevocable Offer to Purchase”); and |
• | with respect to the Scheme: |
• | subject to the completion of the AGAH Sale, on the Operative Date the Scheme Participants will exchange their AGA Ordinary Shares for the right and obligation to have, ipso facto and without any action on the part of such Scheme Participants, the respective pro rata portions of the Scheme Consideration Shares issued to them (via a nominee); and |
• | NewCo will procure that (i) the legal title to the number of Spin-Off Shares and Scheme Consideration Shares attributable to Scheme Participants who are not NewCo affiliates is |
• | The Implementation Agreement further provides that AGA and NewCo will undertake the following covenants, among others: |
• | AGA will comply with the provisions of the South African Companies Act and the regulations published in terms of the Companies Regulations applicable to it in terms of the Scheme, including: |
• | preparing and circulating the Reorganization Circular to the AGA shareholders; |
• | having the Independent Board communicate its opinion to the AGA shareholders, in the Reorganization Circular, which opinion will comply with Regulation 110 of the South African Companies Act; |
• | convening the Shareholders’ Meeting; |
• | procuring the transmittal of the Reorganization Circular and any required notices (including a voter instruction card), reports and/or communications to the AGA ADS holders, in accordance with the procedures described in the AGA Deposit Agreement; |
• | in respect of those AGA shareholders who (a) have validly delivered an appraisal rights demand to AGA in terms of section 164(5) to (8) of the South African Companies Act; and (b) have not had their rights validly reinstated in terms of section 164(10) of the South African Companies Act, pay to such AGA shareholders, in cash, an amount equal to the fair value of their AGA Ordinary Shares in accordance with section 164 of the South African Companies Act, whereafter such AGA Ordinary Shares will be cancelled by AGA and restored to the authorized, but unissued, share capital of AGA; and |
• | NewCo will comply with the provisions of the JSE Listings Requirements, U.S. securities laws and the rules and regulations of the SEC applicable to it in connection with the issuance of NewCo Ordinary Shares pursuant to the Reorganization; |
• | with respect to the distribution of the NewCo Notes (the “NewCo Notes Distribution”): |
• | following the Reorganization, AGA intends to declare a distribution in specie to NewCo of a portion of the NewCo Notes (the “Distributed Notes”) and retain the balance of the NewCo Notes (the “Retained Notes”), with the principal amount of the Retained Notes being equal to the aggregate amount of dividends tax that will be payable by AGA as a result of the NewCo Notes Distribution, and the Distributed Notes being extinguished by operation of law by virtue of NewCo being both the issuer and holder of the Distributed Notes; and |
• | in order to ensure that when AGA makes the abovementioned distribution it is solvent and liquid for purposes of section 46 of the South African Companies Act, AGA intends, before declaring the distribution, to enter into a credit support agreement with AGAH; |
• | with respect to the AGA conversion: |
• | AGA will amend the AGA MOI to convert AGA from a public company to a private company (and thereby amending its registered name from “AngloGold Ashanti Limited” to “AngloGold Ashanti Proprietary Limited”) and, upon receiving an amended registration certificate, become a private company; and |
• | upon becoming a private company, AGA will effect the Election by electing, on IRS Form 8832, to be treated as disregarded from NewCo for U.S. federal tax purposes; and |
• | upon the implementation of the Scheme, the AGA Ordinary Shares will be delisted from the JSE in accordance with the JSE Listings Requirements, and AGA will procure the delisting of any other secondary registrations it may have in any and all other jurisdictions and cause the termination of the AGA ADS facility and the delisting of the AGA ADSs from the NYSE. |
• | it is and will throughout the performance of its obligations under the Implementation Agreement remain validly incorporated in accordance with all applicable laws; |
• | it has and will continue to have the necessary legal capacity to enter into and perform each of its obligations under the Implementation Agreement; |
• | the execution of the Implementation Agreement and performance by it of its obligations thereunder do not and will not contravene any law or regulation to which it is subject or contravene any provision of its founding documents or conflict with, or result in a breach of any of the terms of, or constitute a default under any agreement or other instrument to which it is a party or subject or by which its assets are bound; and |
• | it is and will throughout the performance of its obligations under the Implementation Agreement remain solvent and liquid. |
• | NewCo irrevocably offers to purchase all (and not part only) of the AGAH Sale Shares from AGA in consideration for the issue of the NewCo Notes; |
• | AGA will be entitled to accept the offer, in respect of all (but not part only) of the AGAH Sale Shares, by countersigning the Irrevocable Offer to Purchase at any time (i) after the Spin-Off has been implemented as contemplated in the Implementation Agreement; but (ii) before the end of the third business day thereafter (the “Implementation Deadline”); |
• | upon AGA countersigning the Irrevocable Offer to Purchase, the AGAH Sale Shares will be sold by AGA to NewCo in consideration of the NewCo Notes (which will be issued to AGA on the date that the AGAH Sale is effective (the “Sale Effective Date”)), after which all risks in and benefits attaching to the AGAH Sale Shares will transfer from AGA to NewCo; |
• | the AGAH Sale is subject to the resolutive condition that if the Spin-Off and AGAH Sale are both implemented, but the Scheme is not implemented by the Implementation Deadline, then the AGAH Sale will terminate ipso facto and without any action on the part of AGA or NewCo and the status quo ante immediately prior to the implementation of the AGAH Sale will be restored as near as may be possible; |
• | AGA warrants to NewCo that, as of the Sale Effective Date: |
• | AGA is the sole legal and beneficial owner of the AGAH Sale Shares and is reflected as the sole registered holder of the AGAH Sale Shares in the register of members of AGAH, and no person has any right to obtain an order for the rectification of such register; and |
• | AGA is entitled to dispose of the AGAH Sale Shares to NewCo; and |
• | each of AGA and NewCo undertakes and warrants to the other that, as of the Sale Effective Date: |
• | it is and will remain validly incorporated in accordance with all applicable laws; |
• | it has and will continue to have the necessary legal capacity to enter into and perform each of its obligations under the Irrevocable Offer to Purchase; |
• | the execution of the Irrevocable Offer to Purchase and performance by it of its obligations thereunder do not and will not contravene any law or regulation to which it is subject or contravene any provision of its founding documents or conflict with, or result in a breach of any of the terms of, or constitute a default under any agreement or other instrument to which it is a party or subject or by which its assets are bound; and |
• | it is and will throughout the performance of its obligations under the Irrevocable Offer to Purchase remain solvent and liquid. |
• | a bank or other financial institution; |
• | a tax-exempt organization; |
• | a real estate investment trust or real estate mortgage investment conduit; |
• | an entity or arrangement classified as a partnership for U.S. federal income tax purposes or other pass-through entity such as a subchapter S corporation (or an investor in such an entity or arrangement); |
• | an insurance company; |
• | a regulated investment company; |
• | a dealer or broker in stocks and securities, or currencies; |
• | a trader in securities that elects mark-to-market treatment; |
• | a person subject to the alternative minimum tax; |
• | a person that received shares through the exercise of an employee stock option, through a tax qualified retirement plan or otherwise as compensation; |
• | a person that owns or has owned directly, indirectly or constructively, 10 per cent. (10%) or more of the voting stock of AGA prior to the Reorganization; |
• | a person that holds AGA Ordinary Shares, AGA ADSs or NewCo Ordinary Shares as part of a straddle, a hedge, constructive sale, conversion or other integrated transaction; |
• | a person that acquires or sells AGA Ordinary Shares, AGA ADSs or NewCo Ordinary Shares as part of a wash sale for tax purposes; |
• | a person that acquires AGA Ordinary Shares, AGA ADSs or NewCo Ordinary Shares pursuant to the exercise of an employee stock option or otherwise as compensation; |
• | a U.S. Shareholder (as defined below) whose functional currency is not the U.S. dollar; or |
• | a U.S. expatriate. |
1. | a citizen or resident of the U.S.; |
2. | a corporation, or any entity treated as a corporation, created or organized under the laws of the United States or any of its political subdivisions; |
3. | an estate the income of which is subject to U.S. federal income taxation regardless of its source; or |
4. | a trust that (i) a U.S. court can exercise primary supervision over the trust’s administration and one or more U.S. persons are authorized to control all substantial decisions of the trust or (ii) has a valid election in effect under applicable U.S. Treasury regulations to be treated as a U.S. person. |
1. | the gain is “effectively connected” with your conduct of a trade or business in the United States, and the gain is attributable to a permanent establishment that you maintain in the United States if that is required by an applicable income tax treaty as a condition for subjecting you to United States taxation on a net income basis, or |
2. | you are an individual, you are present in the United States for 183 or more days in the taxable year of the sale and certain other conditions exist. |
• | charities; |
• | trustees; |
• | persons carrying on certain financial activities (including market makers, brokers, dealers in securities, intermediaries and persons connected with depository arrangements or clearance services); |
• | persons who have or could be treated for tax purposes as having acquired their AGA Issued Shares or NewCo Ordinary Shares (as applicable), by reason of their employment or as carried interest; |
• | persons connected with AGA or NewCo; |
• | collective investment schemes; |
• | persons subject to U.K. tax on the remittance basis; and |
• | insurance companies. |
1. | a natural person who is ordinarily resident in South Africa; |
2. | not ordinarily resident in South Africa but physically present in South Africa for a period exceeding (i) ninety-one days in aggregate during the current year as well as for a period exceeding ninety-one days in aggregate during each of the five preceding years and (ii) for a period exceeding nine hundred and fifteen days in aggregate during those five preceding years of assessment; |
3. | an entity which is incorporated, established or formed in South Africa; or |
4. | an entity which has its place of effective management in South Africa. |
1. | a company which is tax resident in South Africa; |
2. | a public benefit organization approved in terms of section 30(3) of the ITA; |
3. | a mining rehabilitation trust in compliance with section 37A of the ITA; |
4. | an institution, board, or body established by or under any law in compliance with section 10(1)(cA) of the ITA; |
5. | a pension fund, provident fund and medical schemes in compliance with section 10(1)(d) of the ITA; |
6. | a portfolio of collective investment schemes in securities; |
7. | a person (being natural person, company or trust) to the extent that the dividend constitutes income of that person for South African income tax purposes; |
8. | a fidelity or indemnity fund as contemplated in section 10(1)(d)(iii) of the ITA; or |
9. | a small business funding entity as contemplated in section 10(1)(cQ) of the ITA. |
Robert Paul Harling Hayes (57) | | | | | ||
BSc Engineering, MBA | | | | | ||
Executive director | | | | | ||
Appointed (NewCo): February 10, 2023 and as Principal Financial Officer and Principal Accounting Officer on [•], 2023 | ||||||
Board committee memberships: | | | • | | | None |
Name | | | Age | | | Position | | | Year first appointed(1) |
Alberto Calderon | | | 63 | | | Executive director and chief executive officer | | | 2023 |
Gillian Doran | | | 46 | | | Executive director and chief financial officer | | | 2023 |
Maria Ramos | | | 64 | | | Independent non-executive director and chairperson | | | 2023 |
Kojo Busia | | | 60 | | | Independent non-executive director | | | 2023 |
Alan Ferguson | | | 65 | | | Independent non-executive director | | | 2023 |
Albert Garner | | | 67 | | | Independent non-executive director | | | 2023 |
Rhidwaan Gasant | | | 63 | | | Independent non-executive director | | | 2023 |
Scott Lawson | | | 61 | | | Independent non-executive director | | | 2023 |
Maria Richter | | | 68 | | | Independent non-executive director | | | 2023 |
Jochen Tilk | | | 59 | | | Independent non-executive director | | | 2023 |
(1) | At every annual general meeting all the directors at the date of the notice convening the annual general meeting will retire from office and may offer themselves for reappointment by the NewCo shareholders. |
Maria Ramos (64) | | | | | ||
MSc, BCom (Hons), Banker Diploma, Certified Associate of the Institute of Bankers (South Africa) | ||||||
Independent Non-Executive Director and Chairperson | ||||||
Appointed (AGA): A director on June 1, 2019 and Chairperson of the Board on December 5, 2020 | ||||||
Board committee memberships: | | | • | | | Nominations and Governance Committee (Chairperson) |
Rhidwaan Gasant (63) | | | | | ||
BCompt (Hons), CA (SA), ACIMA, Executive Development Programme | ||||||
Lead Independent Non-Executive Director | | | | | ||
Appointed (AGA): August 12, 2010 | | | | | ||
Board committee memberships: | | | • | | | Audit and Risk Committee |
| | | • | | | Nominations and Governance Committee | |
| | | • | | | Remuneration and Human Resources Committee | |
| | | • | | | Social, Ethics and Sustainability Committee | |
Alberto Calderon (63) | | | | | ||
PhD, MPhil, MA, Juris Doctor, BA | | | | | ||
Chief Executive Officer and Executive Director | | | | | ||
Appointed (NewCo): February 10, 2023 and as Principal Executive Officer on [•], 2023 | ||||||
Appointed (AGA): September 1, 2021 and as CEO on September 1, 2021 | ||||||
Board committee memberships: | | | • | | | None |
Gillian Doran (46) | | | | | | ||||
Fellow Member of Association of Chartered Certified Accountants (FCCA) | | ||||||||
Chief Financial Officer and Executive Director | | ||||||||
Appointed (AGA): January 1, 2023 and as CFO on January 1, 2023 | | | |||||||
Board committee memberships: | | | • | | | Investment Committee | | ||
Kojo Busia (60) | | | | | ||
PhD, MA, BA | | | | | ||
Independent Non-Executive Director | | | | | ||
Appointed (AGA): August 1, 2020 | | | | | ||
Board committee memberships: | | | • | | | Social, Ethics and Sustainability Committee (Chairperson) |
| | | • | | | Nominations and Governance Committee | |
| | | • | | | Investment Committee |
Alan Ferguson (65) | | | | | ||
BSc, CA (Scotland) | | | | | ||
Independent Non-Executive Director | | | | | ||
Appointed (AGA): October 1, 2018 | | | | | ||
Board committee memberships: | | | • | | | Audit and Risk Committee (Chairperson) |
| | | • | | | Remuneration and Human Resources Committee | |
| | | • | | | Nominations and Governance Committee |
Albert Garner (67) | | | | | ||
BSE | | | | | ||
Independent Non-Executive Director | | | | | ||
Appointed (AGA): January 1, 2015 | | | | | ||
Board committee memberships: | | | • | | | Investment Committee |
| | | • | | | Remuneration and Human Resources Committee |
Maria Richter (68) | | | | | ||
BA, Juris Doctor | | | | | ||
Independent Non-Executive Director | | | | | ||
Appointed (AGA): January 1, 2015 | | | | | ||
Board committee memberships: | | | • | | | Remuneration and Human Resources Committee (Chairperson) |
| | | • | | | Social, Ethics and Sustainability Committee | |
| | | • | | | Nominations and Governance Committee |
Scott Lawson (61) | | | | | ||
BSc, MBA | | | | | ||
Independent Non-Executive Director | | | | | ||
Appointed (AGA): December 1, 2021 | | | | | ||
Board committee memberships: | | | • | | | Social, Ethics and Sustainability Committee |
| | | • | | | Investment Committee |
Jochen Tilk (59) | | | | | | ||||
Bachelors Mining Engineering, Masters Mining Engineering | | | |||||||
Independent Non-Executive Director | | | | | | ||||
Appointed (AGA): January 1, 2019 | | | | | | ||||
Board committee memberships: | | | • | | | Audit and Risk Committee | | ||
| | | • | | | Social, Ethics and Sustainability Committee | | |||
| | | • | | | Nominations and Governance Committee | | |||
| | | • | | | Investment Committee (Chairperson) | | |||
Ordinary Shares held at | | | March 31, 2023 | |||
Shareholder | | | Number of AGA Ordinary Shares | | | Percentage of Voting Rights |
Public Investment Corporation of South Africa | | | 51,080,896 | | | 12.20 |
BlackRock Inc. | | | 27,267,610 | | | 6.51 |
Van Eck Associates Corporation | | | 23,772,377 | | | 5.68 |
| | | JSE | | | NYSE | |||||||
| | | Ordinary Shares | | | American Depositary Shares | |||||||
| | | High | | | Low | | | High | | | Low | |
| | | (in ZAR) | | | (in dollars) | |||||||
Year ended December 31, 2018 | | | 184.00 | | | 100.21 | | | 12.70 | | | 7.16 |
Year ended December 31, 2019 | | | 356.57 | | | 163.22 | | | 23.50 | | | 11.35 |
Year ended December 31, 2020 | | | 401.61 | | | 215.25 | | | 37.91 | | | 14.05 |
Year ended December 31, 2021 | | | 378.10 | | | 215.25 | | | 25.73 | | | 14.78 |
First Quarter 2021 | | | 378.10 | | | 295.00 | | | 25.49 | | | 19.86 |
Second Quarter 2021 | | | 371.10 | | | 261.97 | | | 25.73 | | | 18.33 |
Third Quarter 2021 | | | 299.14 | | | 215.25 | | | 20.31 | | | 14.78 |
Fourth Quarter 2021 | | | 354.90 | | | 237.49 | | | 21.11 | | | 16.23 |
Year ended December 31, 2022 | | | 401.61 | | | 213.35 | | | 25.76 | | | 12.16 |
First Quarter 2022 | | | 401.61 | | | 280.48 | | | 25.76 | | | 17.94 |
Second Quarter 2022 | | | 350.78 | | | 243.85 | | | 24.47 | | | 14.79 |
Third Quarter 2022 | | | 263.28 | | | 213.35 | | | 16.14 | | | 12.16 |
Fourth Quarter 2022 | | | 339.36 | | | 228.06 | | | 19.71 | | | 12.38 |
Month ended | | | | | | | | | ||||
January 31, 2023 | | | 390.02 | | | 345.46 | | | 23.18 | | | 20.16 |
February 28, 2023 | | | 364.41 | | | 306.79 | | | 21.16 | | | 16.66 |
March 31, 2023 | | | 431.40 | | | 311.49 | | | 24.19 | | | 16.87 |
April 2023 (through April 20, 2023) | | | 512.33 | | | 424.68 | | | 28.13 | | | 24.06 |
• | the chair of the meeting; |
• | at least five persons at the meeting who are entitled to vote; |
• | one or more shareholders at the meeting who are entitled to vote (or their proxies) and who hold between them at least 10 per cent. (10%) of the total votes of all shareholders who have the right to vote at the meeting, provided that where a shareholder is present by one or more proxies, each proxy will be treated as holding only the shares in respect of which it is authorized to exercise voting rights; or |
• | one or more shareholders at the meeting who are entitled to vote (or their proxies) and on which the total amount which has been paid up is at least 10 per cent. (10%) of the total sum paid up on all shares which give the right to vote at the meeting, provided that where a shareholder is present by one or more proxies, each proxy will be treated as holding only the shares in respect of which it is authorized to exercise voting rights. |
• | which is not a fully paid share; |
• | where the transfer is not lodged at the registered office or such other place as the NewCo Board has appointed; |
• | where the share transfer form is not properly stamped to show payment of any applicable stamp duty or certified or otherwise shown to the satisfaction of the NewCo Board to be exempt from stamp duty; |
• | where the transfer is not accompanied by the share certificate to which it relates (unless the transfer is being made by a person to whom NewCo was not required to, and did not send, a certificate), or such other evidence as the NewCo Board may reasonably require to show the transferor’s right to make the transfer, or evidence of the right of someone other than the transferor to make the transfer on the transferor’s behalf; |
• | where the share transfer form is used to transfer more than one class of share; |
• | where the number of joint holders to whom the share is to be transferred exceeds four; |
• | in other circumstances set out in the uncertificated securities rules; and |
• | in the case of shares held by an Identified Person or a Breaching Person (see “—Disclosure of interest in shares” and “—Takeover Code” below). |
• | for a period of 12 years, the shares have been in issue and at least three cash dividends have become payable (whether interim or final) but no such dividend has been cashed or otherwise satisfied by the transfer of funds to a bank account or through a relevant system by the shareholder or person concerned; |
• | NewCo has, after the expiration of that period, sent a notice to the last known address NewCo has for the relevant shareholder stating that it intends to sell the shares; and |
• | NewCo has not, during such period and the further period of three months after sending the notice and prior to the sale of the NewCo share, received any communication from the shareholder or person concerned. |
• | for any shareholder nominating a person for appointment as director to the NewCo Board (and the beneficial owner, if any, on whose behalf the nomination is being made), such letter must include a representation that the shareholder giving notice and/or beneficial owner will, to the extent any proxies in support of director nominees other than NewCo’s nominees are solicited, (a) solicit proxies from holders of NewCo’s outstanding shares representing at least 67 per cent. (67%) of the voting power of shares entitled to vote on the election of directors, (b) include a statement to that effect in its proxy statement and/or the proxy form, (c) otherwise comply with Rule 14a-19 promulgated under the Exchange Act and (d) provide the secretary of NewCo not less than five days prior to the meeting or any adjournment, rescheduling or postponement thereof, with reasonable documentary evidence (as determined by the secretary of NewCo in good faith) that such shareholder and/or beneficial owner complied with such representations; |
• | if a shareholder providing notice and/or beneficial owner that intends to solicit proxies in support of director nominees other than NewCo’s nominees no longer intends to solicit proxies in accordance with its representation pursuant to the above requirements, such shareholder and/or beneficial owner will inform NewCo of this change by delivering a writing to the secretary of NewCo no later than two business days after the occurrence of such change; and |
• | if a shareholder and/or beneficial owner providing such notice is not in compliance with such representations and the NewCo Articles, no action will be taken on such nomination and such nominee will be deemed disqualified, notwithstanding that proxies in respect of such nominee may have been received by NewCo. |
• | NewCo’s annual accounts; |
• | the directors’ remuneration report; |
• | the directors’ report; |
• | a strategic report; and |
• | the auditor’s report on those accounts, the auditable part of the directors’ remuneration report, the directors’ report and the strategic report. |
• | NewCo’s ability to enter into deal protection arrangements with a bidder would be limited; |
• | NewCo might not, without the approval of its shareholders, be able to perform certain actions that could have the effect of frustrating an offer, such as issuing shares or carrying out material acquisitions or disposals; and |
• | NewCo would be obliged to provide equality of information to any competing offerors or bona fide potential offerors. |
• | in the aggregate carry less than 30 per cent. (30%) of the voting rights of NewCo, such person may not acquire an interest which (taken together with shares in which such person or persons acting in concert with such person are interested) would carry 30 per cent. (30%) or more of the voting rights of NewCo; or |
• | in the aggregate carry not less than 30 per cent. (30%) and not more than 50 per cent. (50%) of the voting rights in NewCo, such person may not acquire an interest in any other shares in NewCo, |
• | acquires an interest in NewCo’s shares that, when taken together with shares in which persons acting in concert with such person are interested, carry 30 per cent. (30%) or more of the voting rights of NewCo; or |
• | is, together with persons acting in concert with such person, interested in shares that in the aggregate carry not less than 30 per cent. (30%) and not more than 50 per cent. (50%) of the voting rights in NewCo and acquires additional interests in shares that increase their voting rights in NewCo, |
• | during the offer period and within the 12-month period prior to its commencement, the offeror (together with any person acting in concert with it) has acquired for cash an interest in shares which represents 10 per cent. (10%) or more of the shares of that class in issue, in which case the offer for that class will be in cash or accompanied by a cash alternative at not less than the highest price paid by the offeror or any person acting in concert with it for any interest in shares of that class acquired during the offer period and within 12 months prior to its commencement; |
• | during the offer period, the offeror (together with any person acting in concert with it) acquires any interest in shares for cash, in which case the offer for that class will be in cash or accompanied by a cash alternative at not less than the highest price paid by the offeror or any person acting in concert with it for any interest in shares of that class acquired during the offer period; and/or |
• | NewCo considers that there are circumstances which render a cash offer or cash alternative necessary in order to ensure that all shareholders, and other persons with an interest in NewCo’s shares, are treated equally. |
• | any proceeding, suit or action (other than those arising under the Securities Act or the Exchange Act) between (i) a NewCo shareholder or a beneficial owner (in its capacity as such) and NewCo and/or NewCo’s directors arising out of or in connection with the NewCo Articles or otherwise, and/or (ii) to the fullest extent permitted by law, between NewCo and its directors (in their capacities as such or as employees of NewCo), including all claims made by or on behalf of NewCo against its directors, may only be brought in the courts of England and Wales; |
