England | | | 1040 | | | Not Applicable |
(State or other jurisdiction of incorporation or organization) | | | (Primary Standard Industrial Classification Code Number) | | | (I.R.S. Employer Identification Number) |
• | 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. |
• | AGA’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022, filed with the SEC on March 17, 2023 (the “AGA 2022 Form 20-F”); and |
• | AGA’s Report on Form 6-K filed with the SEC on June 23, 2023 containing unaudited condensed consolidated interim financial statements as of March 31, 2023 and 2022 and for each of the three-month periods ended March 31, 2023 and 2022, prepared in accordance with IFRS, and related management’s discussion and analysis of financial condition and results of operations (the “AGA 2023 First Quarter Report”). |
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 May 12, 2023, and as amended on June 23, 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: | What are the transaction costs and expenses of implementing the Reorganization and the NewCo Notes Distribution? |
A: | The transaction costs and expenses of implementing the Reorganization and the NewCo Notes Distribution (as defined below) are largely tied to factors such as the fair market value of AGAH (which in turn is related to, and driven by factors similar to that which determine, AGA’s market capitalization) and the ZAR/USD exchange rate, in each case on the Operative Date. Based on current legislation, an assumed market capitalization of AGA of ZAR 186,115 million, an AGA share price of ZAR 444 and a ZAR/USD exchange rate of 18.19, each as of June 19, 2023, the total transaction costs and expenses of the Reorganization and NewCo Notes Distribution are estimated to be approximately $482 million, representing approximately five per cent. (5%) of the market capitalization of AGA, consisting of tax costs payable in South Africa and Australia of approximately $422 million as well as transaction expenses. The total transaction costs and expenses of the Reorganization are expected to be funded from available cash resources and drawdowns of our $1.4 billion multi-currency syndicated facility. See “The Reorganization—Tax Consequences of the Reorganization and the NewCo Notes Distribution for the Group” and “The Reorganization—Narrative Description of the Pro Forma Effects of the Reorganization and the NewCo Notes Distribution”. |
Q: | Will any other transactions be implemented in connection with the Reorganization? |
A: | Upon completion of the AGAH Sale, NewCo will assume the obligations and covenants of AGA as guarantor of the notes issued by AGAH pursuant to an indenture dated as of April 28, 2010 among AGAH, as issuer, AGA, as guarantor and The Bank of New York Mellon, as trustee. See “The Reorganization”. |
• | 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 three and a half per cent. (3.5%) 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 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 (excluding any requirement that the Takeover Regulation Panel has issued a compliance certificate in respect of the Reorganization in terms of Section 119(4)(b) of the South Africa Companies Act); and |
• | AGA has not, prior to 10:00 a.m. South African Standard Time on the Long Stop Date (as defined herein), exercised its right to cancel the Implementation Agreement as a result of the occurrence of a Material Adverse Effect. |
• | neither AGA nor any other South African subsidiary of the Group will provide any guarantees in order to enable the Reorganization; |
• | NewCo has undertaken to nominate two representatives from South Africa for election by shareholders to the NewCo Board (as defined herein) at each annual general meeting for five years following completion of the Reorganization and to nominate at least one representative from South Africa for election by shareholders to the NewCo Board at each annual general meeting thereafter; |
• | NewCo has given undertakings of the future economic role it will play in South Africa, including that certain core corporate functions servicing the Group will retain a presence in South Africa and there will be no job losses or effective change to AGA’s current footprint in South Africa as a function of the Reorganization; |
• | dividends funded from South African sources and which are due to South African NewCo shareholders will be paid in South Africa; and |
• | the NewCo Ordinary Shares will be secondary listed on a South African stock exchange and NewCo will maintain a South African register on a South African stock exchange through which the NewCo Ordinary Shares held by South Africans will be held. In connection with the secondary listing of the NewCo Ordinary Shares on a South African stock exchange, the NewCo Ordinary Shares listed on a South African stock exchange will be classified as domestic assets for South African exchange control purposes, all trade and settlement of NewCo Ordinary Shares held by South Africans must take place through the South African stock exchange at market related prices in Rand terms, NewCo must appoint an authorized dealer as defined in accordance with South African regulations to report and manage fund flows due to and raised from South African NewCo shareholders in a manner that does not cause any distortions or volatility to relevant exchange rates and South African NewCo shareholders will be required to hold their NewCo Ordinary Shares on a South African stock exchange unless specific prior approval is obtained from the SARB. |
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 AGA GhDSs”. |
Q: | When is the Reorganization expected to be completed? |
A: | The Reorganization is currently expected to be completed on or around September 25, 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 |
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 concluded unanimously 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 and A2X three business days before the Operative Date. Additionally, NewCo expects the NewCo Ordinary Shares and NewCo GhDSs to be listed on the GhSE. It is a condition to the implementation 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 completion of the Reorganization, AGA will cease to be listed on the JSE, the A2X, the NYSE and the GhSE. Additionally, AGA resolved to terminate its listing on the ASX regardless of whether the Reorganization is implemented. AGA received approval to voluntarily delist from the ASX, which occurred on June 27, 2023. |