• | the NewCo Articles are governed by the laws of England and Wales; and |
• | unless NewCo by ordinary resolution consents to the selection of an alternative forum, the federal district courts of the United States of America will be the exclusive forum for the resolution of any proceeding, suit or action arising under the Securities Act or the Exchange Act. |
Authorized Capital and Share Issuances | |||
AGA | | | NewCo |
As of April 21, 2023, AGA had an authorized share capital of 600,000,000 AGA Ordinary Shares of par value 25 South African cents, each of which entitles the holder, subject to any preferences, rights or other share terms of any class of shares in AGA ranking prior to the AGA Ordinary Shares: • unless otherwise provided for in the AGA MOI, to one vote for every AGA Ordinary Share; • to receive any distribution in accordance with the holder’s voting power; • on a liquidation of AGA, to receive the net assets of AGA in accordance with the holder’s voting power; • to all of the preferences, rights or other terms set out in the South African Companies Act or the AGA MOI; • to any other rights at common law insofar as such rights are not inconsistent with the AGA MOI or the South African Companies Act. As of December 31, 2022, 418,600,473 AGA Ordinary Shares were issued and fully-paid and not subject to further calls or assessment by AGA. The number of authorized but unissued AGA Ordinary Shares in the capital of AGA as of December 31, 2022 was 181,399,527. The South African Companies Act provides that shares will no longer have a par or nominal value and hence no new shares having a nominal or par value may be authorized. However, any shares which have a nominal or par value authorized prior to May 1, 2011 continue | | | Under English law, subject to certain exceptions, the directors of a company generally require authority, either from the company’s articles of association or from an ordinary resolution of the company’s shareholders, to allot shares in the company or to grant rights to subscribe for or to convert any security into shares in the company. The authority must specify the maximum amount of shares that the directors may allot and when the authority expires, which must not be more than five years from (i) the date of adoption of the relevant articles of association, if the authority is contained in the articles or (ii) the date of the relevant shareholder resolution, if the authority is granted by shareholder resolution. In either case, the authority will need to be renewed by the company’s shareholders on expiration (i.e. at least every five years), but may be sought more frequently for additional five-year terms (or any shorter period). Pursuant to the NewCo Articles, the NewCo Board is authorized to allot shares in NewCo, and to grant rights to subscribe for or convert any security into shares in NewCo, up to a nominal amount of $[•], such authority to apply until the date that is five years after the date of incorporation of NewCo. All NewCo Ordinary Shares have equal voting rights and are entitled to attend and vote at all general meetings of NewCo. As of the date of this prospectus, NewCo’s issued share capital was one NewCo Ordinary Share with a nominal value of $1 each and no non-voting redeemable preference shares of £1 each. No non-voting redeemable preference shares will be outstanding upon completion of the Reorganization. |
Authorized Capital and Share Issuances | |||
AGA | | | NewCo |
to have that nominal or par value and can be issued as such for so long as there are par value shares in AGA’s authorized, but unissued, share capital. Should AGA wish, it may also elect to convert its authorized par value shares to shares of no par value, subject to the relevant process and approvals contemplated in the South African Companies Act. The AGA MOI does not limit, restrict or qualify the authority of the AGA Board to: • increase or decrease the number of authorized shares of any class of shares; • re-classify any shares that have been authorized but not issued; • classify any unclassified shares that have been authorized but not issued; and/or • determine the preferences, rights, limitations or other terms of any class of authorized shares or amend any preferences, rights, limitations or other terms so determined, subject to any requirements set out in the JSE Listings Requirements. In terms of the JSE Listing Requirements: • the creation of any class of shares; • the variation of any preferences, rights, limitations and other terms attaching to any class of shares; • the conversion of one class of shares into one or more other classes; • an increase in the number of securities of a class; • a consolidation of securities; and/or • the sub-division of any securities, will constitute an amendment to the AGA MOI, and must be approved by a special resolution of the AGA shareholders. In addition to the foregoing, if any amendment relates to the variation of any preferences, rights, limitations and other terms attaching to any class of shares already in issue, the amendment may not be implemented without the approval of a special resolution adopted by the holders of that class of shares. | | | If NewCo issues new shares this can be for a price which is at a premium to the nominal value. Each NewCo Ordinary Share issued pursuant to the Reorganization will be issued fully paid, and will not be subject to any further calls or assessments by NewCo. There are no conversion rights or redemption provisions relating to any NewCo Ordinary Shares which will be delivered in connection with the Reorganization. NewCo may, by way of ordinary resolution of its shareholders, consolidate all or any of its share capital into shares of larger amount per share than its existing shares, or sub-divide its shares or any of them into shares of smaller amount. Any resolution authorizing NewCo to subdivide any of its shares can provide that, as between the NewCo shareholders of the divided shares, different rights (including deferred rights) and restrictions of a kind which NewCo can apply to new shares can apply to different divided shares. |
Authorized Capital and Share Issuances | |||
AGA | | | NewCo |
In terms of the South African Companies Act and the JSE Listings Requirements, AGA may only issue: • shares that are fully paid up (subject to narrow exceptions); • unissued shares to AGA shareholders of a particular class of shares, pro rata to the AGA shareholders’ existing shareholding, unless, in the determination of the AGA directors: • any such shares are issued by AGA as consideration for the acquisition of an asset; • a “specific issue for cash” is undertaken, being an issue of new shares on terms that are specifically approved by AGA shareholders for that particular issue, subject to the JSE Listings Requirements; or • a “general issue for cash” is undertaken, being an issue of new shares on terms falling within a general prior authorization granted to the AGA Board by the AGA shareholders to issue up to a specified number of shares for cash (such authorization will be valid until AGA’s next annual general meeting, or for 15 months from the date of the authority being granted, whichever period is shorter). Such general issuances for cash are also subject to certain additional constraints in the JSE Listings Requirements, including, among other things, as to the extent of any discount offered. | | | |
Voting Rights | |||
AGA | | | NewCo |
Each AGA Ordinary Share confers upon the shareholders the right to vote at all general meetings, which vote will be decided by way of polling, unless the chairman of the meeting decides upon a vote by a show of hands, except that a polled vote must be held on a particular matter if a demand for such is made by: • at least five persons having the right to vote on that matter, either as a shareholder or a proxy representing an AGA shareholder; or • a person who is, or persons who together are, entitled, as a shareholder or proxy representing an AGA shareholder, to exercise at least 10 per cent. (10%) of the voting rights entitled to be voted on that matter. By polling, any person who is present at the meeting, whether as an AGA shareholder or as a proxy for an AGA shareholder, has the number of votes determined in accordance with the voting rights associated with the securities held by that AGA shareholder. Should the chairman of the general meetings decide on a vote by a show of hands, any person who is present at the meeting, whether as an AGA shareholder or as proxy for an AGA shareholder, and entitled to exercise voting rights has one vote. A holder of AGA Ordinary Shares is entitled to appoint a proxy or proxies to attend, speak and vote at any meeting on his or her behalf and the proxy need not be an AGA shareholder. In accordance with AGA’s form of proxy, a proxy who represents more than one AGA shareholder will only have one vote on a show of hands. In the case of joint AGA shareholders, the vote of the senior AGA shareholder who tenders a vote, whether in person or by proxy, will be accepted to the exclusion of the votes of the other joint AGA shareholder and for this purpose seniority is be determined by the order in which the names stand in the securities register or in the case of persons entitled to a security by transmission the order in which their names were given in the notice to AGA of the fact of the transmission. There are no limitations on the right of non-South African AGA shareholders to hold or exercise voting rights attaching to any of the AGA Ordinary Shares. | | | Pursuant to the NewCo Articles, NewCo shareholders will be entitled to vote at a general meeting, whether on a show of hands or a poll. A resolution put to a vote at a general meeting held partly by means of an electronic facility will be decided by way of a vote on a poll unless the chairman of the meeting decides that it will be decided on a show of hands. If a general meeting is not held by means of an electronic facility, a resolution put to the vote at any general meeting will be decided on a show of hands, unless a poll is demanded (in one of the manners set out below) when, or before, the chair of the meeting declares the result of the show of hands. Pursuant to the NewCo Articles, a poll may be demanded by: • the chair of the meeting; • at least five persons at the meeting who are entitled to vote; • one or more NewCo shareholders at the meeting who are entitled to vote (or their proxies) and who hold between them at least 10 per cent. (10%) of the total votes of all NewCo shareholders who have the right to vote at the meeting, provided that where a NewCo shareholder is present by one or more proxies, each proxy will be treated as holding only the shares in respect of which it is authorized to exercise voting rights; or • one or more NewCo shareholders at the meeting who are entitled to vote (or their proxies) and on which the total amount which has been paid up is at least 10 per cent. (10%) of the total sum paid up on all shares which give the right to vote at the meeting, provided that where a NewCo shareholder is present by one or more proxies, each proxy will be treated as holding only the shares in respect of which it is authorized to exercise voting rights. The chair of the meeting can also demand a poll before a resolution is put to the vote on a show of hands. For so long as any NewCo shares are held in a settlement system operated by DTC any resolution put to the vote of a general meeting must be decided on a poll. On a vote by way of a show of hands, each NewCo shareholder who is present at the general meeting in |
Voting Rights | |||
AGA | | | NewCo |
| | | person and each duly appointed proxy has one vote, except that if the proxy has been duly appointed by more than one NewCo shareholder entitled to vote and is instructed by one or more of those NewCo shareholders to vote for the resolution and by one or more others to vote against it, or is instructed by one or more of those NewCo shareholders to vote in one way and is given discretion as to how to vote by one or more others (and wishes to use that discretion to vote in the other way), the proxy will then have one vote for and one vote against the resolution. On a vote on a resolution by way of a poll, each NewCo shareholder present in person or by proxy has one vote for every NewCo share of which it is the holder. If more than one joint NewCo shareholder votes (including voting by proxy), the only vote that will count is the vote of the person whose name is listed before the other voters on NewCo’s register of shareholders in respect of the relevant shares. If a NewCo shareholder appoints more than one proxy and gives those proxies the apparent right to exercise votes on behalf of that NewCo shareholder in a general meeting over more shares than are held by the NewCo shareholder, then each of the proxy forms will be invalid and none of the proxies so appointed will be entitled to attend, speak or vote at the general meeting. Without prejudice to the foregoing, if more than one valid proxy form is received in respect of the same share (or shares) for use at the same meeting or poll, the one which is received last (regardless of its date or the date on which it is signed) will be treated as the valid form. If it is not possible to determine the order of receipt, none of the forms will be treated as valid (save where the NewCo Board determines otherwise). Any vote or demand for a poll made under the authority of a valid proxy will be valid unless written notice has been received by NewCo at the place specified by NewCo for the receipt of proxy forms not later than the last time at which a proxy form must be received to be valid that (i) the person who appointed the proxy has died or is of unsound mind; (ii) the proxy form has been revoked; or (iii) the authority of the person who signed the proxy form for the NewCo shareholder has been revoked. Such written notice must be received before the deadline for when the proxy form should have been received to be valid for use. | |
Voting Rights | |||
AGA | | | NewCo |
| | | Under English law, a person who is neither a resident nor national of the United Kingdom may freely hold, vote and transfer NewCo Ordinary Shares in the same manner and under the same terms as a U.K. resident or national. | |
Cumulative Voting | |||
AGA | | | NewCo |
The AGA MOI does not provide for cumulative voting in respect of any of the classes of AGA’s shares. | | | NewCo shareholders do not have the right to cumulative voting. |
Variation of Rights | |||
AGA | | | NewCo |
If any amendments are proposed to any preferences, rights, limitations or other terms of any class of AGA shares, such amendment is subject to the prior sanction of a resolution passed at a separate meeting of the shareholders of that class of shares in the same manner as a special resolution. Any amendment to the AGA MOI that alters the preferences, rights, limitations or other terms of any class of shares in any manner materially adverse to the rights or interests of holders of that class of shares entitles any holder of those shares to exercise its appraisal rights. The AGA MOI specifies that the rights conferred upon AGA shareholders of any class are not, unless otherwise expressly provided by the conditions of issue of such shares, deemed to be varied by the creation or issue of further shares ranking pari passu therewith. | | | The rights attaching to any class of NewCo shares can be changed in a way provided by those rights or if no such provision is made, if the change is approved either in writing by NewCo shareholders holding at least three quarters of the issued shares of that class by amount (excluding any shares of that class held as treasury shares) or by a special resolution passed at a separate meeting of the holders of the relevant class of shares. To every such separate class meeting the provisions of the NewCo Articles relating to general meetings will apply, except that (i) the quorum for any such meeting is one or more NewCo shareholders present in person or by proxy, and who together hold at least one third in amount of the issued shares of the class in question (excluding treasury shares) provided that where a shareholder is present by one or more proxies, each proxy will be treated as holding only the shares in respect of which it is authorized to exercise voting rights; (ii) any NewCo shareholder who is present in person or by proxy and entitled to vote can demand a poll; and (iii) at an adjourned meeting, the quorum will be one person entitled to vote holding shares of the class in question (excluding treasury shares) or its proxy. English law also confers a right of objection on NewCo shareholders who did not vote in favor of the variation – if NewCo shareholders representing 15 per cent. (15%) or more of the issued shares of the relevant class apply to court to cancel the variation, the variation will have no effect unless and until it is confirmed by the court. In such circumstances, the court may disallow the variation if it is satisfied, having regard to all the circumstances, that the variation would unfairly prejudice the shareholders of the class being represented by the applicant. If new NewCo shares are created or issued which rank equally with, or subsequent to, any other existing |
Variation of Rights | |||
AGA | | | NewCo |
| | | shares, or if NewCo purchases or redeems any of its own shares or makes any other return of capital on any other class of shares, the rights of the existing shares will not be regarded as changed or abrogated unless the terms of the existing shares expressly say otherwise. | |
Amendment of Governing Documents | |||
AGA | | | NewCo |
Under the South African Companies Act, AGA may amend the AGA MOI by way of a special resolution to amend it, that: • is proposed by – • the AGA Board; or • the AGA shareholders who are entitled to exercise at least 10 per cent. (10%) of the voting rights that may be exercised on such resolution; and • is adopted at an AGA shareholders’ meeting. A resolution is a special resolution if it is supported by at least 75 per cent. (75%) of the voting rights exercised on the resolution. | | | Under English law, the NewCo Articles may only be amended by means of a special resolution of the NewCo shareholders. The NewCo Board is not authorized to change the NewCo Articles. A shareholder special resolution is required to amend any provision of the NewCo Articles that is not “entrenched”. None of the provisions in the NewCo Articles are currently entrenched. If a provision is entrenched, the entrenched provision may only be amended or repealed if the stated conditions and/or procedures, which are more restrictive than those applicable in the case of a special resolution, have been met and complied with. A special resolution voted on at a meeting by way of a show of hands is passed if it is voted for by not less than 75 per cent. (75%) of those who, being entitled to vote, do so in person or by proxy. A special resolution voted on at a meeting by way of a poll is passed by NewCo shareholders representing not less than 75 per cent. (75%) of the total NewCo shares voted by NewCo shareholders in person or by proxy. |
Appraisal Rights / Dissenters’ Rights | | | ||||
AGA | | | NewCo | | ||
The South African Companies Act confers appraisal rights upon dissenting AGA shareholders. The relevant provision of the South African Companies Act applies in circumstances where AGA has given notice to AGA shareholders of a meeting to consider adopting a resolution to: • amend the AGA MOI; or • enter into a – • transaction that disposes of all or the greater part of AGA’s assets or undertaking; • proposal for amalgamation or merger; or | | | English law does not generally provide for “appraisal rights”. However, English law provides that where: (i) a takeover offer is made for NewCo’s shares (other than via a scheme of arrangement); and (ii) following the offer, the offeror has acquired or contracted to acquire 90 per cent. (90%) or more in value of the shares to which the takeover offer relates, and 90 per cent. (90%) or more of the voting rights carried by the shares to which the offer relates, the offeror may require the other NewCo shareholders who did not accept its offer to transfer their shares to the offeror on the same terms as the offer. The offeror would do so by sending a notice to outstanding minority NewCo shareholders telling them that it will compulsorily acquire their shares. Such notice must be | | ||
Appraisal Rights / Dissenters’ Rights | | | ||||
AGA | | | NewCo | | ||
• proposal for a scheme of arrangement. At any time before any of the abovementioned resolutions is voted on, a dissenting AGA shareholder may give AGA notice of a written objection to the resolution. An AGA shareholder may demand that AGA pay the AGA shareholder the fair value as at the Fair Value Determination Time for all of the shares of AGA held by that person if: • the AGA shareholder – • sent AGA a notice of objection; and • where the AGA MOI is amended, holds shares that are materially and adversely affected by the amendment; • AGA has adopted the resolution to amend the AGA MOI or to authorize it to enter into the significant transactions / proposals outlined above; and • the AGA shareholder – • voted against the resolution; and • has complied with the procedural requirements of section 164 of the South African Companies Act. Further, under the South African Companies Act, every AGA shareholder or director may apply to court for relief from oppressive or prejudicial conduct or from abuse of separate juristic personality of AGA. This relief, as provided for in terms of section 163 of the South African Companies Act, applies in cases where: • there has been any act or omission of AGA that unfairly disregards the interests of the applicant; • the business of AGA is being conducted in an oppressive or unfairly prejudicial manner; or • the powers of a director of AGA are being exercised in an oppressive or unfairly prejudicial manner. The court may, with a view to ending the conduct complained of, make such orders as it deems fit. These may include orders which (inter alia) regulate the future conduct of AGA by amending the AGA MOI, requiring AGA to pay compensation to the aggrieved person or granting an order restraining the conduct complained of. | | | sent within three months of the last day on which the offer can be accepted in the prescribed manner. A dissenting NewCo shareholder may then object to the transfer on the basis that the compulsory acquisition would constitute unfair prejudice (typically on the grounds that the offeror is not entitled to acquire shares or that the terms of acquisition should be different to those offered) by application to court within six weeks of the date on which notice of mandatory transfer was given. Absent any fraud or oppression, the court is unlikely to order that the mandatory acquisition will not take effect, although it may specify terms of the transfer that it finds to be appropriate. The squeeze-out of the minority NewCo shareholders can be completed at the end of six weeks from the date the notice has been given, subject to the outstanding minority NewCo shareholders failing to successfully lodge an application to the court to prevent such squeeze-out any time prior to the end of those six weeks, following which the offeror can execute a transfer of the outstanding shares in its favor and pay the consideration to NewCo, which NewCo would then hold on trust for outstanding minority NewCo shareholders. The consideration offered to the outstanding minority NewCo shareholders whose shares are compulsorily acquired must, in general, be the same as the consideration that was available under the takeover offer. Further, English law also gives outstanding minority NewCo shareholders a right to be bought out in certain circumstances by an offeror who has made a takeover offer for all of NewCo’s shares. A holder of shares to which the offer relates, and who has not otherwise accepted the offeror’s offer, may require the offeror to acquire its shares if, prior to the expiry of the acceptance period for such offer, the offeror has acquired or unconditionally agreed to acquire (i) 90 per cent. (90%) or more in value of NewCo’s shares, and (ii) 90 per cent. (90%) or more of the voting rights carried by those shares. The offeror must notify the outstanding minority NewCo shareholders of their sell-out right within one month of the above thresholds being met, and the outstanding minority NewCo shareholders then have three months from the end of the offer period (or, if later, from the date of the notice from the offeror) to exercise their sell-out rights. Should a NewCo shareholder exercise its rights to be bought out, the offeror is required to acquire such NewCo shareholder’s shares on the terms of the general takeover offer or on such other terms as may be agreed. | | ||
Appraisal Rights / Dissenters’ Rights | | | ||||
AGA | | | NewCo | | ||
The South African Companies Act contains provisions relating to compulsory acquisitions and squeeze outs, which provide that if within four months following the date of an offer for the acquisition of AGA shares, the offer has been accepted by the holders of at least 90 per cent. (90%) of the AGA shares, other than any such AGA shares held by the offeror before the offer, a related or inter-related person, or persons acting in concert, or a nominee or subsidiary of any such person or persons, the offeror may acquire all remaining AGA shares. The offeror will be entitled, and bound, to acquire such remaining AGA shares on the same terms that applied to AGA shares whose holders accepted the original offer, if within two months thereafter, the offeror notifies (in the manner and form prescribed under the South African Companies Act) the holders of the remaining AGA shares: (i) that the offer has been accepted to that extent; and (ii) that the offeror desires to acquire all remaining AGA shares (such notice, the “Squeeze Out Notice”). A person may, within 30 business days after receiving the Squeeze Out Notice, apply to a court for an order: (i) that the offeror is not entitled to acquire the applicant’s AGA shares; or (ii) imposing conditions of acquisition different from those of the original offer. Further, the South African Companies Act gives minority AGA shareholders a right to be bought out in certain circumstances by an offeror if the offeror or a nominee or subsidiary of the offeror, or a related or inter-related person of any of them, individually or in aggregate hold at the completion of the offer, together with any other AGA shares already held by that person, or those persons in aggregate at the outset of the offer, at least 90 per cent. (90%) of the AGA shares. If this threshold is met, the offeror must notify the holders of the remaining AGA shares that the offer has been accepted. Within three months after receiving such notice, a person may demand that the offeror acquire all of the person’s AGA shares (“Compulsory Acquisition Demand”); and after receiving such Compulsory Acquisition Demand, the offeror is required to acquire the remaining AGA shares concerned on the same terms that applied to AGA shares whose holders accepted the original offer. | | | English law also permits the shareholders of a company (including minority shareholders) to bring certain claims in relation to the actual or proposed acts or omissions of NewCo which constitute the conduct of NewCo’s affairs in such a manner which is unfairly prejudicial to the petitioner’s interests as a shareholder. Such conduct includes, without limitation: (i) breaches of fiduciary duty/duties on the part of NewCo’s directors prejudicing the interests of shareholders; (ii) mismanagement which is serious having regard to the scale of financial loss arising and the frequency and duration of the relevant acts and omissions; and (iii) improper failures to pay dividends/payments of excessive remuneration. Following a successful unfair prejudice claim, the court may make such order as it thinks fit to remedy any unfair prejudice, including without limitation: (i) ordering the purchase/sale of the petitioner’s shares at a price and on terms to be determined by the court (i.e. buying out the petitioner); (ii) regulating the conduct of NewCo’s affairs for the future; and (iii) requiring NewCo to refrain from, or to carry out, an act, including amendments to its articles of association. | | ||
Appraisal Rights / Dissenters’ Rights | | | ||||
AGA | | | NewCo | | ||
The offeror must within six weeks (i) after the date on which the Squeeze Out Notice was given or, if an application to a court is pending, after the application has been disposed of, or (ii) after the date on which the Compulsory Acquisition Demand was received: • in the case of a squeeze out, transmit a copy of the Squeeze Out Notice to AGA, together with an instrument of transfer, executed on behalf of the holder of the relevant AGA shares; or • in the case of a squeeze out or a compulsory acquisition (as the case may be), pay or transfer to AGA the consideration representing the price payable by the offeror for the AGA shares concerned, thereupon, subject to the payment of prescribed fees or duties, AGA must register the offeror as the holder of those AGA shares. | | | | |||
Pre-emptive Rights | |||
AGA | | | NewCo |
In general, and in accordance with the JSE Listings Requirements, if AGA is proposing to issue shares for cash, AGA must first offer those shares (unless the issue is (i) an issue of shares in consideration for, among other things, the acquisition of an asset or the acquisition of, or merger with, another company, or (ii) AGA has been authorized by its shareholders, by way of an ordinary resolution approved by 75 per cent. (75%) of the shareholders, to issue such shares) effected by way of rights offer, to the existing holders of AGA shares in proportion to their existing holdings. Only to the extent that such AGA shares are not taken up by holders of AGA shares under the offer, may they then be issued for cash to other persons or otherwise than in the proportion mentioned above. | | | English law generally provides shareholders with pre-emptive rights when new shares are issued for cash; however, it is possible for a company’s articles of association, or shareholders in a general meeting, to exclude pre-emptive rights. Such an exclusion of pre-emptive rights may only be for a maximum period of five years from (i) the date of adoption of the relevant articles of association, if the exclusion is contained in its articles or (ii) the date of the relevant shareholder resolution if the exclusion is by shareholder resolution. In either case, the exclusion will need to be renewed by the company’s shareholders on expiration (i.e. at least every five years), but may be sought more frequently for additional five-year terms (or any shorter period). Pursuant to the NewCo Articles, the NewCo Board is authorized to exclude pre-emptive rights for a period of five years after the date of NewCo’s incorporation in respect of the allotment of NewCo equity securities (including NewCo Ordinary Shares) or the sale of NewCo Ordinary Shares held as treasury shares up to a maximum nominal amount of $[•]. This authorization under the NewCo Articles will be in addition to any power granted to the NewCo Board by NewCo’s shareholders by means of a special resolution. |
Action by Written Consent of Shareholders | |||
AGA | | | NewCo |
Under the South African Companies Act, a resolution that could be voted on at a shareholders’ meeting may instead be: • submitted for consideration to the shareholders entitled to exercise voting rights in respect of the resolution; and • voted on in writing by the shareholders entitled to exercise voting rights in relation to the resolution, within 20 business days after the resolution was submitted. However, any business of AGA that is required, in terms of the South African Companies Act or the AGA MOI (if applicable), to be conducted at an annual general meeting may not be conducted by the shareholders acting other than at a meeting. Examples of business that must be contemplated at an annual general meeting includes filling any vacancies of the AGA Board that may arise and appointing an auditor of AGA. The AGA MOI provides that shareholder meetings that are called for the purpose of passing any resolution required in terms of the JSE Listings Requirements may not be held by means of a written resolution, as provided for in terms of section 60 of the South African Companies Act, unless permitted by the JSE Listings Requirements. In this regard, the JSE Listings Requirements provide that a resolution to: (i) change the name of AGA; (ii) approve an odd-lot offer; (iii) increase the authorized share capital of a company; or (iv) approve amendments to the AGA MOI, may be passed as a written resolution. | | | English law does not permit a public limited company to act by written consent of shareholders. All shareholder decisions must be taken at a general meeting. |
Shareholders’ Meetings | |||
AGA | | | NewCo |
The AGA Board may convene a general meeting of AGA shareholders. The South African Companies Act states that a company must hold a shareholders’ meeting: • at any time that the AGA Board is required to refer a decision to the AGA shareholders in terms of the South African Companies Act or the AGA MOI; • to fill a vacancy on the AGA Board; or • as otherwise required by the AGA MOI. The AGA Board must call a shareholders’ meeting if one or more written and signed demands for such meeting are delivered, and: • each demand describes the specific purpose of the proposed meeting; and • in aggregate, demands for substantially the same purpose are made and signed by the holders of at least 10 per cent. (10%) of the voting rights entitled to be exercised in relation to the matter proposed to be considered at the meeting. An AGA annual general meeting and a meeting of AGA shareholders may be called by giving 15 business days’ notice in writing of that shareholders’ meeting. AGA must convene an annual general meeting of AGA shareholders once in every calendar year, but no more than 15 months after the date of the previous annual general meeting, or within an extended time allowed by the South African Companies Tribunal, on good cause shown. AGA must distribute the notice of the annual general meeting at least 15 business days before the date of the annual general meeting. The AGA MOI provides that a quorum for a shareholders’ meeting consists of three shareholders that are present at the meeting and there are sufficient persons present at the meeting to exercise at least 25 per cent. (25%) of the voting rights that are capable of being exercised at that meeting. Further, a quorum must be established within 30 minutes (or such longer or shorter period as the chairman of the shareholders’ meeting may determine) before a shareholders’ meeting may be adjourned. A meeting: • may be adjourned to either – | | | The NewCo Board may convene a general meeting of NewCo shareholders. If the directors fail to call the general meeting requested by the NewCo shareholders, the shareholders who requested the meeting, or any of them representing more than one half of the total voting rights of all of them, may themselves call a general meeting. Such meeting must be called for a date not more than three months after the date on which the directors become subject to the requirement to call a meeting. Any reasonable expenses incurred by the NewCo shareholders requesting the meeting by reason of the failure of the directors duly to call a meeting must be reimbursed by NewCo. Under English law, NewCo is required to hold an annual general meeting of its shareholders within six months of the end of its fiscal year. An annual general meeting must be called by not less than 21 clear days’ notice (i.e. excluding the deemed date of receipt of the notice and the date of the meeting itself). English law does not specify what business must be transacted at an annual general meeting, nor are there any restrictions on the business that can be transacted – however, an annual general meeting is usually the meeting that is used for matters which must be dealt with each financial year, such as re-election of directors, fixing the remuneration of auditors, and consideration of annual accounts, the directors’ report and the auditors’ report. General meetings which are not annual general meetings may be called with not less than 14 clear days’ notice (i.e. excluding the deemed date of receipt of the notice and the date of the meeting itself) only if (i) NewCo offers an electronic voting facility and (ii) a special resolution reducing the notice period to not less than 14 days clear days has been passed by shareholders at NewCo’s most recent annual general meeting or a general meeting held since NewCo’s most recent annual general meeting. Otherwise, general meetings must be called with not less than 21 clear days’ notice. Notice of meetings (including both general meetings and annual general meetings) must be given to every shareholder and director of NewCo and NewCo’s auditors. A notice of meeting will specify: (i) the time, date and place of the meeting (including any satellite meeting place, identified as such in the notice); (ii) the general nature of the business to be dealt with; |
Shareholders’ Meetings | |||
AGA | | | NewCo |
• a fixed time and place; or • until further notice, as agreed at the meeting; and • further notice must be given to the shareholders only if the meeting was adjourned until further notice. A meeting may not be adjourned beyond the earlier of: • the date that is 120 business days after the record date; and • the date that is 60 business days after the date on which the adjournment occurred. Subject to the South African Companies Act, at any AGA shareholders meeting a resolution put to the vote will be decided by way of polling, unless the chairman of the meeting decides upon a vote by a show of hands. An ordinary resolution must be passed by a simple majority of the AGA shareholders entitled to vote who are present at the meeting, personally or by proxy. A special resolution must be adopted with the support of at least 75 per cent. (75%) of the voting rights exercised on the resolution who are present at the meeting, personally or by proxy. Certain actions may only be carried out if they have been approved by special resolution. This includes (but is not limited to) changes to the AGA MOI, the ratification of certain actions by AGA or the AGA directors in excess of their authority, the approval of certain issues of shares, securities or grant of rights, the approval of certain reacquisitions of shares, the approval of the voluntary winding up of the company, and the approval of any proposed fundamental transaction. Certain resolutions required to be approved by an increased majority in terms of the JSE Listings Requirements must be approved by the same increased majority as a special resolution, including (but not limited to) granting authority to the AGA Board to repurchase securities, approving the removal of the listing of any securities (subject to certain exemptions), granting the authority to the AGA Board to issue securities for cash and approving incentive and compensation schemes. | | | (iii) whether the meeting is an annual general meeting; and (iv) if any special resolutions have been proposed by the NewCo Board. Shareholders, their proxies and corporate representatives, and auditors have the right to attend and speak at a general meeting. The directors may make arrangements for simultaneous attendance and participation by electronic means (including the use of satellite meeting places) so as to allow persons who are entitled to attend and participate in a general meeting but who are not present together at the same place to attend, speak and vote at the general meeting. The quorum for a general meeting is at least one or more NewCo shareholders present in person or by proxy who together hold at least 25 per cent. (25%) of the issued shares (excluding any shares held as treasury shares), provided that where a shareholder is present at the meeting by one or more proxies, each proxy will be treated as holding only the shares in respect of which it is authorized to exercise voting rights. Before a general meeting starts to do business, there must be a quorum present. If a quorum is not present, a chair of the meeting can still be chosen and this will not be treated as part of the business of the meeting. If a meeting is called by NewCo shareholders, it will be cancelled if a quorum is not present within five minutes of the time fixed for a general meeting to start or within any longer period not exceeding one hour which the chair of the meeting can decide or if a quorum ceases to be present during a general meeting. Any other meeting will be adjourned to a day (being not less than ten days later, excluding the day on which the meeting is adjourned and the day for which it is reconvened), time and place or places and with such means of attendance and participation decided on by the chair of the meeting. One shareholder present in person or by proxy and entitled to vote will constitute a quorum at any adjourned meeting and any notice of an adjourned meeting will say this. If the NewCo Board considers that it is impracticable or undesirable to hold a general meeting, whether generally or on the date or at the time or place stated in the notice calling the meeting, or otherwise considers it appropriate to change other arrangements in relation to a general meeting, it can move or postpone the meeting or change, cancel or introduce |
Shareholders’ Meetings | |||
AGA | | | NewCo |
| | | any electronic facility or make other changes in respect of the meeting (or do any of these things). If a meeting is rearranged in this way, proxy forms are valid if they are received as required by the NewCo Articles not less than 48 hours before the time of the rearranged meeting. Resolutions are proposed as either ordinary or special resolutions. An ordinary resolution voted on at a meeting by way of a show of hands is passed if it is voted for by a simple majority (more than 50 per cent. (50%) of the votes cast) of those who, being entitled to vote, do so in person or by proxy. An ordinary resolution voted on at a meeting by way of a poll is passed by NewCo shareholders representing a simple majority of the total NewCo shares voted by shareholders in person or by proxy. A special resolution voted on at a meeting by way of a show of hands is passed if it is voted for by not less than 75 per cent. (75%) of those who, being entitled to vote, do so in person or by proxy. A special resolution voted on at a meeting by way of a poll is passed by NewCo shareholders representing not less than 75 per cent. (75%) of the total NewCo shares voted by shareholders in person or by proxy. Certain actions may only be carried out if they have been approved by special resolution. This includes (but is not limited to) changes to the NewCo Articles, the disapplication of pre-emptive rights, and the re-registration of NewCo as a private company. | |
Shareholder Proposals | |||
AGA | | | NewCo |
The AGA Board must call a shareholders meeting if one or more written and signed demands for such a meeting are delivered to AGA, and: • each such demand describes the specific purpose for which the meeting is proposed; and • in aggregate, demands for substantially the same purpose are made and signed by the holders, as of the earliest time specified in any of those demands, of at least 10 per cent. (10%) of the voting rights entitled to be exercised in relation to the matter proposed to be considered at the meeting. Under South African law, AGA shareholders have wide powers to propose a resolution. Any two AGA shareholders can propose a resolution concerning any matter in respect of which they are each entitled to exercise voting rights to be submitted for consideration. When proposing a resolution, the AGA shareholders can require the resolution to be submitted for consideration at a general meeting requisitioned by the AGA shareholders, or at the next general meeting, or by a written resolution without a meeting, provided that it is permissible for such resolution to be passed as a written resolution in terms of the JSE Listings Requirements. A proposed resolution must be expressed with sufficient clarity and specificity and must be accompanied by sufficient information or explanatory material to enable shareholders to determine whether to participate in the meeting and how to vote. The notice of meeting to vote on certain corporate actions is included in a circular issued to shareholders, providing detailed information about the proposed resolution(s). | | | Under English law, if NewCo receives a request to call a general meeting from any NewCo shareholder(s) representing 5 per cent. (5%) or more of the total voting rights of NewCo (excluding any voting rights attached to treasury shares), then the NewCo Board must call, and give notice of, a general meeting within 21 days of receiving such request. The general meeting must be held within 28 days of the notice being given. The request may include the text of any resolution which is intended to be moved at the meeting, in which case the notice of the meeting and the business which may be dealt with at the meeting must and will include such resolution. A resolution may be properly be moved at a general meeting unless (i) it would, if passed, be ineffective (whether by reason of inconsistency with any enactment or NewCo’s constitution or otherwise), (ii) it is defamatory of any person or (iii) it is frivolous or vexatious. Under English law, shareholders (holding 5 per cent. (5%) of the shares or at least 100 shareholders who hold an average (per shareholder) of paid up capital of at least £100) have the right to include resolutions in the notice for a NewCo annual general meeting provided the resolution may be properly moved at the annual general meeting. A resolution may be properly be moved at an annual general meeting unless (i) it would, if passed, be ineffective (whether by reason of inconsistency with any enactment or NewCo’s constitution or otherwise), (ii) it is defamatory of any person or (iii) it is frivolous or vexatious. The NewCo Articles impose requirements with respect to the content of any shareholder notice to either (i) request a general meeting for the purposes of proposing a resolution or (ii) propose a resolution for a general meeting. The provisions require the notice to include (without limitation) the reasons for proposing such resolution or requesting such general meeting and matters relating to the identity of the relevant person requisitioning the resolution and certain associated persons (including those acting in concert), and their respective interests in NewCo, any arrangements between the requisitioning person and its associated persons or with any other person in connection with the proposed resolution and other information that may be required to be disclosed in (i) a proxy statement or other filings required to be made in connection with solicitations of proxies pursuant to Section 14 of the Exchange Act or (ii) a Schedule 13D filed pursuant to Rule 13d-1(a) or an amendment pursuant to Rule 13d-2(a) if such a statement were required to be |
Shareholder Proposals | |||
AGA | | | NewCo |
| | | filed under the Exchange Act and the rules and regulations promulgated thereunder. Additionally, the NewCo Articles impose requirements as to when such notices must be delivered. The provisions require the person requisitioning a resolution to be put to an annual general meeting (other than a resolution to remove a director in accordance with the requirements of English law) to deliver any such request in writing to the registered office of NewCo, marked for the attention of “The Company Secretary”, not less than 90 nor more than 120 days before the day prior to the date of the first anniversary of the preceding year’s annual general meeting, provided, however, that in the event that the date of an annual general meeting is more than thirty calendar days before or more than sixty calendar days after the date of the first anniversary of the preceding year’s annual general meeting, notice by the person requisitioning the resolution must be so delivered in writing not earlier than the close of business on the 120th calendar day prior to the scheduled date for such annual general meeting and not later than the close of business on the later of (i) the 90th calendar day prior to the scheduled date for such annual general meeting and (ii) the 10th calendar day after the day on which public announcement of the date of such annual general meeting is first made by NewCo. In no event will any adjournment or postponement of an annual general meeting or the announcement thereof commence a new time period for the delivery of a notice or request. In relation to the first annual general meeting of NewCo occurring after January 1, 2024, references to the anniversary date of the preceding year’s annual general meeting will be to May 15, 2023. If a NewCo shareholder fails to comply with the notice requirements set out in the Articles, NewCo will not be obliged to put the resolution to the annual general meeting (and such resolution may not be properly moved at the annual general meeting) or to call the general meeting. An Identified Person or a Breaching Person (see “—Disclosure of interest in shares” and “—Takeover Code” above) will not be entitled to requisition that a resolution be put to an annual general meeting or to requisition that NewCo calls a general meeting. | |
Election of Directors | |||
AGA | | | NewCo |
The AGA MOI requires AGA to have at least four directors, and sets the maximum number of directors at 20. The AGA shareholders elect the directors and are entitled to elect one or more alternate directors. In terms of the South African Companies Act, AGA shareholders have wide powers to propose shareholder resolutions and any two AGA shareholders can propose a resolution whereby a person is nominated for election to the AGA Board. The AGA MOI does not provide for the appointment of any person as an ex officio director. Further, there is no stipulation of any additional qualifications or eligibility requirements of directors, provided that: • a person will be ineligible to serve as a director of a company if that person: (i) is a juristic person; (ii) is an unemancipated minor or is under legal disability; or (iii) does not satisfy a qualification set out in the company’s memorandum of incorporation (the AGA MOI does not prescribe any qualifications for directors); • a person will be disqualified from being a director of a company if: (i) a court has prohibited that person from being a director or declared that person a delinquent director; (ii) the person is an unrehabilitated insolvent; (iii) the person is prohibited in terms of any public regulation to be a director of the company; (iv) the person has been removed from an office of trust, on the grounds of misconduct involving dishonesty; (v) the person has been convicted, in South Africa or elsewhere, and imprisoned without the option of a fine, or fined more than the prescribed amount, for theft, fraud, forgery, perjury or an offence: • involving fraud, misrepresentation or dishonesty; • in connection with the promotion, formation or management of a company; or • under the South African Companies Act, the South African Insolvency Act, 1936, the South African Close Corporations Act, 1984, the South African Competition Act, 1998, the South African Financial Intelligence Centre Act, 2001, the South African Financial Markets Act, 2012, or Chapter 2 of the South African Prevention and Combating of Corrupt Activities Act, 2004. | | | Under English law, public companies such as NewCo must have at least two directors, and at least one director must be a natural person – the NewCo Articles can however set out a higher minimum. English law does not prescribe a maximum number of directors, although the NewCo Articles can impose a maximum. The NewCo Articles provide that NewCo must have a minimum of four directors and a maximum of 20 directors (disregarding alternate directors). Pursuant to the NewCo Articles, NewCo shareholders have the right to elect directors by ordinary resolution. Subject to the written approval of a majority of NewCo directors, the NewCo Board is also entitled to appoint directors, although such appointment must then be approved by NewCo’s shareholders by way of ordinary resolution at the next general meeting. The NewCo Articles impose requirements with respect to the content of a shareholder notice submitted by a NewCo shareholder nominating a director for election (in addition to the requirements imposed generally to requisition a resolution at a shareholders meeting). The notice must include, among other things, information regarding any voting commitments or compensation arrangements of such nominee, as well as material relationships of the person requisitioning the resolution and/or certain associated persons and the nominee and any other information that may be required to be disclosed in connection with the election of such director pursuant to Regulation 14A under the Exchange Act. The above must be provided within the timeframes specified for requisitioning shareholder proposals. If a NewCo shareholder fails to comply with the notice requirements set out in the Articles, NewCo will not be obliged to put the resolution for appointment of the nominee to the general meeting (and such resolution may not be properly moved at the annual general meeting). If Rule 14a-19 promulgated under the Exchange Act applies to NewCo, • for any shareholder nominating a person for appointment as director to the NewCo Board (and the beneficial owner, if any, on whose behalf the nomination is being made), such letter must include a representation that the shareholder giving notice and/or beneficial owner will, to the extent any |