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 resolved to terminate its listing on the ASX regardless of whether the Reorganization is implemented. AGA received approval to voluntarily delist from the ASX which occurred on June 27, 2023. 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 |
Q: | When and where will the Shareholders’ Meeting be held? |
A: | The Shareholders’ Meeting of the AGA shareholders will be held on August 18, 2023, beginning at 2:00 p.m. South African Standard Time and will be conducted entirely by way of electronic communication, 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 has made 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, by electronic communication or by proxy. In addition, at least three AGA shareholders must be present, by electronic communication 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, by electronic communication 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 August 11, 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 August 7, 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 electronic communication or by proxy. In addition, any such AGA shareholder will be bound by the results of the votes |
Q: | Is my proxy being solicited in connection with the Shareholders’ Meeting? |
A: | We are not asking you for a proxy by means of this prospectus. This is not a proxy statement. The NewCo Ordinary Shares are exempt from the proxy rules of the Exchange Act and the registration statement on Form F-4 of which this prospectus forms a part has been prepared solely to fulfill registration requirements under the Securities Act. A separate Reorganization Circular has been prepared in connection with the Reorganization for the AGA shareholders in accordance with the South African Companies Act, the Companies Regulations and the JSE Listings Requirements. The Reorganization Circular will, among other things, provide AGA shareholders with information regarding the Reorganization and the manner in which they may have their vote recorded in relation to the Reorganization. |
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) by electronic communication 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 by electronic communication 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 by electronic communication 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 by electronic communication 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, subject to the terms and conditions of the AGA Deposit Agreement, 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 12:00 p.m. |
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 by electronic communication. 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 AGA GhDSs, 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 AGA GhDSs 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 Ordinary Shares and AGA GhDSs (in Ghana) | | | NewCo Ordinary Share or NewCo GhDS book-entry interests will be delivered via the Ghana CSD and the Ghana depositary, as applicable |
* | 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 (in South Africa)? |
A: | To surrender your AGA Ordinary Share certificates, you must complete and return the relevant form of surrender and transfer prior to 12:00 p.m. South African Standard Time on September 22, 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 AGA GhDSs”. |
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 AGA GhDSs”. 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 Special Resolution that gave rise to the AGA shareholder’s rights under Section 164 of the South African Companies Act (the “Fair Value Determination Time”), provided that the dissenting AGA shareholders strictly comply with the relevant provisions of the South African Companies Act. Pursuant to Section 164 of the South African Companies Act, appraisal rights in respect of the AGAH Sale and the Scheme may be exercised by any AGA shareholder who (i) notifies AGA in writing prior to the AGAH Sale Special Resolution and/or the Scheme Special Resolution, as applicable, being voted on at the Shareholders’ Meeting that it objects to the AGAH Sale and/or the Scheme, as applicable, and (ii) was present, by electronic communication or by proxy, at the Shareholders’ Meeting and voted against the AGAH Sale Special |
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 June 15, 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 by electronic communication, 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 three and a half per cent. (3.5%) 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 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 (excluding any requirement that the Takeover Regulation Panel has issued a compliance certificate in respect of the Reorganization in terms of Section 119(4)(b) of the South Africa Companies Act); and |
• | AGA has not, prior to 10:00 a.m. South African Standard Time on the Long Stop Date (as defined herein), exercised its right to cancel the Implementation Agreement as a result of the occurrence of a Material Adverse Effect. |
• | neither AGA nor any other South African subsidiary of the Group will provide any guarantees in order to enable the Reorganization; |
• | NewCo has undertaken to nominate two representatives from South Africa for election by shareholders to the NewCo Board at each annual general meeting for five years following completion of the Reorganization and to nominate at least one representative from South Africa for election by shareholders to the NewCo Board at each annual general meeting thereafter; |
• | NewCo has given undertakings of the future economic role it will play in South Africa, including that certain core corporate functions servicing the Group will retain a presence in South Africa and there will be no job losses or effective change to AGA’s current footprint in South Africa as a function of the Reorganization; |
• | dividends funded from South African sources and which are due to South African NewCo shareholders will be paid in South Africa; and |
• | the NewCo Ordinary Shares will be secondary listed on a South African stock exchange and NewCo will maintain a South African register on a South African stock exchange through which the NewCo Ordinary Shares held by South Africans will be held. In connection with the secondary listing of the NewCo Ordinary Shares on a South African stock exchange, the NewCo Ordinary Shares listed on a South African stock exchange will be classified as domestic assets for South African exchange control purposes, all trade and settlement of NewCo Ordinary Shares held by South Africans must take place through the South African stock exchange at market related prices in Rand terms, NewCo must appoint an authorized dealer as defined in accordance with South African regulations to report and manage fund flows due to and raised from South African NewCo shareholders in a manner that does not cause any distortions or volatility to relevant exchange rates and South African NewCo shareholders will be required to hold their NewCo Ordinary Shares on a South African stock exchange unless specific prior approval is obtained from the SARB. |
• | neither AGA nor any other South African subsidiary of the Group will provide any guarantees in order to enable the Reorganization; |
• | NewCo has undertaken to nominate two representatives from South Africa for election by shareholders to the NewCo Board at each annual general meeting for five years following completion of the Reorganization and to nominate at least one representative from South Africa for election by shareholders to the NewCo Board at each annual general meeting thereafter; |
• | NewCo has given undertakings of the future economic role it will play in South Africa, including that certain core corporate functions servicing the Group will retain a presence in South Africa and there will be no job losses or effective change to AGA’s current footprint in South Africa as a function of the Reorganization; |
• | dividends funded from South African sources and which are due to South African NewCo shareholders will be paid in South Africa; and |
• | the NewCo Ordinary Shares will be secondary listed on a South African stock exchange and NewCo will maintain a South African register on a South African stock exchange through which the NewCo Ordinary Shares held by South Africans will be held. In connection with the secondary listing of the NewCo Ordinary Shares on a South African stock exchange, the NewCo Ordinary Shares listed on a South African stock exchange will be classified as domestic assets for South African exchange control purposes, all trade and settlement of NewCo Ordinary Shares held by South Africans must take place through the South African stock exchange at market related prices in Rand terms, NewCo must appoint an authorized dealer as defined in accordance with South African regulations to report and manage fund flows due to and raised from South African NewCo shareholders in a manner that does not cause any distortions or volatility to relevant exchange rates and South African NewCo shareholders will be required to hold their NewCo Ordinary Shares on a South African stock exchange unless specific prior approval is obtained from the SARB. |
| | 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 | | | — | | | — |
Pro forma net assets (book value) per ordinary share | | | 875.54 | | | — | | | — |
| | AGA Ordinary Shares (in ZAR) | | | AGA ADSs (in $) | |
May 11, 2023 | | | 512.67 | | | 26.64 |
June 30, 2023 | | | 397.78 | | | 21.09 |
• | 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 three and a half per cent. (3.5%) 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 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 (excluding any requirement that the Takeover Regulation Panel has issued a compliance certificate in respect of the Reorganization in terms of Section 119(4)(b) of the South Africa Companies Act); 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. |
• | neither AGA nor any other South African subsidiary of the Group will provide any guarantees in order to enable the Reorganization; |
• | NewCo has undertaken to nominate two representatives from South Africa for election by shareholders to the NewCo Board at each annual general meeting for five years following completion of the Reorganization and to nominate at least one representative from South Africa for election by shareholders to the NewCo Board at each annual general meeting thereafter; |
• | NewCo has given undertakings of the future economic role it will play in South Africa, including that certain core corporate functions servicing the Group will retain a presence in South Africa and there will be no job losses or effective change to AGA’s current footprint in South Africa as a function of the Reorganization; |
• | dividends funded from South African sources and which are due to South African NewCo shareholders will be paid in South Africa; and |
• | the NewCo Ordinary Shares will be secondary listed on a South African stock exchange and NewCo will maintain a South African register on a South African stock exchange through which the NewCo Ordinary Shares held by South Africans will be held. In connection with the secondary listing of the NewCo Ordinary Shares on a South African stock exchange, the NewCo Ordinary Shares listed on a South African stock exchange will be classified as domestic assets for South African exchange control purposes, all trade and settlement of NewCo Ordinary Shares held by South Africans must take place through the South African stock exchange at market related prices in Rand terms, NewCo must appoint an authorized dealer as defined in accordance with South African regulations to report and manage fund flows due to and raised from South African NewCo shareholders in a manner that does not cause any distortions or volatility to relevant exchange rates and South African NewCo shareholders will be required to hold their NewCo Ordinary Shares on a South African stock exchange unless specific prior approval is obtained from the SARB. |
• | 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 secondary 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 expected to maintain a presence in South Africa. In addition, the transaction costs and expenses of implementing the Reorganization and the NewCo Notes Distribution, which are largely tied to factors such as the fair market value of AGAH (which in turn is related to, and driven by factors similar to that which determine, AGA’s market capitalization) and the ZAR/USD exchange rate, in each case on the Operative Date, are expected to be non-recurring. Based on current legislation, an assumed market capitalization of AGA of ZAR 186,115 million, an AGA share price of ZAR 444 and a ZAR/USD exchange rate of 18.19, each as of June 19, 2023, these transaction costs and expenses are estimated to be approximately $482 million, representing approximately five per cent. (5%) of the market capitalization of AGA, consisting of tax costs payable in South Africa and Australia of approximately $422 million as well as transaction expenses. See “The Reorganization—Tax Consequences of the Reorganization and the NewCo Notes Distribution for the Group”, “The Reorganization—Narrative Description of the Pro Forma Effects of the Reorganization and the NewCo Notes Distribution” and “Risk Factors—Risks Related to the Reorganization and NewCo Ordinary Shares—The Reorganization and NewCo Notes Distribution will trigger transaction costs and expenses and are not expected to result in any significant cost savings or synergies”. |