Election of Directors | |||
AGA | | | NewCo |
So long as the JSE Listings Requirements require, the AGA Board (through the nomination committee) should recommend the eligibility of directors, taking into account past performance and contributions. At every annual general meeting, one third of the directors for the time being, or if their number is not a multiple of three, then the number nearest to, but not less than, one third must retire from office. The directors so to retire at every annual general meeting are those who have been longest in office since their last election, but as between persons who become or were last elected directors on the same day, those to retire are (unless otherwise agreed) determined by lot, provided that notwithstanding anything in the AGA MOI: • if at the date of any annual general meeting any director has held office for a period of 3 years since his last election or appointment, he must retire at such meeting either as one of the directors to retire in pursuance of the foregoing or additionally thereto; • a director who intends to retire voluntarily at the meeting may be taken into account in determining the one third of the directors to retire at such meeting; • the identity of the directors to retire at such annual general meeting is determined as at the date of the notice convening the meeting; and • the length of time a director has been in office is computed from his last election, appointment or date upon which he was deemed re-elected. A director retiring at a meeting retains office until the close or adjournment of the meeting. Retiring directors are eligible for re-election but no person, other than a director retiring at the meeting, is (unless recommended by the directors) eligible for election to the office of a director at any shareholders’ | | | proxies in support of director nominees other than NewCo’s nominees are solicited, (a) solicit proxies from holders of NewCo’s outstanding shares representing at least 67 per cent. (67%) of the voting power of shares entitled to vote on the election of directors, (b) include a statement to that effect in its proxy statement and/or the proxy form, (c) otherwise comply with Rule 14a-19 promulgated under the Exchange Act and (d) provide the Company Secretary not less than five days prior to the meeting or any adjournment, rescheduling or postponement thereof, with reasonable documentary evidence (as determined by the secretary of NewCo in good faith) that such shareholder and/or beneficial owner complied with such representations; • if a shareholder providing notice and/or beneficial owner that intends to solicit proxies in support of director nominees other than NewCo’s nominees no longer intends to solicit proxies in accordance with its representation pursuant to the above requirements, such shareholder and/or beneficial owner will inform NewCo of this change by delivering a writing to the secretary of NewCo no later than two business days after the occurrence of such change; and • if a shareholder and/or beneficial owner providing such notice is not in compliance with such representations and the NewCo Articles, no action will be taken on such nomination and such nominee will be deemed disqualified, notwithstanding that proxies in respect of such nominee may have been received by NewCo. If at a general meeting of NewCo, the number of directors approved to be appointed will exceed the maximum number of directors set out in the NewCo Articles, the first 20 directors approved to be appointed at the general meeting will be so appointed and no further directors will be appointed at such meeting. |
Election of Directors | |||
AGA | | | NewCo |
meeting. | | | As a public company, NewCo may not appoint more than one person as a director by a single resolution at a general meeting of its shareholders, unless a resolution approving the motion has first been unanimously agreed by the meeting – this is intended to ensure the meeting is free to reject individual candidates, so the meeting cannot be presented with only the option of electing a team to the NewCo Board. English law permits companies to provide for terms of different lengths for its directors. Any director’s employment agreement with a guaranteed term of more than two years must be subject to the prior approval of shareholders by way of ordinary resolution at a general meeting. Pursuant to the NewCo Articles, at every annual general meeting, all the directors at the date of the notice convening the annual general meeting will retire from office and may offer themselves for reappointment by the shareholders. Under English law: • a person may not be appointed as a director unless they are at least 16 years of age at the time the appointment takes effect; • at least one director of each company must be a natural person; • except with the leave of the court, a person is prohibited from acting as a director of a company if: • the person is an undischarged bankrupt; • a moratorium period under a debt relief order applies in relation to the person; • a bankruptcy restrictions order or undertaking, or a debt relief restrictions order or undertaking, is in force in respect of the person; or • the person is subject to an order made under section 429(2)(b) (disabilities on revocation of administration order against an individual) of the U.K. Insolvency Act 1986; and |
Election of Directors | |||
AGA | | | NewCo |
| | | • a court may or, in some cases, must make an order disqualifying a person from acting as a director, including without limitation: • where they are convicted of an indictable offence (whether on indictment or summarily) in connection with the promotion, formation, management, liquidation or striking off of a company, with the receivership of a company's property or with their being an administrative receiver of a company; • where it appears they have been persistently in default in relation to requirements for any return, account or other document to be filed with, delivered or sent, or notice of any matter to be given, to the U.K. Registrar of Companies; and • where they have been convicted of a relevant foreign offence, including offences committed in connection with the promotion, formation or management of a company overseas which corresponds to an indictable offence under the law of England and Wales or Scotland. | |
Removal of Directors | |||
AGA | | | NewCo |
The AGA shareholders can remove a director by ordinary resolution adopted at a shareholders’ meeting by the persons entitled to exercise voting rights in an election of that director. Before the AGA shareholders may consider such resolution: • the AGA director concerned must be given notice of the meeting and the resolution; and • the AGA director must be afforded a reasonable opportunity to make a presentation, in person or through a representative, to the meeting before the resolution is put to a vote. The AGA Board may resolve to remove a director if the AGA board has alleged that a director: • has become ineligible or disqualified in terms of the South African Companies Act; • has become incapacitated to the extent that the director is unable to perform the functions of a director, and is unlikely to regain that capacity within a reasonable time; or | | | Under English law, irrespective of any provisions in the NewCo Articles to the contrary, the NewCo shareholders may remove any of the NewCo directors without cause by ordinary resolution at a meeting, provided notice of the proposal is given to NewCo by the NewCo shareholder making such proposal at least 28 days prior to the general meeting at which such proposal is to be put to NewCo shareholders. A NewCo director subject to the procedure has the right to (i) make certain written representations as to why he should not be removed (which NewCo must then circulate to its shareholders) and (ii) be heard orally at the general meeting. Additionally, under the Articles, the NewCo shareholders may remove any of the NewCo directors without cause by special resolution at a meeting, in which case the aforementioned procedural requirements shall not apply. Further, under the NewCo Articles, any NewCo director automatically stops being a director if: • the NewCo director gives NewCo written notice of resignation and the resignation becomes effective; |
Removal of Directors | |||
AGA | | | NewCo |
• has neglected or been derelict in the performance of the functions of director. The AGA MOI provides that a director will no longer act as a director of AGA if: • he becomes prohibited or disqualified by the South African Companies Act from acting as an AGA director, ceases to be an AGA director by virtue of any provision of the South African Companies Act or is removed from office pursuant to the AGA MOI; • he is absent from meetings of the AGA directors for 6 consecutive months without the permission of the AGA Board (whether or not an alternate director appointed by him attends) and the AGA directors have resolved that his office be vacated; or • notice is given to terminate his contract of employment or engagement with AGA where he is in breach of such contract. If an AGA director stops being a AGA director for any reason, that person will also automatically cease to be a member of any committee or sub-committee of the AGA Board. | | | • the NewCo director gives NewCo a written notice in which the NewCo director offers to resign, the NewCo Board decides to accept this offer and the resignation becomes effective; • all of the other NewCo directors (who must comprise at least three people) pass a resolution or sign a written notice removing the NewCo director as a director; • the NewCo director is or has been suffering from mental or physical ill health and the NewCo directors pass a resolution removing the NewCo director from office; • the NewCo director has missed NewCo directors’ meetings (whether or not an alternate director appointed by the absent NewCo director attends those meetings) for a continuous period of six months without permission from the NewCo directors and the NewCo directors pass a resolution removing the NewCo director from office; • a bankruptcy order is made against the NewCo director or the NewCo director makes any arrangement or composition with their creditors generally; • the NewCo director is prohibited from being a NewCo director under any statute (and any orders, regulations or other subordinate legislation made under it) applying to NewCo; or • the NewCo director ceases to be a NewCo director under any statute (and any orders, regulations or other subordinate legislation made under it) applying to NewCo, or is removed from office under the NewCo Articles. If a NewCo director stops being a NewCo director for any reason, that person will also automatically cease to be a member of any committee or sub-committee of the NewCo Board. |
Filling of Vacancies | |||
AGA | | | NewCo |
The AGA MOI provides that the AGA Board may appoint any person who satisfies the requirements for the election as a director to fill any vacancy and serve as a director on a temporary basis until the vacancy is filled. If the number of directors falls below the minimum provided for in the AGA MOI, the remaining directors must, as soon as possible (but not later than three months from the date that the number of directors falls below the minimum), fill the vacancies or call a general meeting for that purpose. It is required by the JSE Listings Requirements, that: • the appointment of a director, to fill a casual vacancy or as an addition to the board, be confirmed by the shareholders at the next annual general meeting; and • a failure by AGA to have the minimum number of directors prescribed in the AGA MOI during the aforesaid three-month period, does not limit or negate the authority of the AGA Board or invalidate anything done by the AGA Board or AGA. After the expiry of the three-month period, the remaining directors will only be permitted to act for the purpose of filling vacancies or calling general meetings of shareholders. The AGA MOI provides that one-third of the directors must retire at each of AGA’s annual general meetings and that a retiring director will be eligible for re-election but no person, other than a director retiring at the meeting, will, unless recommended by the directors, be eligible for election to the office of a director at any AGA shareholders meeting. | | | The NewCo Articles provide that at the general meeting at which a director retires, NewCo shareholders can pass an ordinary resolution to re-appoint the director or to appoint some other eligible person in place of the director. The only people who can be appointed as directors at a general meeting are (i) the directors retiring at the meeting; (ii) anyone recommended by the directors; and (iii) anyone nominated by a shareholder in the manner prescribed in the NewCo Articles. Further, pursuant to the NewCo Articles, the NewCo Board may also appoint directors so as to temporarily fill any vacancies on the NewCo Board, although such appointment must then be confirmed by NewCo shareholders at the next general meeting or annual general meeting. The NewCo Articles provide that every annual general meeting all the directors at the date of the notice convening the annual general meeting must retire from office and may offer themselves for reappointment by the shareholders. |
Board Meetings | |||
Pursuant to the South African Companies Act, unless the memorandum of incorporation of a company provides otherwise, a majority of the directors must be present at a meeting before a vote may be called at the meeting. The AGA MOI does not provide for any other quorum requirements for AGA Board meetings. A majority of the votes cast on a resolution at an AGA Board meeting is sufficient to approve that resolution. If votes are equal, the chair will have a casting vote if the chair did not initially have or cast a vote. | | | Pursuant to the NewCo Articles, if no other quorum is fixed by the NewCo Board, the majority of the directors then appointed are a quorum for a NewCo Board meeting. If a director ceases to be a director at a NewCo Board meeting, that person can continue to be present and to act as a director and be counted in the quorum until the end of the meeting if no other director objects and if otherwise a quorum of directors would not be present. Matters to be decided at a NewCo Board meeting will be decided by a majority of the votes cast. If votes are equal, the chair of the meeting has a second, casting vote. |
Board Remuneration | |||
AGA | | | NewCo |
In accordance with the South African Companies Act, the AGA MOI provides that the directors are entitled to such remuneration for their services as directors as AGA shareholders may approve by special resolution in a general meeting or annual general meeting within the previous two years of the date of payment of such remuneration. A director may be employed in any other capacity at AGA or as a director or employee of any AGA controlled subsidiary and, in such event, his or her appointment and remuneration in respect of such other office must be determined by a disinterested quorum of directors. The directors and alternate directors may be paid all their reasonable traveling and other expenses, properly and necessarily incurred by them in and about the business of AGA, and in attending meetings of the directors or of the AGA Board or statutory committees, as may further be set out in the policies of the AGA Board. If any director is required to perform extra services, to reside abroad or be specifically occupied about AGA’s business, he or she may be entitled to receive such remuneration as is determined by a disinterested quorum of directors, which may be either in addition to, or in substitution for, any other remuneration. | | | NewCo is required to put in place a directors’ remuneration policy containing details of the components of the remuneration payments that may be made to NewCo’s directors (executive and non-executive). NewCo must submit its directors’ remuneration policy to a binding shareholder vote every three years. Subject to the terms of the remuneration policy, the directors or any committee authorized by the directors may decide how much to pay each director by way of fees. See “AngloGold Ashanti (UK) Limited—Remuneration of Directors and Management of NewCo”. NewCo can pay the reasonable travel, hotel and incidental expenses of each director incurred in attending and returning from general meetings, meetings of the directors or committees of the directors, or any other meetings which the director is entitled to attend as a director. NewCo will pay all other expenses properly and reasonably incurred by each director in connection with NewCo’s business or in the performance of their duties as directors. |
Fiduciary Duties | |||
AGA | | | NewCo |
Under South African common law, directors are required to comply with certain fiduciary obligations that they owe to AGA and to exercise proper skill and diligence in discharging their responsibilities. In this regard, an AGA director owes to AGA a fiduciary duty to exercise his or her powers in what he or she honestly believes is in the best interest of AGA. Such fiduciary duties include: • to act in good faith; • to exercise his or her powers for a proper purpose; • not to fetter his or her discretion; • to avoid conflicts of interest; • not to use corporate property, information or opportunities for personal profit; • to exercise care and skill; and | | | English law imposes certain obligations on NewCo’s directors. In addition to certain common law and equitable principles, there are statutory directors’ duties owed to the company, including seven codified duties as follows: • to act in a way they consider, in good faith, would be most likely to promote the success of NewCo for the benefit of the NewCo shareholders as a whole; • to act in accordance with the NewCo Articles and exercise powers only for the purposes for which they are conferred; • to exercise independent judgment; • to exercise reasonable care, skill and diligence – this requirement is assessed both subjectively (i.e. was the director’s conduct that of a reasonably diligent person who possesses the knowledge and experience of that particular director) and |
Fiduciary Duties | |||
AGA | | | NewCo |
• to disclose or account for secret profits. In addition to these common law duties, directors of South African companies are required to comply with section 76 of the South African Companies Act which regulates the standards of directors’ conduct. In terms of this section, a director must: • not use the position of director, or any information obtained whilst acting as such to gain any advantage or knowingly cause harm to the company; and • communicate to the AGA Board at the earliest opportunity any information that comes to the director’s attention unless the director reasonably believes that the information is immaterial to the company or generally available to the public or unless the director is bound not to disclose that information by legal or ethical confidentiality. Further, a director must exercise the powers and functions of a director: • in good faith and for proper purpose; • in the best interest of the company; and • with the degree of care, skill and diligence that may reasonably be expected of a person carrying out the same functions in relation to the company as those carried on by the director and having the general knowledge, skill and expertise of that director. | | | objectively (i.e. was the director’s conduct that of a reasonably diligent person possessing the knowledge and experience that a director holding that position should possess); • to act bona fide in what they consider is in the interests of the company as a whole, bearing in mind a number of different matters; • not to accept benefits from third parties that are conferred by reason of them being, or doing or not doing anything, as a director; and • to declare an interest in a proposed transaction with the company. |
Dividends | |||
AGA | | | NewCo |
The holders of AGA Ordinary Shares are entitled to receive any distribution in accordance with the AGA shareholders’ voting power. Under South African law, AGA must not make any proposed distribution unless: • the distribution – • is pursuant to an existing legal obligation of AGA, or a court order; or • the AGA Board, by resolution, has authorized the distribution; • it reasonably appears that AGA will satisfy a statutory solvency and liquidity test immediately after completing the proposed distribution; and • the AGA Board, by resolution, has acknowledged that is has applied the statutory solvency and liquidity test, and reasonably concluded that AGA will satisfy the solvency and liquidity test immediately after completing the proposed distribution. Once the AGA Board has authorized the distribution, the dividend must be paid within 120 business days after the AGA Board has acknowledged that AGA will satisfy the solvency and liquidity test. If the 120 business day period lapses, and AGA has not yet paid the dividend to AGA shareholders, the AGA Board must reconsider the solvency and liquidity test with respect to the remaining dividend to be paid. AGA cannot pay the dividend to AGA shareholders unless the AGA Board passes another resolution. The AGA MOI states that any distribution, interest or other sum payable in cash to an AGA shareholder of a security may be paid by cheque or warrant sent through the post, addressed to the AGA shareholder at his registered address, or addressed to such person and at such address as the AGA shareholder may direct in writing, or by electronic funds transfer into the bank account nominated by the AGA shareholder. The directors may make such regulation as they may think fit in regard to the payment of distributions to AGA shareholders who have their address outside of South Africa. Any payments to AGA shareholders whose registered address is outside South Africa, or who have given written instruction requesting payment at an address outside South Africa, may be paid in such currency other than the currency of South Africa as may be stipulated by the AGA Board. The AGA Board | | | Under English law, before NewCo can lawfully make a distribution or dividend, it must first ensure it has sufficient distributable reserves (on a non-consolidated basis). The basic rule is that NewCo’s profits available for distribution are its accumulated realized profits (which have not been previously utilized by distribution or capitalization) less its accumulated realized losses (which have not been previously written off in a reduction or reorganization of capital duly made). Dividends received by NewCo from its subsidiaries would contribute to its accumulated realized profits. Further, NewCo is also subject to certain capital maintenance requirements to ensure the net worth of NewCo is at least equal to the amount of NewCo’s capital. As a public limited company, NewCo can only make a distribution: (i) if, at the time that the distribution is made, the amount of its net assets (that is, the total excess of assets over liabilities) is not less than the total of its called up share capital and distributable reserves; and (ii) if and to the extent that the distribution itself, at the time that it is made, does not reduce the amount of NewCo’s net assets to less than that total. Pursuant to the NewCo Articles, NewCo shareholders can declare dividends in accordance with the rights of the NewCo shareholders by passing an ordinary resolution. No such dividend can exceed the amount recommended by the NewCo Board. If the directors consider that the financial position of NewCo justifies such payments, they may pay the fixed or other dividends on any class of shares (including the NewCo Ordinary Shares) on the dates prescribed for the payment of those dividends, and may also pay interim dividends on shares of any class (including the NewCo Ordinary Shares) on any dates and for any periods which they decide. If the directors act in good faith, they will not be liable for any loss that any NewCo shareholders may suffer because a lawful dividend has been paid on their shares (including the NewCo Ordinary Shares) which rank equally with or behind their shares. The NewCo Board may elect to pay dividends solely by means of electronic transfer to an account with a bank or other financial institution named in a written instruction from the shareholder entitled to receive the payment, or such other method as requested in writing by the shareholder (or all joint shareholders) and agreed with NewCo, and which method may be |
Dividends | |||
AGA | | | NewCo |
may also stipulate the date upon which the currency of South Africa will be converted into such other currency. Any distribution for example, paying a dividend, regarding shares that have been issued but are held in trust: • must be paid or credited by AGA to the subscriber, if the instrument has become negotiable by AGA or the subscriber has fulfilled its obligations under the agreement; or • can be credited against the remaining value at the time of any services which are still to be performed by the subscriber, any future payment which is due or the benefits which are still to be received by AGA. Unless the rights attaching to the relevant shares or the terms of issue of the relevant shares state otherwise, no dividend or other sum payable by AGA on or in respect of its shares carries a right to interest from AGA. Dividends and other sums payable on or in respect of the AGA Ordinary Shares do not bear interest. The South African Companies Act provides for three forms of distributions: • AGA transferring its money or other property, other than its own shares, to or for the benefit of one or more AGA shareholders or to the holder of a beneficial interest in shares of AGA or another company within the AGA Group (for example, paying a dividend to a shareholder); • AGA incurring a debt or obligation for the benefit of a shareholder of AGA or of another company within the AGA Group; and • AGA’s forgiveness or waiver of a debt or obligation owed to it by one or more shareholders of AGA or of another company within the AGA Group. As a company incorporated and registered in the Republic of South Africa with its primary listing on the JSE, AGA is required to declare dividends in South African rands. Dividends are paid in South African rands, Australian dollars, Ghanaian cedis and British pounds. Registered holders of AGA ADSs are paid | | | different for different shareholders or groups of shareholders. Amounts due to shareholders who do not specify the details necessary in order to make payment of such amounts to them will be treated as unclaimed. The NewCo Board may select a date as the record date by reference to which a dividend will be paid or a distribution, allotment or issue made, and that date may be before the date on which the dividend, distribution, allotment or issue is to be paid or made, including before any relevant resolution was passed. All dividends on the NewCo Ordinary Shares will be declared and paid in proportions based on the amounts paid up on such shares during any period for which the dividend is paid. NewCo may issue shares that rank prior to the NewCo Ordinary Shares in respect of payment of dividends. Unless the rights attaching to the relevant shares or the terms of issue of the relevant shares state otherwise, no dividend or other sum payable by NewCo on or in respect of its shares carries a right to interest from NewCo. Dividends and other sums payable on or in respect of the NewCo Ordinary Shares will not bear interest. Unless the rights attaching to or terms of issue of the relevant shares say otherwise, a dividend or any other money payable in respect of a share may be paid in whatever currency the NewCo Board decides. Dividends and other money payable in respect of the NewCo Ordinary Shares may be paid in any currency selected by the NewCo Board, although NewCo is expected to pay dividends and other distributions, if any, in U.S. dollars and South African rand. The NewCo Board may decide the rate of exchange for any currency conversions which may be required, as well as how any costs involved (in relation to the currency of any dividend) are to be met. If a NewCo shareholder owes NewCo any money for calls on shares or money in any other way relating to their shares, the NewCo Board can deduct any of this money from any dividend or other money payable to the NewCo shareholder on or in respect of any share held by the NewCo shareholder. Money deducted in this way can be used to pay amounts owed to NewCo. Where any dividends or other amounts payable on a NewCo Ordinary Share have not been claimed, the NewCo Board can invest them or use them in any |