• | 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. |
• | neither AGA nor any other South African subsidiary of the Group will provide any guarantees in order to enable the Reorganization; |
• | NewCo has undertaken to nominate two representatives from South Africa for election by shareholders to the NewCo Board at each annual general meeting for five years following completion of the Reorganization and to nominate at least one representative from South Africa for election by shareholders to the NewCo Board at each annual general meeting thereafter; |
• | NewCo has given undertakings of the future economic role it will play in South Africa, including that certain core corporate functions servicing the Group will retain a presence in South Africa and there will be no job losses or effective change to AGA’s current footprint in South Africa as a function of the Reorganization; |
• | dividends funded from South African sources and which are due to South African NewCo shareholders will be paid in South Africa; and |
• | the NewCo Ordinary Shares will be secondary listed on a South African stock exchange and NewCo will maintain a South African register on a South African stock exchange through which the NewCo Ordinary Shares held by South Africans will be held. In connection with the secondary listing of the NewCo Ordinary Shares on a South African stock exchange, the NewCo Ordinary Shares listed on a South African stock exchange will be classified as domestic assets for South African exchange control purposes, all trade and settlement of NewCo Ordinary Shares held by South Africans must take place through the South African stock exchange at market related prices in Rand terms, NewCo must appoint an authorized dealer as defined in accordance with South African regulations to report and manage fund flows due to and raised from South African NewCo shareholders in a manner that does not cause any distortions or volatility to relevant exchange rates and South African NewCo shareholders will be required to hold their NewCo Ordinary Shares on a South African stock exchange unless specific prior approval is obtained from the SARB. |
| | Beneficial | ||||||||||
| | Direct | | | Indirect | |||||||
| | June 15, 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 | | | — | | | — |
S Lawson | | | 2,830 | | | 0.0007 | | | — | | | — |
J Magie | | | — | | | — | | | — | | | — |
MC Richter | | | 10,300 | | | 0.0025 | | | 1,000 | | | 0.0002 |
D Sands | | | — | | | — | | | — | | | — |
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 | | | 8,927 | | | 0.0021 | | | — | | | — |
T Briggs | | | — | | | — | | | — | | | — |
L Eybers(1) | | | — | | | — | | | — | | | — |
MC Godoy | | | 32,643 | | | 0.0078 | | | — | | | — |
L Marwick | | | — | | | — | | | — | | | — |
Total-Members of the Executive Committee | | | 41,570 | | | 0.0099 | | | — | | | — |
| | | | | | | | |||||
Grand Total | | | 67,940 | | | 0.0162 | | | — | | | — |
(1) | Ludwig Eybers will leave his role as Chief Operating Officer on June 30, 2023 and is expected to retire in December 2023. |
| | AGA Share Awards Balance at June 15, 2023(1)(2) | |
Executive Directors | | | |
A Calderon | | | 233,253 |
G Doran | | | 31,844 |
Total-Executive Directors | | | 265,097 |
| |
| | AGA Share Awards Balance at June 15, 2023(1)(2) | |
Members of the Executive Committee | | | |
L Ali | | | 92,902 |
SD Bailey | | | 190,760 |
T Briggs | | | 78,544 |
L Eybers(3) | | | 410,465 |
MC Godoy | | | 130,282 |
L Marwick | | | 144,100 |
Total-Members of the Executive Committee | | | 1,047,053 |
| | ||
Grand Total | | | 1,312,150 |
(1) | The latest expiry date of all share awards granted and outstanding at June 15, 2023 is February 24, 2033. |
(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. |
(3) | Ludwig Eybers will leave his role as Chief Operating Officer on June 30, 2023 and is expected to retire in December 2023. |
• | 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 three and a half per cent. (3.5%) 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 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, AGA and AGAH have executed and delivered to The Bank of New York Mellon, as trustee, in form satisfactory to The Bank of New York Mellon acting reasonably, 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 (excluding any requirement that the Takeover Regulation Panel has issued a compliance certificate in respect of the Reorganization in terms of Section 119(4)(b) of the South Africa Companies Act); 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. |
• | neither AGA nor any other South African subsidiary of the Group will provide any guarantees in order to enable the Reorganization; |
• | NewCo has undertaken to nominate two representatives from South Africa for election by shareholders to the NewCo Board at each annual general meeting for five years following completion of the Reorganization and to nominate at least one representative from South Africa for election by shareholders to the NewCo Board at each annual general meeting thereafter; |
• | NewCo has given undertakings of the future economic role it will play in South Africa, including that certain core corporate functions servicing the Group will retain a presence in South Africa and there will be no job losses or effective change to AGA’s current footprint in South Africa as a function of the Reorganization; |
• | dividends funded from South African sources and which are due to South African NewCo shareholders will be paid in South Africa; and |
• | the NewCo Ordinary Shares will be secondary listed on a South African stock exchange and NewCo will maintain a South African register on a South African stock exchange through which the NewCo Ordinary Shares held by South Africans will be held. In connection with the secondary listing of the NewCo |
• | 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 Ordinary Shares or AGA GhDSs (in Ghana) | | | NewCo Ordinary Share or NewCo GhDS book-entry interests will be delivered via the Ghana CSD and the Ghana depositary, as applicable |
* | 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 hold 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 transferred to Cede & Co. |
• | 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 United States; |
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 May 11, 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 | | | 64 | | | Independent non-executive director | | | 2023 |
Scott Lawson | | | 61 | | | Independent non-executive director | | | 2023 |
Jinhee Magie | | | 55 | | | Independent non-executive director | | | 2023 |
Maria Richter | | | 68 | | | Independent non-executive director | | | 2023 |
Diana Sands | | | 57 | | | 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 (64) | | | | | ||
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 May 11, 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: | | | • | | | Audit and Risk Committee |
| | • | | | Investment Committee | |
| | • | | | Remuneration and Human Resources Committee |
Scott Lawson (61) | | | | | ||
BSc, MBA | | | | | ||
Independent Non-Executive Director | | | | | ||
Appointed (AGA): December 1, 2021 | | | | | ||
Board committee memberships: | | | • | | | Audit and Risk Committee |
| | • | | | Social, Ethics and Sustainability Committee | |
| | • | | | Investment Committee |
Jinhee Magie (55) | | | | | ||
CPA, CA | | | | | ||
Independent Non-Executive Director | | | | | ||
Appointed (AGA): June 1, 2023 | | | | | ||
Board committee memberships: | | | • | | | Audit and Risk Committee |
| | • | | | Investment 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 |
Diana Sands (57) | | | | | ||
CPA, MBA | | | | | ||
Independent Non-Executive Director | | | | | ||
Appointed (AGA): June 1, 2023 | | | | | ||
Board committee memberships: | | | • | | | Social, Ethics and Sustainability Committee |
| | • | | | Remuneration and Human Resources 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 | | | June 15, 2023 | |||
Shareholder | | | Number of AGA Ordinary Shares | | | Percentage of Voting Rights |
Public Investment Corporation of South Africa | | | 78,550,223 | | | 18.72 |
Van Eck Associates Corporation | | | 27,267,584 | | | 6.50 |
BlackRock Advisors LLC | | | 26,273,339 | | | 6.26 |
| | 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 30, 2023 | | | 512.33 | | | 424.68 | | | 28.13 | | | 24.06 |
May 31, 2023 | | | 556.88 | | | 455.80 | | | 30.27 | | | 23.32 |
June 30, 2023 | | | 497.05 | | | 386.86 | | | 25.57 | | | 20.50 |
• | 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 whose shares are fully paid up and represent 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 such person or 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 such person, or any person acting in concert with such person, 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; 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 June 30, 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 to have that nominal or par value and can be issued as | | | 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 $253,659,735 (representing approximately 60 per cent. (60%) of the aggregate nominal amount of NewCo’s expected issued share capital immediately following implementation of the Reorganization), such authority to apply until the date that is five years after the date of adoption of the NewCo Articles. Notwithstanding the preceding sentence, the NewCo Board must comply with the 20% rule in connection with any such allotment. Authority to allot additional shares, or to allot shares after the expiry of this authority, may be granted to the NewCo Board by way of an ordinary resolution of the NewCo shareholders. All NewCo Ordinary Shares have equal voting rights and are entitled to attend and vote at all general meetings of NewCo. |
Authorized Capital and Share Issuances | |||
AGA | | | NewCo |
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. In terms of the South African Companies Act and the | | | 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 50,000 non-voting redeemable preference shares of £1 each, which non-voting redeemable preference shares will be redeemed in full prior to the Operative Date, in connection with the implementation of the Reorganization. No non-voting redeemable preference shares will be outstanding upon completion of the Reorganization. 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 |
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 | | | 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. |
Voting Rights | |||
AGA | | | NewCo |
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, 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 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 |
Voting Rights | |||
AGA | | | NewCo |
| | 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. 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 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 • 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 – | | | 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 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 |
Appraisal Rights / Dissenters’ Rights | |||
AGA | | | NewCo |
• 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. 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 | | | 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. 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 |
Appraisal Rights / Dissenters’ Rights | |||
AGA | | | NewCo |
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. 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. | | | 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. |
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 adoption of the NewCo Articles 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 $253,659,735. 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. | | | 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. |
Action by Written Consent of Shareholders | |||
AGA | | | NewCo |
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. | | |
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 | | | 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 |
Shareholders’ Meetings | |||
AGA | | | NewCo |
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 – • 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 | | | 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; (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 |