Dividends | |||
AGA | | | NewCo |
dividends in United States dollars by The Bank of New York Mellon as Depositary, in accordance with the Deposit Agreement. All dividends remaining unclaimed for a period of not less than three years from the date on which they became payable, may, by a resolution of the directors, become forfeited for the benefit of AGA. The South African Companies Act provides that the AGA Board may, by resolution, approve the issuing of any authorized shares of AGA, as capitalization shares, on a pro rata basis to the AGA shareholders. When resolving to award a capitalization share, the AGA Board may at the same time resolve to permit any AGA shareholder entitled to receive such an award to elect instead to receive a cash payment, at a value determined by the AGA Board. The AGA Board may not resolve to offer a cash payment in lieu of awarding a capitalization share, unless the AGA Board: • has considered the solvency and liquidity test on the assumption that every such AGA shareholder would elect to receive cash; and • is satisfied that AGA would satisfy the solvency and liquidity test immediately upon the completion of the distribution. | | | other way for NewCo’s benefit until they are claimed. NewCo will not be a trustee of the money and will not be liable to pay interest on it. If a dividend or other money has not been claimed for six years after being declared or becoming due for payment, it will be forfeited and go back to NewCo unless the NewCo Board decides otherwise. NewCo shareholders may, upon the recommendation of the NewCo Board and by ordinary resolution, direct and the directors can decide (without any shareholder approval requirement) that the payment of all or any part of an interim dividend be satisfied by the distribution of specific assets and, where any difficulty arises in regard to the distribution, the NewCo Board may settle the same as they think fit. Once a dividend has been paid to a shareholder, NewCo’s obligation in respect of such dividend will be discharged and no person may bring a claim against NewCo in respect of such dividend. The NewCo Board can offer holders of the NewCo Ordinary Shares (excluding any shareholder holding shares as treasury shares) the right to choose to receive extra NewCo Ordinary Shares, which are credited as fully paid up, instead of some or all of their cash dividend. Before the NewCo Board can do this, the NewCo shareholders must have passed an ordinary resolution authorizing the NewCo Board to make this offer. The ordinary resolution can apply to some or all of a particular dividend or dividends or it can apply to some or all of the dividends, which may be declared or paid in a specified period. The specified period must not end later than the third anniversary of the date on which the ordinary resolution is passed. |
Liquidation | |||
AGA | | | NewCo |
The liquidation of a South African company is governed by two statutes, (i) the Companies Act No. 61 of 1973, which act has been repealed save for certain provisions, including the provisions insofar as it relates to liquidations, which are retained pursuant to schedule 5 of the South African Companies Act, and (ii) the South African Companies Act itself. Both statutes deal with the liquidation of companies whereby the assets of the liquidated company are realized for the benefit of creditors or shareholders and the company is dissolved. A liquidation may be voluntary, where it is initiated by shareholders, or compulsory, where it is typically initiated by creditors and approved by the court. There are two types of voluntary liquidation under South African law: a shareholders’ voluntary liquidation and a creditors’ voluntary liquidation. Each is instigated by a special resolution of the shareholders, but a shareholders’ voluntary liquidation applies to solvent companies, whereas a creditors’ voluntary liquidation applies to insolvent companies. Compulsory liquidation under South African law occurs when a company is either factually insolvent or commercially insolvent (i.e., where the company, by its conduct, is deemed to be commercially insolvent) or where it would be just and equitable to wind up the company. Several consequences flow from a company being placed into liquidation, including (i) the creation of a concursus creditorum (where the creditors’ position is crystallized, together with their ranking in the liquidated company’s estate); (ii) the directors being functus officio (meaning they are no longer empowered or authorized to run the company, while the liquidator is appointed to take control, and pending the liquidator’s appointment, the Master of the High Court is tasked with the control of the company); (iii) all litigation against the company being suspended and (iv) employee contracts being suspended pending a decision of the liquidator to either terminate or retain certain employees (on an ad hoc basis). | | | The liquidation of an English company is a statutory process governed by the U.K. Insolvency Act 1986, where assets of the company are realized for the benefit of creditors or shareholders and the company is dissolved. Liquidation may be voluntary, where it is initiated by shareholders, or compulsory, where it is typically initiated by creditors and approved by the court. There are two types of voluntary liquidation under English law: a shareholders’ voluntary liquidation and a creditors’ voluntary liquidation. Each is instigated by a special resolution of the shareholders and cannot be initiated by creditors directly. The essential difference is that a shareholders’ voluntary liquidation applies to solvent companies and a creditors’ voluntary liquidation applies to insolvent companies. Accordingly, voluntary liquidation is not always an insolvency procedure under English law. If NewCo is in liquidation, NewCo’s liquidator may, amongst other things, divide among shareholders (excluding holders of treasury shares) in specie or in kind the whole or any part of NewCo’s assets (whether or not the assets consist of property of one kind or consist of properties of different kinds and the liquidator may for such purpose set such value as the liquidator deems fair upon any one or more class or classes of property and may determine how such division will be carried out as between the holders of NewCo Ordinary Shares or different classes of NewCo shareholders), or vest all or any part of such assets in trustees upon such trusts for the benefit of NewCo shareholders as the liquidator determines (and the liquidation of NewCo may thereby be closed and NewCo thereby dissolved), but no NewCo shareholder will be compelled to accept any shares or other assets upon which there is any liability or potential liability. Upon a winding-up of NewCo, the holders of the NewCo Ordinary Shares will be entitled to the whole of any surplus assets remaining after NewCo’s liabilities have been satisfied and will share equally on a share for share basis in NewCo’s assets remaining for distribution to the holders of the NewCo Ordinary Shares. |
Repurchase of Share Capital | |||
AGA | | | NewCo |
The South African Companies Act provides that AGA may repurchase its shares subject to the following requirements: • the AGA Board determines that AGA acquire its own shares; • the decision to repurchase satisfies the requirements of a distribution; • if AGA is repurchasing shares from a director of AGA or prescribed officer of AGA (or a related person), a decision of the AGA Board to repurchase the shares must be approved by a special resolution of the AGA shareholders; • if the repurchase, either considered alone or in conjunction with other transactions in an integrated series of transactions, involves the acquisition of AGA of more than five per cent. (5%) of AGA’s issued shares of any particular class, then the provisions of the South African Companies Act which govern schemes of arrangement, and other Affected Transactions, must be complied with; and • if the repurchaser is a subsidiary acquiring shares in its holding company, it must comply with the following: • the subsidiary may not hold more than 10 per cent. (10%), in aggregate, of the number of the issued shares of any class of shares in its holding company; and • no voting rights attached to those shares may be exercised while the shares are held by the subsidiary, and it remains a subsidiary of the company whose shares it holds. A repurchase by JSE listed companies must be approved by a special resolution of the AGA shareholders, unless it is a pro rata repurchase from all AGA shareholders. The repurchase of shares must: (i) be on terms that are approved by shareholders in a general meeting convened in respect of that particular repurchase (specific repurchase authority), which will be valid until such time as the approval is amended or revoked by a special resolution; or (ii) be generally approved by shareholders by the giving of a renewable mandate, which will be valid until the company’s next annual | | | NewCo may purchase its own shares out of distributable profits or the proceeds of a fresh issue of shares made by it for the purposes of financing such purchase. However, NewCo may not purchase its own shares if, as a result of the purchase, there would no longer be any shares of NewCo left in issue other than redeemable shares and/or shares held as treasury shares. Shares must be fully paid in order to be repurchased. NewCo will require shareholder authority in order to purchase its own shares, which will be periodically sought at each annual general meeting. Such shareholder authority must specify the maximum number of NewCo shares that may be repurchased pursuant to it and the minimum and maximum price that may be paid for such shares. Additionally, NewCo may only purchase its own shares otherwise than on a recognized investment exchange (none of the NYSE, JSE, A2X or GhSE is a recognized investment exchange) if it does so pursuant to a contract authorized by an ordinary resolution of its shareholders before the purchase takes place. The shareholder authority will not be effective if any NewCo shareholder(s) from whom NewCo proposes to purchase its own shares votes on the resolution, and the resolution would not have passed if they had not so voted. The resolution authorizing the purchase must specify a date on which the authority to purchase will expire, such date not being later than five years after the passing of the relevant shareholder resolution. Any shares that have been repurchased may be held as treasury shares if the repurchase was made out of distributable profits, or, if not so held, must be cancelled immediately upon the completion of the purchase, thereby reducing the amount of NewCo’s issued share capital. |
Repurchase of Share Capital | |||
AGA | | | NewCo |
general meeting or for 15 months from the date of the resolution, whichever period is shorter, to the directors of the company to repurchase its shares subject to the requirements of the JSE and to any other restrictions set out in the mandate (general repurchase authority). The general repurchase by a company of its own shares may not, in the aggregate in any one financial year, exceed 20 per cent. (20%) of that company’s issued share capital of that class. AGA may not, however, acquire its own shares if, as a result, there would no longer be any shares of AGA in issue other than: • shares held by one or more subsidiaries of AGA; or • convertible or redeemable shares. | | | |
Reduction of Share Capital | |||
AGA | | | NewCo |
AGA is authorized to issue the shares specified in the AGA MOI and all such shares are required to be issued as fully paid up in accordance with the applicable approval and/or other requirements of the South African Companies Act and the JSE Listings Requirements. The directors are authorized, subject to any requirements of the JSE Listings Requirements, the South African Companies Act and the AGA MOI, to increase or decrease the number of authorized shares of any class of shares, reclassify any shares that have been authorized but not issued, classify any unclassified shares that have been authorized but not issued, and determine the preferences, rights, limitations or other terms of any class of authorized shares or amend any preferences, rights, limitations or other terms as determined. However, such capital amendments require an amendment to be made to the AGA MOI. The South African Companies Act and the JSE Listings Requirements currently do not allow the AGA MOI to be amended to give effect to such capital amendments without the approval of holders of AGA Ordinary Shares by special resolution. Pursuant to South African company law, South African companies are no longer required to observe capital maintenance requirements such as procedural requirements to effect a reduction of capital. Instead, South African companies must apply a solvency and liquidity test as prerequisite to effect, among other things, all distributions (e.g., dividends, the acquisition by the company of its shares, etc.); and the provision of financial assistance (e.g., the provision of financial assistance for the subscription of securities, and the provision of loans or other financial assistance to directors or related and inter-related companies). | | | The U.K. Companies Act contains the procedural requirements for a reduction of capital. The reduction of capital must be approved by NewCo shareholders by special resolution, and must be approved by a court. The decision to approve the reduction is at the court’s discretion, and it will consider whether (i) the reduction is for a discernible purpose, (ii) the reduction is fair and equitable to shareholders, (iii) necessary formalities have been complied with and the reasons for and implications of the reduction has been properly explained to NewCo shareholders and (iv) NewCo’s creditors are adequately safeguarded. Subject to these and certain other requirements under English law, NewCo may reduce its share capital, its capital redemption reserve and any share premium amount. |
Limitation of Directors’ Liability / Indemnification of Officers and Directors | |||
AGA | | | NewCo |
The South African Companies Act regulates the liability of directors and prescribed officers. Specifically, a director of AGA may be held liable for breaching: • his fiduciary duties; • the South African Companies Act; or • the AGA MOI. The South African Companies Act provides that any provision of an agreement, the AGA MOI or the rules of AGA, or a resolution adopted by the AGA Board, or an ordinary or special resolution adopted by the AGA Shareholders (whether express or implied) is void to the extent that it directly or indirectly purports to: • relieve a director of – • declaring his financial interest or the prescribed standards of directors’ conduct; or • liability for breaching – • fiduciary duties; • the South African Companies Act; or • the AGA MOI. The prohibition described above will not be construed as prohibiting a company from indemnifying a director in respect of any liability incurred by that person in defending any proceedings against them (in their capacity as director), in which judgment is given in their favor or in which they are acquitted or in respect of any such proceedings which are abandoned. The AGA MOI provides that, subject to the South African Companies Act, AGA will indemnify its directors, prescribed officers, secretaries, the members of its board committees and the members of its audit committee (collectively, “Relevant Officers”) against all costs, charges, losses, expenses and liability that they may incur or attaching to them in connection with (i) any negligence, default, breach of duty or breach of trust by such Relevant Officers in relation to AGA (or any member of the AGA Group) other than any liability to AGA (or any member of the AGA Group); and (ii) other liability incurred by or attaching to them in relation to or in connection with their duties, powers | | | English law does not permit NewCo to exempt any director from any liability arising from negligence, default, breach of duty or breach of trust in relation to NewCo, but NewCo is permitted to purchase and maintain insurance for its directors in this respect (see below). NewCo’s shareholders can ratify a director’s conduct amounting to negligence, default, breach of duty or breach of trust in relation to NewCo. In general, such ratification must be authorized by an ordinary resolution of NewCo’s shareholders. Subject to certain exceptions, English law does not permit NewCo to indemnify its directors against liability in connection with any negligence, default, breach of duty or breach of trust by them in relation to NewCo. These limited exceptions allow NewCo to: • purchase and maintain insurance for its directors and officers (and directors of an “associated company” – i.e. a company that is a parent, subsidiary or sister company of NewCo) against any liability attaching in connection with any negligence, default, breach of duty or breach of trust owed to NewCo or the associated company. Director and officer insurance generally covers costs incurred in defending allegations and compensatory damages that are awarded. However, director and officer insurance usually will not cover damages awarded in relation to criminal acts, intentional malfeasance or other forms of dishonesty, regulatory offences, or other excluded matters such as environmental liabilities. In relation to these matters, director and officer insurance generally only covers defence costs, subject to the obligation of the director or officer to repay the costs if any allegation of criminality, dishonesty or intentional malfeasance is later on admitted or found to be true; • provide a qualifying third party indemnity provision (a “QTPIP”). This permits NewCo to indemnify its directors (and directors of an associated company) in respect of proceedings brought by third parties (covering both legal costs and the amount of any adverse judgment), except for: (i) legal costs of an unsuccessful defence of criminal proceedings, or civil proceedings brought by NewCo itself or an associated company, or the legal costs incurred in connection with certain specified applications by the director for relief where the court refuses to grant relief; (ii) fines imposed in criminal proceedings; and (iii) penalties |
Limitation of Directors’ Liability / Indemnification of Officers and Directors | |||
AGA | | | NewCo |
or office, including in connection with the activities of AGA if they are trustees of an occupational pension scheme. The South African Companies Act states that AGA cannot, however, indemnify a director including any former director, alternate director, prescribed officer, or any person who is a member of a committee of the board of such company or the audit committee of such company (each a “director” for the purposes of section 78 of the South African Companies Act), in respect of any liability for any loss, damages or costs sustained by AGA as a direct or indirect consequence of: • the director having acted in the name of AGA, signed anything on behalf of AGA, or purported to bind AGA or authorize the taking of any action by or on behalf of AGA, despite knowing that he or she lacked the authority to do so; • the director having acquiesced in the carrying on of AGA's business despite knowing that it was being conducted recklessly, with gross negligence, with intent to defraud any person or for any fraudulent purposes; • the director having been a party to an act or omission by AGA despite knowing that the act or omission was calculated to defraud a creditor, employee or shareholder of AGA, or had another fraudulent purpose; • willful misconduct or willful breach of trust on the part of the director; or • a fine that may be imposed on a director of AGA, or on a director of a related company, as a consequence of that director having been convicted of an offence, unless the conviction was based on strict liability or a fine imposed as a result of being convicted for an offence unless the conviction was based on strict liability. A South African company may claim restitution from any director for any money paid directly or indirectly by the company to or on behalf of such director in any manner inconsistent with the South African Companies Act. AGA can indemnify or advance expenses to a director defending litigation proceedings brought against the director arising out of his service to AGA and can also purchase insurance to protect the director and AGA | | | imposed by regulatory bodies. NewCo can therefore indemnify directors against certain third-party actions such as class actions or actions following mergers or acquisitions or share issues; • provide a QTIP which permits NewCo to indemnify its directors (and directors of an “associated company” (i.e., a company that is a parent, subsidiary or sister company of NewCo)) in respect of proceedings brought by third parties (covering both legal costs and the amount of any adverse judgment), except for: (i) the legal costs of an unsuccessful defense of criminal proceedings or civil proceedings brought by NewCo itself or an associated company, or the legal costs incurred in connection with certain specified applications by the director for relief where the court refuses to grant the relief; (ii) fines imposed in criminal proceedings; and (iii) penalties imposed by regulatory bodies; • loan funds to a director to meet expenditure incurred in defending civil and criminal proceedings against him or her (even if the action is brought by NewCo itself), or expenditure incurred applying for certain specified relief, but subject to the requirement for the director or officer to reimburse NewCo if the defense is unsuccessful; and • provide a qualifying pension scheme indemnity provision (a “QPSIP”). A QPSIP permits NewCo to indemnify a director of a company (whether NewCo or an associated company) which is a trustee of an occupational pension scheme against liability incurred in connection with such company’s activities as a trustee of the scheme, except for: (i) legal costs of an unsuccessful defence in relation to criminal proceedings; (ii) fines imposed in criminal proceedings; and (iii) penalties imposed by regulatory bodies. Under the NewCo Articles, subject to the U.K. Companies Act, NewCo may do any or both of the following: • indemnify any director or former director of NewCo or of any associated company against any liability; and • purchase and maintain insurance against any liability for any director or former director of NewCo or of any associated company. |
Limitation of Directors’ Liability / Indemnification of Officers and Directors | |||
AGA | | | NewCo |
itself against any liability or expenses for which AGA is permitted by law to indemnify the director. The director can, in his personal capacity, purchase insurance for any indemnifiable event. Section 77 of the South African Companies Act allows a court to grant relief to any director or prescribed officer, other than for willful misconduct or willful breach of trust, if it appears to the court that the person concerned is or may be liable in respect of the negligence, default, breach of duty or breach of trust, but has acted honestly and reasonably, or having regard to all the circumstances of the case, including those connected with the appointment of the director, it would be fair to excuse the director. | | | A director or former director of NewCo or of any associated company will not be accountable to NewCo or the associated company for any benefit provided pursuant to the NewCo Articles. Anyone receiving such a benefit will not be disqualified from being or becoming a director of NewCo. In addition to the provisions in the NewCo Articles concerning the indemnification of its directors, it is common to set out the terms of any QTPIP and any QPSIP in the form of a deed of indemnity between NewCo and the relevant director which indemnifies the director against claims brought by third parties to the fullest extent permitted under English law. NewCo expects to enter into new deeds of indemnity with its directors in due course. NewCo shareholders are entitled under English law to request and inspect copies of qualifying indemnity provisions. |
Shareholder Votes on Certain Reorganizations | |||
AGA | | | NewCo |