Shareholders’ Meetings | |||
AGA | | | NewCo |
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. | | | 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 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’ meeting. | | | 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. 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. |
Election of Directors | |||
AGA | | | NewCo |
| | 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 • 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 |
Election of Directors | |||
AGA | | | NewCo |
| | 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. | |
| | ||
| | The NewCo Articles impose requirements with respect to certain directors nominated for appointment or reappointment (as applicable) at each annual general meeting. Pursuant to the NewCo Articles, the directors shall: • at each annual general meeting during the period from the Operative Date until the date which is five years following such date, nominate for appointment or reappointment (as applicable) a minimum of two representatives from South Africa; and • at each annual general meeting following expiry of the period referred to above, nominate for appointment or reappointment (as applicable) a minimum of one representative from South Africa. |
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 | | | 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 |
Filling of Vacancies | |||
AGA | | | NewCo |
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. | | | (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 | |||
AGA | | | NewCo |
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 | | | NewCo is required to put in place a directors’ remuneration policy containing details of the components |
Board Remuneration | |||
AGA | | | NewCo |
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. | | | 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 plc—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 • to disclose or account for secret profits. | | | 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 objectively (i.e. was the director’s conduct that of a reasonably diligent person possessing the |
Fiduciary Duties | |||
AGA | | | NewCo |
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. | | | 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 | | | 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 |
Dividends | |||
AGA | | | NewCo |
• 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 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. | | | 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 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. |
Dividends | |||
AGA | | | NewCo |
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 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 | | | 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 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 |
Dividends | |||
AGA | | | NewCo |
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. | | | 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 | | | 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 |
Liquidation | |||
AGA | | | NewCo |
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). | | | 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 | | | 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 |
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 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 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. |
Reduction of Share Capital | |||
AGA | | | NewCo |
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). | | |
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 | | | 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 |
Limitation of Directors’ Liability / Indemnification of Officers and Directors | |||
AGA | | | NewCo |
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 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 | | | 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”) 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. NewCo can therefore indemnify directors against certain third-party actions such as class actions or actions following mergers or acquisitions or share issues; • 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 |
Limitation of Directors’ Liability / Indemnification of Officers and Directors | |||
AGA | | | NewCo |
• 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 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. | | | • purchase and maintain insurance against any liability for any director or former director of NewCo or of any associated company. 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. | | | 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 |
Shareholder Votes on Certain Reorganizations | |||
AGA | | | NewCo |
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; • 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 | | | 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 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. |
Shareholder Votes on Certain Reorganizations | |||
AGA | | | NewCo |
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. | | |
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 5 per cent. (5%) or more but less than 30 per cent. (30%) of the market capitalization, a category 2 transaction, AGA must issue an announcement setting out certain prescribed information as required in terms of the JSE Listings Requirements. If the percentage ratio is 30 per cent. (30%) or more or if the total consideration is not subject to any maximum, a category 1 transaction, AGA must issue a transaction 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 and AGA must also issue an announcement that contains all of the information that is required to be contained in the announcement for a category 2 transaction. In addition, with respect to category 1 and category 2 transactions, the issuer must publish an announcement containing the full details of the transaction immediately after the terms of the transaction have been agreed. 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 | | | The NYSE Listing Rules do not require shareholder approval for the equivalent of category 1 or category 2 transactions other than in the event of an issuance of shares in connection with a transaction which is subject to the 20% rule described under the heading “Authorized Capital and Share Issuances”. 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 |
Certain Provisions Relating to Business Combinations | |||
AGA | | | NewCo |
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; 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 | | | 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. 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 in their capacity as such) 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 in their capacity as such) (i) acquires interest in NewCo’s shares that, when taken together with shares in which such person or 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 |
Certain Provisions Relating to Business Combinations | |||
AGA | | | NewCo |
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 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 | | | 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 such person, or any person acting in concert with such person, 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 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 |
Certain Provisions Relating to Business Combinations | |||
AGA | | | NewCo |
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; • 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 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. 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. Within 28 days of any announcement that first identifies it as an offeror, an offeror must either (i) announce its firm intention to make an offer or (ii) announce that it does not intend to make an offer. 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 |
Certain Provisions Relating to Business Combinations | |||
AGA | | | NewCo |
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 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. | | | 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. NewCo has full authority to determine the application of the offer provisions embedded in the NewCo Articles including as to the deemed application of relevant parts of the Takeover Code (as if it applied to NewCo). |
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. | | | 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 |
Corporate Governance | |||
AGA | | | NewCo |
AGA applies the principles of the King IV Report on Corporate Governance for South Africa, 2016. | | | 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; • 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 | | | 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 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. |
Rights of Inspection | |||
AGA | | | NewCo |
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. | | |
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 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 | | | 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 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 |
Derivative Claims | |||
AGA | | | NewCo |
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; • 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. | | | 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. |
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 | | | 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 |
Shareholder Suits | |||
AGA | | | NewCo |
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. | | | 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 | | | 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. |
Disclosure of Interest in Shares | |||
AGA | | | NewCo |
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 Ordinary Shares issued by AGA together with the extent of those beneficial interests. | | | 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 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 | | | 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 |
Conflict of Interest Transactions | |||
AGA | | | NewCo |
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 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. | | | 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 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. |
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INTERPRETATION AND PRELIMINARY |
1.1. | The following terms shall have the meanings ascribed to them hereunder and cognate expressions shall have corresponding meanings, namely: |
1.1.1. | “A2X” means A2X Solutions Proprietary Limited (Registration No.: 2021/439627/07), a private company duly incorporated in accordance with the company laws of South Africa, or where the context requires, the South African securities exchange known as the A2X which is operated by A2X Solutions Proprietary Limited; |
1.1.2. | “Acceptance Deadline” means the date contemplated in section 164(12)(b) of the Companies Act, it being recorded that such date is the date on which the offer (made by AGA in terms of section 164(11) of the Companies Act) will lapse; |
1.1.3. | “ADS Depositary” means The Bank of New York Mellon Corporation, a New York banking corporation, which acts as the depositary in respect of the AGA ADS Program; |
1.1.4. | “AFSA” means the Arbitration Foundation of Southern Africa or its successor in title; |
1.1.5. | “AGA” means AngloGold Ashanti Limited (Registration No.: 1944/017354/06), a public company duly incorporated in accordance with the company laws of South Africa; |
1.1.6. | “AGA ADR” means an American depositary receipt, being a certificate evidencing an AGA ADS; |
1.1.7. | “AGA ADS Holder” means a holder of AGA ADSs; |
1.1.8. | “AGA ADS Program” means the American Depositary Share Program of AGA governed by the AGA Deposit Agreement; |
1.1.9. | “AGA ADSs” means American depositary shares representing AGA Shares deposited or subject to deposit by AGA with the ADS Depositary under the AGA Deposit Agreement at a ratio of 1 (one) AGA Share to 1 (one) such American depositary share, which are listed and traded on the NYSE; |
1.1.10. | “AGA Board” means the board of directors of AGA, as constituted from time to time; |
1.1.11. | “AGA Deposit Agreement” means the amended and restated deposit agreement (dated as of 3 June 2008) entered into between AGA, the ADS Depositary and all owners and beneficial owners from time to time of AGA ADSs issued thereunder, as amended from time to time; |
1.1.12. | “AGA Group” means, collectively, AGA and its Subsidiaries, from time to time; |
1.1.13. | “AGA Share” means an ordinary share, with a par value of R0.25 (twenty five cents), in the issued share capital of AGA, which is listed for trading with ISIN No. ZAE 000043485 on, inter alia, the Main Board of the securities exchange operated by the JSE; |