Under the South African Companies Act, AGA may amend the AGA MOI (including any amendment as may be required for AGA to be recategorized as a different category of company (e.g. from a public company to a private company)), if a special resolution to amend it: • is proposed by – • the AGA Board; or • shareholders entitled to exercise at least 10 per cent. (10%) of the voting rights that may be exercised on such resolution; and • is adopted at a shareholders’ meeting. The South African Companies Act requires, amongst other things, the following additional matters also to be resolved by way of a special resolution: • the change of name of AGA; • authorization of the AGA Board to grant financial assistance; • approval of a decision of the AGA Board for the re-acquisition of shares; • approval of the remuneration of the directors; | | | English law requires, among other things, the following matters to be resolved by way of a special resolution of NewCo’s shareholders: (i) amendments to the NewCo Articles; (ii) any change of company name; (iii) certain amendments to NewCo’s share capital; (iv) any conversion of NewCo from one type of company or legal form to another (e.g. from a public company to a private company); (v) any decision by NewCo for NewCo to be wound up by the court; (vi) certain share buybacks and capital reductions, and (vii) the disapplication of pre-emptive rights. Where NewCo and its creditors or shareholders or a class of either of them propose a compromise or arrangement between NewCo and its creditors or its shareholders or a class of either of them (as applicable), the High Court of Justice in England and Wales may order a meeting of the creditors or class of creditors or of the NewCo shareholders or class of NewCo shareholders (as applicable) to be called in such manner as the court may direct. Any compromise or arrangement approved by a majority in number present and voting at the meeting representing 75 per cent. (75%) or more in value of the creditors or 75 per cent. (75%) or more of the voting rights of NewCo shareholders or class of either of them (as applicable), if sanctioned by the court, is binding upon NewCo and all the creditors, NewCo shareholders or members of the specific class of either of them (as applicable). Whether the capital of NewCo is to be treated as being a single class or divided into multiple classes of shares |
Shareholder Votes on Certain Reorganizations | |||
AGA | | | NewCo |
• approval of a fundamental transaction (i.e. disposals of major assets, mergers and amalgamations and schemes of arrangement); and • a decision to wind-up AGA. Under the South African Companies Act, the board, or a liquidator, of a company may propose an arrangement to compromise the financial obligations of the company with all of its creditors or a particular class of its creditors. Any proposal made by a company to compromise its financial obligations must be adopted by 75 per cent. (75%) of the creditors or 75 per cent. (75%) of the applicable class of creditors, as the case may be. If the proposal is adopted by the requisite majority of the creditors, the company may apply to court for an order approving the proposal and any order so issued by the court will be final and binding on all of the company’s creditors or its creditors within the applicable class of its creditors. Under the South African Companies Act, the board of a company may resolve that the company voluntarily commences business rescue proceedings and the board may place the company under supervision, if the board has reasonable grounds to believe that: (i) the company is financially distressed; and (ii) there appears to the board that there is a reasonable prospect of rescuing the company. If the board adopts and files a resolution to initiate business rescue proceedings in respect of the company, the company must notify all affected persons and must appoint a business rescue practitioner to supervise its business. Any shareholder, creditor or trade union representing employees of the company or the employees of the company who are not represented by a trade union (each an “Affected Person”) may apply to a court for an order setting aside the resolution adopted by the board on the grounds that: (i) there is no reasonable basis for believing that the company is financially distressed; (ii) there is no reasonable prospect of rescuing the company; or (iii) the company has failed to satisfy the procedural requirements to commence business rescue proceedings, as set out in the South African Companies Act. If the board fails to adopt a resolution to commence business rescue proceedings, an Affected Person may make an application to court to grant an order to commence business recuse proceedings in respect of the company. | | | is a matter to be determined by the court. The court may, in its discretion, treat a single class of shares as multiple classes, or multiple classes of shares as a single class, for the purposes of the above NewCo shareholder approval taking into account all relevant circumstances, which may include certain circumstances other than the rights attached to the shares themselves. |
Certain Provisions Relating to Business Combinations | |||
AGA | | | NewCo |
The JSE Listings Requirements categorize the transactions of JSE-listed companies by comparing the size of the transaction relative to the market capitalization of AGA, expressed as a percentage ratio. If the percentage ratio is 30 per cent. (30%) or more, AGA must issue a circular, complying with the category 1 transaction requirements, to AGA shareholders calling a general meeting of AGA shareholders to approve the transaction and any agreement effecting the transaction must be conditional upon such approval. If the percentage ratio is 5 per cent. (5%) or more but less than 30 per cent. (30%) of the market capitalization, a so-called category 2 notice must be issued to shareholders setting out certain prescribed information. If the percentage ratio is 30 per cent. (30%) or more or if the total consideration is not subject to any maximum, a so-called category 1 notice must be issued to shareholders setting out certain prescribed information. An acquisition by a listed company of a business, an unlisted company or assets where any percentage ratio is 100 per cent. (100%) or more, or which would result in a fundamental change in the business or in a change of the board of directors or voting control of a listed company, the transaction will qualify as a reverse takeover requiring a pre-listing statement to be issued to AGA shareholders. The South African Takeover Regulations (as contemplated in the South African Companies Act Regulations, 2011) (the “South African Takeover Regulations”) apply in respect of an Affected Transaction or an offer involving a profit company or its securities, if the company is a: • public company; • state-owned company; or • private company if – • the percentage of the issued securities of the company have been transferred (other than to related or inter-related persons), within a period of 24 months immediately before the date of a particular affected transaction or if the offer exceeds 10 per cent. (10%) of the issued securities; or • the AGA MOI expressly provides that the company and its securities are subject to the South African Takeover Regulations; | | | Under the U.K. Companies Act, NewCo does not need the approval of shareholders to acquire another company. Under English law, if another company proposes to acquire NewCo, the requirement for the NewCo shareholder approval depends on the method of acquisition. In addition to a typical contractual offer made by the bidder to the target’s shareholders for the target’s shares, a takeover (i.e. the acquisition of one company by another) of an English public limited company such as NewCo may also be carried out by a statutory scheme of arrangement (under Part 26 of the U.K. Companies Act) between the target and its shareholders. Part 26 schemes of arrangement are sometimes also used in certain types of compromises with creditors, amalgamations and capital reorganizations (see “—Shareholder Votes on Certain Reorganizations”). In the context of an acquisition or takeover, such arrangements require the approval of: (i) a majority in number of target shareholders, representing 75 per cent. (75%) or more in value of the share capital held by the shareholders or each applicable class of shareholders present and voting in person or by proxy at a special meeting convened by order of the court; and (ii) the English court. Generally, target shares held by or on behalf of the bidder would be treated as a separate class. This separate class arrangement does not however apply to a takeover offer conducted other than via a scheme of arrangement, such as a contractual takeover offer. Once approved, sanctioned and effective, all shareholders and creditors of the relevant class are bound by the terms of a scheme, and a dissenting shareholder would not have appraisal rights. Certain other specific requirements apply to schemes of reconstruction or amalgamation which are treated as mergers or divisions for the purposes of the U.K. Companies Act. For a scheme to be treated as a merger or division under the U.K. Companies Act, substantially the same persons must hold the shares of the old and the new companies (i.e. the two companies must have “mirror registers”) and the scheme company must be a company formed under the U.K. Companies Act. Under English law, a shareholder vote is not generally required to approve the sale, lease or exchange of all or substantially all of a company’s assets. |
Certain Provisions Relating to Business Combinations | |||
AGA | | | NewCo |
For purposes of the foregoing, an “Affected Transaction” is: • a transaction (or series of transactions) amounting to the disposal of all, or the greater part of, the assets or undertaking of the a regulated company (namely, a company to which the South African Takeover Regulations apply); • an amalgamation or merger if it involves at least one regulated company; • a scheme of arrangement between a regulated company and its shareholders; • the acquisition of, or announced intention to acquire, a beneficial interest in any voting securities of a regulated company; • the announced intention to acquire a beneficial interest in the remaining voting securities of a regulated company not already held by a person or persons acting in concert; • a mandatory offer. A mandatory offer is triggered in circumstances where a person, as a result of an acquisition, together with any other securities of the company already held by the person, is able to exercise at least 35 per cent. (35%) of all of the voting rights attached to the securities of the company; or • a compulsory acquisition. Depending on the size of the merger, an acquisition of control of a South African entity may require a filing with the South African Anti-trust authorities and be subject to their approval. The South African Companies Act provides that an offeror must: • comply with all reporting or approval requirements, whether set out in the South African Companies Act or in the South African Takeover Regulations (except to the extent that the South African Takeover Regulation Panel has granted the person an exemption from any such requirement); and • not give effect to an Affected Transaction unless the South African Takeover Regulation Panel has: (i) issued a compliance certificate with respect to | | | NewCo is not subject to the jurisdiction of the U.K. Takeover Code. However, NewCo has voluntarily incorporated certain provisions of the U.K. Takeover Code into the NewCo Articles (which provisions will apply for so long as the U.K. Takeover Code does not apply to NewCo) such that the following requirements will apply in the context of a takeover offer. Save for in certain circumstances permitted by the NewCo Articles (including any acquisition with the prior consent of NewCo), a person (other than a depositary, custodian or nominee) who, together with persons acting in concert with it, is interested in shares which (i) in the aggregate carry less than 30 per cent. (30%) of the voting rights of NewCo may not acquire any further interest which would result in it (together with persons acting in concert with it) holding 30 per cent. (30%) or more of the voting rights or (ii) in the aggregate carry less than 30 per cent. (30%) and not more than 50 per cent. (50%) of the voting rights may not acquire any further interest in any other shares in NewCo. If a person (other than a depositary, custodian or nominee) (i) acquires interest in NewCo’s shares that, when taken together with shares in which persons acting in concert with such person are interested, carry 30 per cent. (30%) or more of the voting rights of NewCo; or (ii) is, together with persons acting in concert with such person, interested in shares that in the aggregate carry not less than 30 per cent. (30%) and not more than 50 per cent. (50%) of the voting rights in NewCo and acquires additional interests in shares that increase their voting rights in NewCo, then in each case that person would be required (except in certain circumstances permitted by the NewCo Articles (including with the prior consent of NewCo)) to make a cash offer (or an offer with a cash alternative) for NewCo’s outstanding shares at a price that is not less than the highest price paid for any interests in the shares acquired by the offeror or its concert parties during the preceding 12 months, and otherwise in accordance with the requirements for such an offer set out in the NewCo Articles. Any voluntary offer for shares in NewCo will not be made on less favorable terms than the terms on which the offeror (or any person acting in concert with it) has acquired interests in shares in NewCo during the offer period, within the three month period prior to the commencement of the offer period, or at such earlier time if NewCo considers that there are circumstances |
Certain Provisions Relating to Business Combinations | |||
AGA | | | NewCo |
the transaction; or (ii) granted an exemption for that transaction. Under the South African Companies Act, a person must notify AGA within three business days after that person (i) acquires a beneficial interest in AGA shares such that, as a result of the acquisition, the person holds a beneficial interest in AGA shares amounting to five per cent. (5%), 10 per cent. (10%), 15 per cent. (15%) or any further whole multiple of five per cent. (5%) of AGA’s issued share capital or (ii) disposes of any beneficial interest in AGA shares such that, as a result of the disposition, the person no longer holds a beneficial interest in AGA shares amounting to a particular multiple of five per cent. (5%) of AGA’s issued share capital. Pursuant to the South African Companies Act a compulsory offer must be made, where as a result of a repurchase by AGA of AGA shares or an acquisition by a person acting alone, or two or more related or inter-related persons, or two or more persons acting in concert, of a beneficial interest in voting rights attached to issued AGA shares (together with any other AGA shares already held by such persons) they are able to exercise at least 35 per cent. (35%) of all of the voting rights attached to the issued AGA shares (“Prescribed Percentage”). Within one business day after the date of such acquisition, the person or persons in whom the Prescribed Percentage (or more) of the voting rights beneficially vests must give notice (in the manner prescribed under the South African Companies Act) to the holders of the remaining AGA shares, and include in that notice: (i) a statement that such person or persons are in a position to exercise at least the Prescribed Percentage of all the voting rights attached to AGA shares; and (ii) a statement that such person or persons are offering to acquire any remaining AGA shares on terms determined in accordance with South African Companies Act and the South African Takeover Regulations. Within one month after giving such notice, such person or persons must deliver a written offer for the remaining AGA shares (in compliance with the South African Takeover Regulations) to the holders of the remaining AGA shares. Under the South African Companies Act any partial offers for AGA shares must: • be made to all of the holders of AGA shares; | | | which render such a course necessary in order to ensure that all shareholders, and other persons with an interest in NewCo’s shares, are treated equally. The NewCo Articles also set out certain circumstances in which a voluntary offer must be made in cash (or with a cash alternative) and when it must be made in exchange for securities. Where the offeror (or any person acting in concert with the offeror) has acquired an interest in 10 per cent. (10%) or more of any class of shares in NewCo in exchange for securities in the three month period prior to the commencement of and during the offer period, equivalent securities should be offered to all other holders of shares of that class under the offer, except in the case of prior consent of NewCo. Any offer must be open for acceptance for a period of not less than 21 days and, if the offer becomes or is declared unconditional, the offer must remain open for not less than 14 days and the offeror must give at least 14 clear days’ notice before the offer is closed. Save with the prior consent of NewCo, it must be a condition of any offer which, if accepted in full, would result in the offeror holding shares carrying over 50 per cent. (50%) of the voting rights of NewCo that the offer will not become or be declared unconditional as to acceptances unless the offeror has acquired or agreed to acquire shares carrying over 50 per cent. (50%) of the voting rights. Save with the prior consent of NewCo, an offer must not be subject to any conditions or pre-conditions which depend solely on subjective judgments by the offeror or its directors or the fulfilment of which is in their hands and an offer must not be made subject to a condition or pre-condition relating to financing. Notwithstanding the foregoing, if an offer is for cash or includes a cash element and the offeror proposes to finance the cash consideration by an issue of new securities, the offer must be made subject to any condition required, as a matter of law or regulatory requirement, in order validly to issue such securities or to have them listed or admitted to trading. NewCo’s consent is required for any offer which would constitute a partial offer under the U.K. Takeover Code. |
Certain Provisions Relating to Business Combinations | |||
AGA | | | NewCo |
• if the offer could result in the person, together with any related or inter-related person or person acting in concert with any of them, holding AGA shares entitling such persons to exercise more than the Prescribed Percentage of the general voting rights of all issued AGA shares, make such offer conditional on a specified number of acceptances being received and the offer being approved by the independent holders of issued AGA shares if all such independent holders, in aggregate, control more than 50 per cent. (50%) of the general voting rights of all issued AGA shares; • state in the offer the precise number of shares offered for, if the offer could result in the person, together with any related or inter-related person or person acting in concert with any of them, holding AGA shares entitling such persons to exercise more than the Prescribed Percentage, but less than 50 per cent. (50%), of the general voting rights of all issued AGA shares; and • if the offer could result in the person, together with any related or inter-related person or person acting in concert with any of them, holding AGA shares entitling such persons to exercise more than the Prescribed Percentage of the general voting rights of all issued AGA shares, include a specific and prominent notice that the offer could result in such circumstances. The South African Takeover Regulations provides that an offer must not be subject to any condition: • that depends solely on subjective judgment by the directors (or equivalent) of the offeror; or • if the directors (or equivalent) of the offeror are able to control whether or not the condition will be fulfilled. Further, the South African Companies Act provides that if the AGA Board believes that a bona fide offer might be imminent, or has received such an offer, the AGA Board must not, among other things, take any action in relation to the affairs of AGA that could: (i) effectively result in a bona fide offer being frustrated; or (ii) the holders of AGA shares being denied an opportunity to decide on its merits. The South African Companies Act lists a wide range of actions which the AGA Board may not undertake without the prior written approval of the South African | | | An offeror must notify NewCo of any interest it (together with any person acting in concert with the offeror) holds in the shares of NewCo within two business days of any announcement that first identifies it as an offeror. If the offeror or any person acting in concert with the offeror deals in any interests in shares of NewCo during an offer period, it must notify NewCo of such dealing by no later than 12 p.m. (London time) on the business day following such dealing. For more information on disclosure requirements in connection with share ownership, see “Description of the NewCo Share Capital—Disclosure of significant share ownership”. NewCo will have powers to impose restrictions on any Breaching Person, including (i) restricting the Breaching Person’s ability to attend, either personally or by proxy, a shareholders’ meeting, (ii) disregarding any votes cast or purported to be cast by or on behalf of such Breaching Person, (iii) restricting the ability of such Breaching Person to requisition a resolution at an annual general meeting and/or to call a general meeting, (iv) withholding any dividends on any shares held by such Breaching Person, and (v) refusing to register any transfer of shares held by such Breaching Person (unless the NewCo directors are satisfied that the transfer is to an independent third party). Moreover, where the Breaching Person is not a shareholder, NewCo has the power to require the shareholder holding the shares in which the Breaching Person are interested to transfer, at NewCo’s direction, such shares to the Breaching Person or to such other nominee as NewCo may determine, and NewCo is appointed as the shareholder’s attorney for this purpose. This provision does not apply to any NewCo Ordinary Shares that are held through DTC. The NewCo Articles do not include restrictions on the ability of a company’s board to take “frustrating action” with respect to any offer or bona fide possible offer. |
Certain Provisions Relating to Business Combinations | |||
AGA | | | NewCo |
Takeover Regulation Panel, and the approval of the holders of the AGA shares, or in terms of a pre-existing obligation or agreement. The South African Companies Act provides, among other things, that during an offer, or when one is reasonably in contemplation, an offeror or a person acting in concert with that offeror, must not: • make arrangements with any holders of AGA shares; • deal in, or enter into arrangements to deal in, AGA shares; or • enter into arrangements which involve acceptance of an offer, if there are favorable conditions attached that are not being extended to all holders of AGA shares. | | | |
Corporate Governance | |||
AGA | | | NewCo |
The AGA MOI, as amended from time to time, and South African law govern the rights of AGA shareholders. There is no limitation imposed by the AGA MOI or by South African law on the rights of any persons, including non-residents, to own AGA Ordinary Shares or to exercise voting rights in respect of the AGA Ordinary Shares. AGA applies the principles of the King IV Report on Corporate Governance for South Africa, 2016. | | | The rights of NewCo shareholders are governed by, amongst other things, the NewCo Articles (as may be amended from time to time), English law (including without limitation statutes, as well as orders, regulations or other subordinate legislation made thereunder), and the terms of any agreement which may be entered into between NewCo shareholders and NewCo. There are no provisions in the NewCo Articles that restrict non-resident NewCo shareholders from holding or exercising voting rights in relation to NewCo Ordinary Shares. |
Rights of Inspection | |||
AGA | | | NewCo |
Under the South African Companies Act, AGA must maintain: • a copy of the AGA MOI; • a record of its directors; • copies of all – • reports presented at annual general meetings; • annual financial statements; and • accounting records; | | | Under English law, the register and index of names of NewCo shareholders, register of directors, register of secretaries and other statutory registers of NewCo may be inspected at any time (i) for free, by NewCo’s shareholders, and (ii) for a fee by any other person. A company may apply to the English courts for an order not to permit inspection if the person seeking inspection does not have a proper purpose in inspecting the register. Documents may be copied for a fee. Service contracts of NewCo’s directors can be inspected without charge during business hours. In this and certain other contexts under applicable English |
Rights of Inspection | |||
AGA | | | NewCo |
• notices of written communications sent to all holders of any class of AGA’s securities; and • minutes of all meetings and resolutions of directors and of director or audit committees. The records referred to above must be accessible at, or from, AGA’s registered office or another location(s) within South Africa. AGA must file a notice setting out the location at which the records are kept if such records are not kept at AGA’s registered office or have subsequently been moved. A person who holds, or has a beneficial interest in, any securities issued by AGA, has a right to inspect and copy (without any charge for any such inspection, or upon payment of no more than the prescribed maximum charge for any such copy) the information contained in: • the AGA MOI; • the records in respect of AGA’s directors; • reports to annual general meetings and annual financial statements; • notices and minutes of annual meetings; and • the securities register of AGA. A person that is not a securities holder has a right to inspect or copy the securities register or the register of directors upon payment of a fee. A person may so inspect and/or copy the records as aforesaid: • for a reasonable period during business hours; • by direct request made to AGA; or • in accordance with the Promotion of Access to Information Act, 2000. | | | law, “director” includes certain executive officers and “service contract” includes any contract under which such a director or executive officer undertakes personally to provide services to NewCo or a subsidiary company, whether in that person’s capacity as a director, an executive officer or otherwise. Where service contracts are not in writing, a written memorandum setting out the terms must be provided by NewCo. NewCo’s shareholders may inspect, without charge during business hours, minutes of meetings of NewCo’s shareholders for the previous ten years, and may obtain copies of the minutes for a fee. NewCo is required by English law to make available its annual accounts to shareholders at a general meeting and a shareholder is also entitled to a copy of such accounts. Additionally, the accounts must be made available on NewCo’s website and must remain available until the accounts for the next financial year are placed on the website. Under English law, the shareholders of NewCo do not have the right to inspect the corporate books of subsidiaries of NewCo. |
Derivative Claims | |||
AGA | | | NewCo |
Under the common law of South Africa, AGA is the proper plaintiff to bring an action in respect of a wrong done to it. The South African Companies Act states that any right at common law, of a person other than AGA, to bring or prosecute any legal proceedings on behalf of AGA is abolished, and the rights in | | | The U.K. Companies Act provides limited circumstances in which a NewCo shareholder may bring a derivative claim in the name of, or for and on behalf of, NewCo. Derivative claims may only be brought in relation to causes of action available to NewCo itself against directors, third parties, as well as |
Derivative Claims | |||
AGA | | | NewCo |
section 165 of the South African Companies Act are in substitution for any such abolished common law right. Therefore, AGA shareholders do not have a choice between the common law action or a statutory derivative action to sue on behalf of AGA. The South African Companies Act further states that a person may serve a demand upon AGA to commence or continue legal proceedings, or take related steps to protect the legal interests of AGA if that person: • is an AGA shareholder; • is a director or prescribed officer; • is a registered trade union that represents the employees of AGA; or • has been granted leave by the court to do so. Where AGA has received a demand it may apply (within 15 business days) to court to set aside the demand only on the grounds that it is frivolous, vexatious or without merit. If AGA does not make an application to set aside the demand, AGA must: • appoint an independent and impartial person or committee to investigate the demand, and report to the AGA Board with the findings on the– • facts giving rise to the demand; and • probable costs that AGA would incur if the demand is defended; and • either initiate or continue with legal proceedings or serve a notice on the person making the demand, stating that AGA will not comply with the demand made. The person who made the demand may apply to court for leave to bring or continue proceedings in the name, and on behalf, of AGA, and the court may grant leave only if: • AGA – • failed to take a procedural step required under the applicable section of the South African Companies Act; • appointed an investigator or committee who was not independent and impartial; | | | directors and third parties together arising from actual or proposed act or omission involving negligence, default, breach of duty or breach of trust by a director of NewCo. It is immaterial whether the cause of action arose before or after the person seeking to bring the claim became a shareholder of NewCo. A person seeking to bring a derivative claim must obtain the permission of the courts of England and Wales to continue that claim after issue. The courts of England and Wales must refuse the claim if they are satisfied that (i) a person acting in accordance with the duty to promote the success of the company for the benefit of its shareholders as a whole would not seek to continue the claim, (ii) the cause of action arose from an act or omission which is yet to occur but has been authorized by NewCo, or (iii) the cause of action arose from an act or omission that has occurred but was authorized by NewCo before it occurred or was ratified by NewCo since it occurred. If there is no absolute bar to continuing the claim, the courts of England and Wales must consider the following (non-exhaustive) factors: (i) whether the NewCo shareholder is acting in good faith; (ii) the importance that a person acting in accordance with the duty to promote the success of NewCo for the benefit of its shareholders as a whole would attach to continuing the proposed claim; (iii) whether a proposed act or omission would be likely to be authorized or ratified by NewCo; (iv) whether NewCo has decided not to pursue the claim; (v) whether the NewCo shareholder has a cause of action that he or she may pursue in his or her own right rather than on behalf of NewCo and (vi) the views of the NewCo shareholders who have no personal direct or indirect interest in the matter. On a successful application, the court may allow the applicant to, as the case may be: (i) bring or continue a claim on behalf of NewCo commenced by the applicant; or (ii) where appropriate for the claimant to do so, continue a claim commenced by NewCo or another shareholder in a manner amounting to an abuse of process and which has not been prosecuted diligently. |
Derivative Claims | |||
AGA | | | NewCo |
• accepted a report that was inadequate, irrational or unreasonable in its conclusions or recommendations; • acted in a manner that was inconsistent with the reasonable report of the independent and impartial investigator or committee; or • served notice of refusing to comply with the demand; and • the court is satisfied that – • the applicant is acting in good faith; • the proceedings will involve a serious question of material consequence to AGA; and • it is in the best interest of AGA that the applicant be granted leave to commence the proposed proceedings. | | | |
Shareholder Suits | |||
AGA | | | NewCo |
Under the South African Companies Act, an AGA shareholder or director may, under certain circumstances, seek relief from a court if he has been unfairly prejudiced by any act or omission of AGA or a related person, by the conduct of the business of AGA or a related person in a particular manner or by the exercise of the powers of the directors of AGA or a related person in a particular manner. Pursuant to the South African Companies Act, an AGA shareholder may petition a South African court for relief from the actions or omissions or, business conduct of AGA or the actions of AGA’s directors or officers that is oppressive or unfairly prejudicial to, or unfairly disregards the interest of the AGA shareholder. | | | The U.K. Companies Act permits a NewCo shareholder to apply to the courts of England and Wales for relief on the grounds that: (i) NewCo’s affairs are being or have been conducted in a manner unfairly prejudicial to the interests of all or some of NewCo shareholders, including the NewCo shareholder making the claim or (ii) any act or omission of NewCo is or would be so prejudicial. The U.K. Limitation Act 1980 imposes a limitation period, with certain exceptions, on civil claims. The period is six years in respect of actions in contract and tort, and twelve years for breach of any obligation contained in a deed. The period starts to run on the date that the action accrued. Subject to certain exceptions, in the case of contract, this is the date on which the breach occurred, and in tort, this is generally the date on which the damage occurred. |
Disclosure of Interest in Shares | |||
AGA | | | NewCo |
Under the South African Companies Act, a person must notify AGA within three business days after that person (i) acquires a beneficial interest in sufficient securities of a class of securities issued by AGA such that, as a result of the acquisition, the person holds a beneficial interest in securities amounting to five per cent. (5%), 10 per cent. (10%), 15 per cent. (15%) or any further whole multiple of five per cent. (5%) of the issued securities of that class or (ii) disposes of any beneficial interest in sufficient securities of a class of securities issued by AGA such that, as a result of the disposition, the person no longer holds a beneficial interest in securities amounting to a particular multiple of five per cent. (5%) of issued securities of that class. When AGA has received the notice referred to above it must file a copy with the South African Takeover Regulation Panel and report the information to holders of the relevant class of securities unless the notice concerned is a disposition of less than one per cent. (1%) of the class of securities. If the securities of AGA are registered in the name of a person who is not the holder of the beneficial interest in all of the securities in AGA held by that person, that registered holder of the securities must disclose the identity of the person on whose behalf that security is held and the identity of each person with a beneficial interest in securities so held, the number and the class of securities held for each such person with a beneficial interest and the extent of each such beneficial interest. This information must be disclosed in writing to AGA within five business days after the end of every month during which a change has occurred in the information or more promptly or frequently to the extent so provided by the requirements of a central securities depository. A company that knows or has reasonable cause to believe that any of its securities are held by one person for the beneficial interest of another may by notice in writing require either of those persons to confirm or deny that fact, provide particulars of the extent of the beneficial interest held during the three years preceding the date of the notice and disclose the identity of each person with a beneficial interest in the securities held by that person, which information must be provided within ten business days of the receipt of the notice. AGA is obligated to establish and maintain a register of the disclosures described above and to publish in its annual financial statements a list of the persons who hold beneficial interests equal to or in excess of five per cent. (5%) of the total number of AGA | | | Under English law, NewCo is empowered to give notice in writing to any person whom it knows, or has reasonable cause to believe, to have an interest in its shares, or to have had an interest at any time during the three years immediately preceding the date on which the notice is issued, requiring such person, within a reasonable period and in any event within 14 days, to disclose to NewCo particulars of the person’s interest and (so far as is within its knowledge) particulars of any other interest that subsists or subsisted in those shares. Pursuant to the NewCo Articles, NewCo will have powers to impose restrictions on any Identified Person, including (i) restricting the Identified Person’s ability to attend, either personally or by proxy, a shareholders’ meeting, (ii) disregarding any votes cast or purported to be cast by or on behalf of such Identified Person (or any person acting in concert with them), (iii) restricting the ability of such Identified Person to requisition a resolution at an annual general meeting and/or to call a general meeting, (iv) withholding any dividends on any shares held by such Identified Person, and (v) refusing to register any transfer of shares held by such Identified Person or any person acting in concert with them (unless the NewCo directors are satisfied that the transfer is to an independent third party). Moreover, pursuant to the NewCo Articles, where the Identified Person is not a shareholder, NewCo has the power to require the shareholder holding the shares in which the Identified Person is interested to transfer, at NewCo’s discretion, such shares to the Identified Person or to such other nominee as NewCo may determine in its sole discretion for nil consideration and on such other terms and conditions as NewCo may determine and NewCo is appointed as the shareholder’s attorney for this purpose. This provision does not apply to any NewCo Ordinary Shares that are held through DTC. If NewCo decides to exercise any of the enforcement powers described above, it will send out a notice to the Identified Person notifying them of such and the exercise of such powers will not be effective until such notice has been delivered. Pursuant to the NewCo Articles and subject to certain exemptions, a person must notify the NewCo Board in the event that the percentage of the voting rights in NewCo held by such person reaches, exceeds or falls |
Disclosure of Interest in Shares | |||
AGA | | | NewCo |
Ordinary Shares issued by AGA together with the extent of those beneficial interests. | | | below (i) 3 per cent. (3%), 4 per cent. (4%), 5 per cent. (5%) and (ii) each 1 per cent. (1%) threshold thereafter up to 100 per cent. (100%), whether as a result of an acquisition or disposal of shares or as a result of a change in voting rights attaching to the shares. The notification must be made within two days of the day on which the notification requirement arises. |
Conflict of Interest Transactions | |||
AGA | | | NewCo |
Under the South African Companies Act, at any time, a director may disclose any personal financial interest in advance by delivering to the AGA Board a notice in writing setting out the nature and extent of that interest. If a director has a personal financial interest in respect of a matter to be considered at a meeting of the AGA Board, or knows that a related person has a financial interest in the matter, the director: • must disclose the interest and its general nature before the matter is considered at the meeting; • must disclose to the meeting any material information relating to the matter and is known to the director; • may disclose any observation or pertinent insights relating to the matter, if requested to do so by the other directors; • if present at the meeting, must leave the meeting immediately after making any disclosure; • must not take part in the consideration of the matter; • while absent from the meeting, the director is– • to be regarded as being present at the meeting for the purpose of determining whether sufficient directors are present to constitute the meeting; and • not to be regarded as being present at the meeting for the purpose of determining whether a resolution has sufficient support to be adopted; and • must not execute any document on behalf of AGA in relation to the matter unless | | | Under English law, certain transactions between a director (or a person connected with a director) and a related company are prohibited unless approved by shareholders – these include loans, quasi-loans, credit transactions and substantial property transactions. Under the NewCo Articles, the NewCo directors may authorize any matter which would otherwise involve a breach of a director’s duty to avoid conflicts of interest (a “Conflict”). A director seeking authorization in respect of a Conflict (the “Relevant Director”) must declare the nature and extent of their interest at a meeting of the NewCo Board or by notice. Any director (including the Relevant Director) may propose that the Relevant Director be authorized in relation to the Conflict, in which case such proposal will be voted on (the Relevant Director will not be counted in the quorum and will not vote on such proposal and may be excluded from the meeting while the Conflict is under consideration). Where the directors give authority in relation to a Conflict, or a Relevant Situation (as defined below) applies, the directors: • may restrict the Relevant Director’s receipt of information, participation in discussions and/or making of decisions related to the Conflict or Relevant Situation and impose such other terms for the purpose of dealing with the Conflict or Relevant Situation as they think fit and the Relevant Director must comply with any such terms; • may also provide that where the Relevant Director obtains (otherwise than through their position as a director of NewCo) information that is confidential to a third party, the director will not be obliged to disclose such information to NewCo or to use it in |
Conflict of Interest Transactions | |||
AGA | | | NewCo |
specifically requested or directed to do so by the AGA Board. If a director acquires a personal financial interest in an agreement or other matter in which AGA has a material interest (or knows that a related party has acquired such interest) after the agreement or other matter has been approved by AGA, the director must promptly disclose to the AGA Board the nature and extent of that interest, and the material circumstances relating to the interest. A decision by the AGA Board, or a transaction or agreement approved by the AGA Board is valid despite any personal financial interest of a director (or a person related to the director) only if: • it was approved following the disclosure of an interest; or • despite having been approved without disclosure of an interest it – • has subsequently been ratified by an ordinary resolution of the shareholders following the disclosure of an interest; or • has been declared to be valid by court. A court (upon application by any interested person) may declare a transaction or agreement valid where it had been approved by the AGA Board or the shareholders, despite the failure of the director to satisfy the disclosure requirements. | | | NewCo’s affairs; • the terms of the authority will be recorded in writing; and • the authority may be revoked or amended at any time. If a director knows that they are in any way directly or indirectly interested in a proposed contract with or that has been entered into by NewCo, they must tell the other directors the nature and extent of that interest. If the director has done so, they can: • have any kind of interest in a contract with or involving NewCo or another company in which NewCo has an interest; • hold any other office or place of profit with NewCo (except that of auditor) in conjunction with the director’s office as a director for such period and upon such terms as the directors may decide; • do paid professional work for NewCo or another company in which NewCo has an interest (other than as auditor); • be or become a director or other officer of, or employed by or a party to a transaction or arrangement with, or otherwise be interested in any company in which NewCo has an interest; and/or • be or become a director of any other company in which NewCo does not have an interest and which cannot reasonably be regarded as giving rise to a conflict of interest, (the “Relevant Situations”). A director cannot vote or be counted in the quorum on a resolution of the directors about a contract in which that director has an interest, but such prohibition will not apply to any resolution where that interest cannot reasonably be regarded as likely to give rise to a conflict of interest. |
Petition for winding up on just and equitable grounds | |||
AGA | | | NewCo |
South African law permits one or more AGA shareholders (including minority AGA shareholders) or one or more AGA directors to apply to court for an order to wind up the company on the grounds that: • the directors are deadlocked in the management of AGA, and the AGA shareholders are unable to break the deadlock, and irreparable injury to AGA is resulting, or may result, from the deadlock; or AGA’s business cannot be conducted to the advantage of AGA shareholders generally, as a result of the deadlock; • the AGA shareholders are deadlocked in voting power, and have failed for a period that includes at least two consecutive annual general meeting dates, to elect successors to directors whose terms have expired; or • it is otherwise just and equitable for AGA to be wound up. An AGA shareholder may also apply, with leave of the court, for an order to wind up AGA on the grounds that: • the directors, prescribed officers or other persons in control of AGA are acting in a manner that is fraudulent or otherwise illegal; or • AGA’s assets are being misapplied or wasted. | | | English law permits shareholders of a company (including minority shareholders) to petition to court to wind up a company. There must be circumstances rendering it just and equitable for NewCo to be wound up, which include, without limitation: (i) a deadlock which was not contemplated by the shareholders when NewCo was incorporated; (ii) a justifiable loss of confidence in management arising from mismanagement which is serious (such as fraud) or confounds proper and legitimate expectations; and (iii) an exclusion from management or failure to provide information in the context of a quasi-partnership or where the understandings or agreements between the parties render such conduct inequitable. Following a successful petition, the court may order NewCo to be wound up. |
Item 20. | Indemnification of Directors and Officers |
a) | purchase and maintain for a director of the company insurance against any such liability, |
b) | indemnify the director against liability incurred by the director to a person other than the company or an associated company (a “qualifying third party indemnity provision”), or |
c) | indemnify a director of a company that is a trustee of an occupational pension scheme against liability incurred in connection with the company’s activities as trustee of the scheme (a “qualifying pension scheme indemnity provision”). |
Item 21. | Exhibits and Financial Statements |
Exhibit Number | | | Description | | | Method of Filing |
2.1 | | | Scheme Implementation Agreement between AngloGold Ashanti (UK) Limited and AngloGold Ashanti Limited, concluded on [•], 2023 | | | To be filed by amendment |
2.2 | | | Irrevocable Offer to Purchase by AngloGold Ashanti (UK) Limited, executed on [•], 2023 | | | To be filed by amendment |
3.1 | | | AngloGold Ashanti plc Articles of Association | | | To be filed by amendment |
5.1 | | | Opinion of Slaughter and May, English law counsel | | | Filed herewith |
8.1 | | | Opinion of Cravath, Swaine & Moore LLP regarding certain U.S. federal income tax matters | | | Filed herewith |
8.2 | | | Opinion of Bowman Gilfillan Inc. regarding certain South African law tax matters | | | Filed herewith |
8.3 | | | Opinion of Slaughter and May regarding certain English law tax matters | | | Filed herewith |
23.1 | | | Consent of Ernst & Young Incorporated, independent registered public accounting firm | | | To be filed by amendment |
23.2 | | | Consent of BDO LLP, independent registered public accounting firm | | | To be filed by amendment |
23.3 | | | Consent of Cravath, Swaine & Moore LLP | | | Included as part of Exhibit 8.1 |
23.4 | | | Consent of Bowman Gilfillan Inc. | | | Included as part of Exhibit 8.2 |
23.5 | | | Consent of Slaughter and May | | | Included as part of Exhibit 5.1 and Exhibit 8.3 |
23.6 | | | Consent of Chairperson of the Mineral Resource and Mineral Reserve Leadership Team | | | To be filed by amendment |
23.7 | | | Consents of Qualified Persons for Technical Report Summary, Geita Gold Mine, A Life of Mine Summary Report | | | To be filed by amendment |
23.8 | | | Consents of Qualified Persons for Technical Report Summary, Kibali Gold Mine, A Life of Mine Summary Report | | | To be filed by amendment |
23.9 | | | Consents of Qualified Persons for Technical Report Summary, Obuasi, A Life of Mine Summary Report | | | To be filed by amendment |
24.1 | | | Powers of Attorney (included on signature page to this registration statement) | | | Included on signature page |
99.1 | | | Consent of Maria Ramos | | | To be filed by amendment |
99.2 | | | Consent of Rhidwaan Gasant | | | To be filed by amendment |
99.3 | | | Consent of Gillian Doran | | | To be filed by amendment |
99.4 | | | Consent of Kojo Busia | | | To be filed by amendment |
99.5 | | | Consent of Alan Ferguson | | | To be filed by amendment |
99.6 | | | Consent of Albert Garner | | | To be filed by amendment |
99.7 | | | Consent of Scott Lawson | | | To be filed by amendment |
99.8 | | | Consent of Maria Richter | | | To be filed by amendment |
99.9 | | | Consent of Jochen Tilk | | | To be filed by amendment |
99.10 | | | Form of Surrender and Transfer | | | To be filed by amendment |
99.11 | | | Form of Notice of Shareholders’ Meeting | | | To be filed by amendment |
99.12 | | | Form of Proxy | | | To be filed by amendment |
99.13 | | | Extract of Section 164 of the Companies Act | | | Filed herewith |
107 | | | Filing fee table | | | To be filed by amendment |
Item 22. | Undertakings |
(a) (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i) | to include any prospectus required by section 10(a)(3) of the Securities Act; |
(ii) | to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 per cent. (20%) change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
(iii) | to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
(2) | that, for the purpose of determining any liability under the Securities Act, each such post-effective amendment will be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time will be deemed to be the initial bona fide offering thereof; |
(3) | to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering; |
(4) | to file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A of Form 20-F at the start of any delayed offering or throughout a continuous offering; |
(5) | that, for the purpose of determining liability under the Securities Act to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, will be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use; and |
(6) | that, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: (i) any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; (ii) any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; (iii) the portion of any other free writing prospectus |
(b) | That, prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this registration statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other Items of the applicable form. |
(c) | That every prospectus (i) that is filed pursuant to the immediately preceding paragraph, or (ii) that purports to meet the requirements of Section 10(a)(3) of the Act and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to the registration statement and will not be used until such amendment is effective, and that, for purposes of determining any liability under the Securities Act, each such post-effective amendment will be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time will be deemed to be the initial bona fide offering thereof. |
(d) | (i) To respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means; and (ii) to arrange or provide for a facility in the U.S. for the purpose of responding to such requests. The undertaking in subparagraph (i) above includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request. |
(e) | To supply by means of a post-effective amendment all information concerning a transaction and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective. |
(f) | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. |
| | | AngloGold Ashanti (UK) Limited | ||||
| | | | | |||
| | | By: | | | ||
| | | | | Name: | ||
| | | | | Title: | ||
Signature | | | Title |
| | | ||
| | | Executive Director (Principal Executive Officer) | |
Alberto Calderon Zuleta | | ||
| | | ||
| | | Executive Director (Principal Financial Officer and Principal Accounting Officer) | |
Robert Paul Harling Hayes | | ||
| | | ||
| | | Authorized Representative in the United States | |
Gillian Ann Doran | | |
| 1. |
We have acted as legal advisers to the Company and the Company’s shareholder, AngloGold Ashanti Limited, a public limited company incorporated and tax resident in the Republic of South Africa (“AGA”),
as to matters of English law in connection with AGA’s proposed reorganization through, amongst other things, the insertion of the Company as the new parent company of the AGA group (the “Transaction”).
|
| 2. |
This opinion is being delivered in connection with the registration statement of the Company on Form F-4 (the “Registration Statement”) filed on the date hereof with the United States Securities
and Exchange Commission under and in accordance with the U.S. Securities Act of 1993, as amended (the “Securities Act”), relating to the registration of new ordinary shares in the capital of the
Company to be issued in connection with the Transaction.
|
| 3. |
For the purposes of this opinion, we have examined:
|
| (A) |
the Registration Statement;
|
| (B) |
the implementation agreement dated [●], setting out among other things the terms and conditions under and pursuant to which the Transaction would be carried out (the “Implementation
Agreement”);
|
| (C) |
the irrevocable offer to purchase dated [●], setting out amongst other things the terms and conditions pursuant to which the Company would irrevocably offer to purchase all the shares in the issued share capital
of AngloGold Ashanti Holdings plc (the “Irrevocable Offer to Purchase AGAH”);
|
| (D) |
the articles of association of the Company adopted on [●]; and
|
| (E) |
the results of (i) a search at the Registrar of Companies in respect of the Company on [●]; and (ii) a search at the Central Registry of Winding-Up Petitions in respect of the Company on [●], together the “Searches”.
|
| 4. |
This letter sets out our opinion on certain matters of English law as at the date of this letter and as currently applied by the English courts. We have not made any investigation of, and do not express opinion on, any other law. This
letter is to be governed and construed in accordance with English law.
|
| 5. |
By giving this opinion, we do not assume any obligation to notify you of any future changes in law which may affect the opinions expressed in this opinion, or to otherwise update this opinion in any respect.
|
| 6. |
Further, we have assumed that:
|
| (A) |
the Transaction will be effected under and in accordance with the Implementation Agreement and the Irrevocable Offer to Purchase AGAH and in the manner contemplated by the Registration Statement;
|
| (B) |
copy (including electronic copy) documents examined by us conform fully to the original documents;
|
| (C) |
signatures on executed documents (or copies thereof) which we have examined are genuine;
|
| (D) |
shortly prior to the implementation of the Transaction, a meeting of the sole shareholder of the Company (being AGA), being quorate, will be duly convened and the appropriate resolutions authorising the directors
of the Company for the purposes of section 551 of the U.K. Companies Act 2006, to exercise all of the powers of the Company to allot up to the aggregate nominal value of the Ordinary Shares as at the date of allotment of the Ordinary
Shares, will be validly passed, such resolution will remain in full force and effect, not having been amended and revoked, at the time of allotment of the Ordinary Shares;
|
| (E) |
following the resolution referred to in paragraph (D) above being passed and prior to the implementation of the Transaction, a meeting of the board of directors and/or an appropriately authorised committee of
directors of the Company, being quorate, will be duly convened and the appropriate resolutions providing for the issue of the Ordinary Shares will be validly passed and such resolution will remain in full force and effect, not having been
amended and revoked, at the time of allotment of the Ordinary Shares;
|
| (F) |
prior to the implementation of the Transaction, no shares of the Company will be allotted, and no rights to subscribe for or convert any security into shares of the Company will be granted, pursuant to the
authority granted by article [5] of the articles of association of the Company;
|
| (G) |
each director of the Company has disclosed or will disclose at or prior to the date of the Transaction any interest which he or she may have in the Transaction, and any potential conflict such directors have in
respect of the Transaction have been approved, in each case in accordance with the U.K. Companies Act 2006 and the articles of association of the Company, and none of the directors has any interest in the Transaction except to the extent
permitted by the articles of association of the Company;
|
| (H) |
in considering and passing the requisite resolutions, the directors of the Company will act in good faith to promote the success of the Company for the benefit of its members as a whole, and in accordance with any
other duty, which, if breached, could give rise to such transactions being avoided;
|
| (I) |
the names of the appropriate persons will be entered in the Company’s register of members upon implementation of the Transaction;
|
| (J) |
that (i) the information disclosed by the Searches at the time each was conducted, was complete, up to date and accurate and has not since then been altered or added to and (ii) the Searches did not fail to
disclose any information relevant for the purposes of this opinion;
|
| (K) |
that (i) the Company has not made any proposal for a voluntary arrangement or obtained a moratorium under Part I of the U.K. Insolvency Act 1986, (ii) the Company has not given any notice in relation to or passed
any winding-up resolution, (iii) no application has been made or petition presented to a court, and no order has been made by a court, for the winding-up or administration of the Company, and no step has been taken to strike off or dissolve
the Company, (iv) no liquidator, administrator, receiver, administrative receiver, trustee in bankruptcy or similar officer has been appointed in relation to the Company or any of its assets or revenues, and no notice has been given or
filed in relation to the appointment of such an officer, and (v) no analogous procedure has been commenced in any jurisdiction outside England and Wales in relation to the Company or any of its assets or revenues;
|
| (L) |
the directors of the Company have complied with their duties as directors insofar as relevant to this opinion; and
|
| (M) |
any and all acts, conditions and other things required to be fulfilled, performed or effected in connection with the Transaction under the laws of any jurisdiction other than England have been or will before
implementation of the Transaction be duly fulfilled, performed and effected.
|
| 7. |
Our reservations are as follows:
|
| (A) |
We have not been responsible for verifying the accuracy of the information or the reasonableness of any statements of opinion contained in the Registration Statement other than Exhibit 5.1, Exhibit 8.3 and the
section under the heading “Enforcement of Certain Civil Liabilities”, or that no material information has been omitted from it. In addition, we express no opinion as to whether the Registration Statement (or any part of it) contained or
contains all the information required to be contained in it or whether the persons responsible for the Registration Statement have discharged their obligations thereunder.
|
| (B) |
The Searches are not conclusive as to whether or not insolvency proceedings have been commenced in relation to the Company or any of its assets. For example, information required to be filed with the Registrar of
Companies or the Central Registry of Winding up Petitions is not in all cases required to be filed immediately; once filed, the information may not be made publicly available immediately (or at all); information filed with a District
Registry or County Court may not, and in the case of administrations will not, become publicly available at the Central Registry; and the Searches may not reveal whether insolvency proceedings have been commenced in jurisdictions outside
England and Wales.
|
| 8. |
Based on and subject to the foregoing, and subject to the limitations, qualifications, assumptions and reservations mentioned herein and in the Registration Statement, and subject further to any matters or facts not disclosed to us, we
hereby confirm that the ordinary shares in the capital of the Company, when allotted by the Company in conformity with the articles of association will have been duly created, their issue duly authorised and, upon the Company’s receipt of
the consideration therefor will be validly issued, fully paid and non-assessable. In this context, “non-assessable” means that the holder of an ordinary shares in the capital of the Company is not liable, solely because he is a holder of an
ordinary shares in the capital of the Company for additional assessments or calls on the ordinary shares in the capital of the Company by the Company or its creditors.
|
| 9. |
We hereby consent to the use of our name in the Registration Statement and to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not hereby admit that we are “experts” under the
Securities Act of 1933 or the rules and regulations of the United States Securities and Exchange Commission issued thereunder with respect to any part of the Registration Statement, including this opinion.
|
|
|
Very truly yours, |
|
|
|
|
|
Cravath, Swaine & Moore LLP
|
|
Our Reference:
|
M Benetello
|
Your Reference:
|
AngloGold Ashanti Limited
Reorganization Transaction
|
|
Direct Line:
|
+27 11 669 9330
|
Date:
|
[●] 2023
|
|
Email Address:
|
mike.benetello@bowmanslaw.com
|
||
|
1.
|
INTRODUCTION
|
|
1.1
|
We act as South African tax advisor to the Registrant in connection with the prospectus included in the Registration Statement.
|
|
1.2
|
Certain terms used in this opinion are defined in the Annex (Definitions).
|
|
2.
|
SOUTH AFRICAN TAX LAW
|
|
2.1
|
This opinion is limited to the South African tax law in effect on the date of this opinion. It (including all terms used in it) is to be construed in accordance with South African law.
|
|
3.
|
SCOPE OF ENQUIRY
|
|
3.1
|
We have examined the following documents:
|
|
3.1.1
|
A copy of the Registration Statement;
|
|
3.1.2
|
A copy of the Implementation Agreement; and
|
|
3.1.3
|
A copy of the Offer to Purchase.
|
|
4.
|
ASSUMPTIONS
|
|
4.1
|
We have made the following assumptions: |
|
4.1.1
|
The copy of each of the Registration Statement, the Implementation Agreement and the Offer to Purchase conforms to the original and is genuine and complete; |
|
4.1.2
|
The Registration Statement has been or will be filed with the SEC in the form referred to in this opinion; |
|
4.1.3
|
Each transaction described in the Registration Statement is entered in to on an arm’s length basis; and |
|
4.1.4
|
The South African Reserve Bank (Financial Surveillance Department) has provided the relevant exchange control consents. |
|
5.
|
OPINION
|
|
5.1
|
Based on the documents referred to and the assumptions made in paragraphs 3 and 4 and subject to any matters not disclosed to us, we are of the following opinion: |
|
5.1.1
|
The statements in the Registration Statement under the heading “Material South African Tax Consequences” are our opinion. |
|
6.
|
RELIANCE
|
|
6.1
|
This opinion is an exhibit to the Registration Statement and may be relied upon for the purpose of the Registration. It may not be supplied, and its contents of existence may not be disclosed, to any person other than as an exhibit to (and therefore together with) the Registration Statement and may not be relied upon for any purpose other than the Registration. |
|
6.2
|
We hereby consent to: |
|
6.2.1
|
The filing of this opinion as an exhibit to the Registration Statement; and |
|
6.2.2
|
The references to Bowman Gilfillan under the headings “Material South African Tax Consequences” and “Legal Matters” in the Registration Statement. |
| 1. |
We have acted as legal advisers to the Company and the Company’s shareholder, AngloGold Ashanti Limited, a public limited company incorporated and tax resident in the Republic of South Africa (“AGA”),
as to matters of English law in connection with AGA’s proposed reorganization through, amongst other things, the insertion of the Company as the new parent company of the AGA group (the “Transaction”).
|
| 2. |
This opinion is being delivered in connection with the registration statement of the Company on Form F-4 (the “Registration Statement”) filed on the date hereof with the United States Securities and
Exchange Commission under and in accordance with the U.S. Securities Act of 1993, as amended (the “Securities Act”), relating to the registration of new ordinary shares in the capital of the Company to
be issued in connection with the Transaction.
|
| 3. |
For the purposes of this opinion, we have examined:
|
| (A) |
the Registration Statement;
|
| (B) |
the implementation agreement dated [●], setting out among other things the terms and conditions under and pursuant to which the Transaction would be carried out (the “Implementation
Agreement”); and
|
| (C) |
the irrevocable offer to purchase dated [●], setting out amongst other things the terms and conditions pursuant to which the Company would irrevocably offer to purchase all the shares in the issued share capital of
AngloGold Ashanti Holdings plc (the “Irrevocable Offer to Purchase AGAH”).
|
| 4. |
This letter sets out our opinion on certain matters of English law and HM Revenue and Customs (“HMRC”) practice as at the date of this letter and as currently applied by the English courts and HMRC.
We have not made any investigation of, and do not express opinion on, any other law. This letter is to be governed and construed in accordance with English law.
|
| 5. |
By giving this opinion, we do not assume any obligation to notify you of any future changes in law or HMRC practice which may affect the opinions expressed in this opinion, or to otherwise update this opinion in any respect.
|
| 6. |
Save as expressly set out below in relation to the section headed “Material U.K. Tax Consequences”, we have not been responsible for verifying:
|
| (A) |
the accuracy of any information or reasonableness of any statements of opinion contained in the Registration Statement, Implementation Agreement, Irrevocable Offer to Purchase AGAH or any other documents referred to
in this opinion; or
|
| (B) |
that no material information has been omitted from such documents,
|
| 7. |
Further, we have assumed that:
|
| (A) |
the Transaction will be effected under and in accordance with the Implementation Agreement and the Irrevocable Offer to Purchase AGAH and in the manner contemplated by the Registration Statement;
|
| (B) |
all representations and statements set forth in the Implementation Agreement, the Irrevocable Offer to Purchase AGAH and the Registration Statement are true, correct and complete, and will remain so up to and
including the effective time of the Transaction (the “Effective Time”);
|
| (C) |
any representation or statement qualified by belief, knowledge, materiality or any similar qualification is true, correct and complete without such qualification, and will remain so up to and including the Effective
Time;
|
| (D) |
copy (including electronic copy) documents examined by us conform fully to the original documents;
|
| (E) |
signatures on executed documents (or copies thereof) which we have examined are genuine;
|
| (F) |
the names of the appropriate persons will be entered in the Company’s register of members upon implementation of the Transaction;
|
| (G) |
all natural persons are of legal capacity; and
|
| (H) |
any and all acts, conditions and other things required to be fulfilled, performed or effected in connection with the Transaction under the laws of any jurisdiction other than England have been or will before
implementation of the Transaction be duly fulfilled, performed and effected.
|
| 8. |
Based on and subject to the foregoing and subject to the limitations, qualifications and assumptions mentioned herein and in the Registration Statement, and subject further to any matters or facts not disclosed to us, we hereby confirm
that the statements in the Registration Statement under the heading “Material U.K. Tax Consequences” are our opinion.
|
| 9. |
We hereby consent to the use of our name in the Registration Statement and to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not hereby admit that we are “experts” under the Securities
Act or the rules and regulations of the United States Securities and Exchange Commission issued thereunder with respect to any part of the Registration Statement, including this opinion.
|
| (a) |
amend its Memorandum of Incorporation by altering the preferences, rights, limitations or other terms of any class of its shares in any manner materially adverse to the rights or interests of holders of that class of shares, as
contemplated in section 37 (8); or
|
| (b) |
enter into a transaction contemplated in section 112, 113, or 114, that notice must include a statement informing shareholders of their rights under this section.
|
| (a) |
gave the company a written notice of objection in terms of subsection (3); and
|
| (b) |
has neither-
|
| (i) |
withdrawn that notice; or
|
| (ii) |
voted in support of the resolution.
|
| (a) |
the shareholder-
|
| (i) |
sent the company a notice of objection, subject to subsection (6); and
|
| (ii) |
in the case of an amendment to the company’s Memorandum of Incorporation, holds shares of a class that is materially and adversely affected by the amendment;
|
| (b) |
the company has adopted the resolution contemplated in subsection (2); and
|
| (c) |
the shareholder-
|
| (i) |
voted against that resolution; and
|
| (ii) |
has complied with all of the procedural requirements of this section.
|
| (a) |
20 business days after receiving a notice under subsection (4); or
|
| (b) |
if the shareholder does not receive a notice under subsection (4), within 20 business days after learning that the resolution has been adopted.
|
| (a) |
the shareholder’s name and address;
|
| (b) |
the number and class of shares in respect of which the shareholder seeks payment; and
|
| (c) |
a demand for payment of the fair value of those shares.
|
| (a) |
the shareholder withdraws that demand before the company makes an offer under subsection (11), or allows an offer made by the company to lapse, as contemplated in subsection (12) (b);
|
| (b) |
the company fails to make an offer in accordance with subsection (11) and the shareholder withdraws the demand; or
|
| (c) |
the company, by a subsequent special resolution, revokes the adopted resolution that gave rise to the shareholder’s rights under this section.
|
| (a) |
the day on which the action approved by the resolution is effective;
|
| (b) |
the last day for the receipt of demands in terms of subsection (7) (a); or
|
| (c) |
the day the company received a demand as contemplated in subsection (7) (b), if applicable,
|
| (a) |
in respect of shares of the same class or series must be on the same terms; and
|
| (b) |
lapses if it has not been accepted within 30 business days after it was made.
|
| (a) |
the shareholder must either in the case of-
|
| (i) |
shares evidenced by certificates, tender the relevant share certificates to the company or the company’s transfer agent; or
|
| (ii) |
uncertificated shares, take the steps required in terms of section 53 to direct the transfer of those shares to the company or the company’s transfer agent; and
|
| (b) |
the company must pay that shareholder the agreed amount within 10 business days after the shareholder accepted the offer and-
|
| (i) |
tendered the share certificates; or
|
| (ii) |
directed the transfer to the company of uncertificated shares.
|
| (a) |
failed to make an offer under subsection (11); or
|
| (b) |
made an offer that the shareholder considers to be inadequate, and that offer has not lapsed.
|
| (a) |
all dissenting shareholders who have not accepted an offer from the company as at the date of the application must be joined as parties and are bound by the decision of the court;
|
| (b) |
the company must notify each affected dissenting shareholder of the date, place and consequences of the application and of their right to participate in the court proceedings; and
|
| (c) |
the court-
|
| (i) |
may determine whether any other person is a dissenting shareholder who should be joined as a party;
|
| (ii) |
must determine a fair value in respect of the shares of all dissenting shareholders, subject to subsection (16);
|
| (iii) |
in its discretion may-
|
|
|
(aa)
|
appoint one or more appraisers to assist it in determining the fair value in respect of the shares; or
|
|
|
(bb)
|
allow a reasonable rate of interest on the amount payable to each dissenting shareholder from the date the action approved by the resolution is effective, until the date of payment;
|
| (iv) |
may make an appropriate order of costs, having regard to any offer made by the company, and the final determination of the fair value by the court; and
|
| (v) |
must make an order requiring-
|
|
|
(aa)
|
the dissenting shareholders to either withdraw their respective demands or to comply with subsection (13) (a); and
|
|
|
(bb)
|
the company to pay the fair value in respect of their shares to each dissenting shareholder who complies with subsection (13) (a), subject to any
conditions the court considers necessary to ensure that the company fulfils its obligations under this section.
|
| (a) |
that shareholder must comply with the requirements of subsection (13) (a); and
|
| (b) |
the company must comply with the requirements of subsection (13) (b).
|
| (a) |
the company may apply to a court for an order varying the company’s obligations in terms of the relevant subsection; and
|
| (b) |
the court may make an order that-
|
| (i) |
is just and equitable, having regard to the financial circumstances of the company; and
|
| (ii) |
ensures that the person to whom the company owes money in terms of this section is paid at the earliest possible date compatible with the company satisfying its other financial obligations as they fall due and payable.
|
| (a) |
the provisions of that section; or
|
| (b) |
the application by the company of the solvency and liquidity test set out in section 4.
|
| (a) |
expressly provided in this section; or
|
| (b) |
that the Panel rules otherwise in a particular case,
|
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