1.1.14. | “AGA Shareholder” means the holder of an AGA Share, who is registered as such in the Register; |
1.1.15. | “AGA Shareholders’ Circular” means the combined circular to be prepared and distributed by AGA (on behalf of AGA and Listco) to the AGA Shareholders, in respect of the Scheme, including a notice of a shareholders’ meeting to be convened by AGA for the purpose, inter alia, of approving the Scheme in terms of section 114 of the Companies Act and approving the AGAH Sale in terms of section 112 of the Companies Act; |
1.1.16. | “AGA Shareholders’ Meeting” means the meeting of the AGA Shareholders, to be convened by AGA, for the AGA Shareholders to, inter alia, approve the Scheme; |
1.1.17. | “AGAH” means AngloGold Ashanti Holdings plc (Registration No.: 001177V), a company duly incorporated in accordance with the company laws of the Isle of Man; |
1.1.18. | “AGAH Sale” shall have the meaning ascribed thereto in the AGAH Sale Offer Document; |
1.1.19. | “AGAH Sale Effective Date” means the date, after the Fulfilment Date, on which Step 2 is to be implemented, being the later of: (a) the calendar day after the date of the Listco Spin-Off Completion (it being recorded that the Listco Spin-Off Completion is the date on which Step 1 is implemented); (b) the AGAH Sale Offer Acceptance Date; (c) the date which the AGA Shareholders’ Circular specifies is to be the date on which Step 2 is to be implemented; or (d) such other date as may be agreed in writing between the Parties; |
1.1.20. | “AGAH Sale Offer” shall have the meaning ascribed to the term “Offer” in the AGAH Sale Offer Document; |
1.1.21. | “AGAH Sale Offer Acceptance Date” shall have the meaning ascribed to the term “Offer Acceptance Date” in the AGAH Sale Offer Document (it being recorded that this is the date, if any, on which AGA countersigns the AGAH Sale Offer Document to accept the AGA Sale Offer therein); |
1.1.22. | “AGAH Sale Offer Document” means the document titled “Irrevocable Offer to Purchase”, signed by Listco and delivered to AGA on or about the Signature Date, in terms of which, inter alia, Listco irrevocably offers, in favour of AGA, to purchase all (and not part only) of the shares held by AGA in AGAH (constituting 100% of the issued share capital of AGAH) in consideration for the issue by Listco to AGA of zero coupon unsecured loan notes (it being recorded that, in the AGAH Sale Offer Document, the aforesaid shares in AGAH are defined as the “AGAH Sale Shares” and the aforesaid loan notes are defined as the “Purchase Consideration Notes”); |
1.1.23. | “AGAH Sale Resolutive Condition” shall have the meaning ascribed thereto in the AGAH Sale Offer Document; |
1.1.24. | “AGAH Sale Shares” shall have the meaning ascribed thereto in the AGAH Sale Offer Document; |
1.1.25. | “Agreement” means this implementation agreement, together with all annexures hereto (if any), as may be amended, revived, replaced and/or reinstated from time to time; |
1.1.26. | “Business Day” means a day which is not a Saturday, Sunday or public holiday gazetted in South Africa, the United Kingdom and/or the United States from time to time; |
1.1.27. | “Cede” means Cede & Co., a New York general partnership organised and maintained by DTC; |
1.1.28. | “Certificated AGA Shareholder” means an AGA Shareholder, whose AGA Shares have not been Dematerialised and whose ownership of such AGA Shares is evidenced by one or more physical share certificates; |
1.1.29. | “CIPC” means the Companies and Intellectual Property Commission of South Africa established by section 185 of the Companies Act; |
1.1.30. | “Companies Act” means the Companies Act No. 71 of 2008 of South Africa; |
1.1.31. | “Conditions Precedent” means the conditions precedent contained in clause 4.1; |
1.1.32. | “Conversion” shall have the meaning ascribed thereto in clause 2.9.1; |
1.1.33. | “Credit Support Agreement” means an agreement titled “Credit Support Agreement” concluded or to be concluded (on or before the date on, and before the time at, which Step 4 is implemented) between AGAH and AGA, in terms of which, inter alia, AGAH undertakes to provide and/or provides credit support to AGA by way of a loan facility to enable AGA to meet the requirements of the solvency and liquidity test (as set out in section 4 of the Companies Act); |
1.1.34. | “CS Depositary” means Computershare Trust Company, N.A., a national banking association duly incorporated in accordance with the laws of the United States; |
1.1.35. | “CS Depositary Nominee” means GTU Ops Inc., a company duly incorporated in accordance with the laws of the United States, operating as nominee to hold Listco Shares for the CS Depositary; |
1.1.36. | “CS Listco DRs” means the depositary receipts created and issued by the CS Depositary in respect of the underlying Listco Shares held from time to time by the CS Depositary Nominee; |
1.1.37. | “CS SA Nominee” means Computershare Nominees Proprietary Limited (Registration No.: 1999/008543/07), a private company duly incorporated in accordance with the company laws of South Africa; |
1.1.38. | “CSDP” means a person authorised by a licensed central securities depository to perform custody and administration services or settlement services or both, in terms of the central securities depository rules published in terms of the FMA; |
1.1.39. | “Dematerialise” means the process by which securities held in certificated form are converted to or held in electronic form as uncertificated securities and recorded in the sub-register of dematerialised shareholders, maintained by a CSDP and forming part of the Register; |
1.1.40. | “Dematerialised AGA Shareholder” means an AGA Shareholder who holds Dematerialised AGA Shares; |
1.1.41. | “Dematerialised AGA Shares” means AGA Shares which have been Dematerialised; |
1.1.42. | “Distributed Notes” shall have the meaning ascribed thereto in clause 2.8.1; |
1.1.43. | “Documents of Title” means original versions of share certificates, transfer deeds, balance receipts or any other physical documents constituting or representing valid legal title to the AGA Shares; |
1.1.44. | “DTC” means The Depository Trust Company, a limited purpose trust company established under the New York Banking Law; |
1.1.45. | “ECTA” means the Electronic Communications and Transactions Act No. 25 of 2002 of South Africa; |
1.1.46. | “Election” shall have the meaning ascribed thereto in clause 2.9.2; |
1.1.47. | “Encumbrance” includes any pledge, lien, notarial bond, hypothecation, security, cession, charge, assignment or any agreement or arrangement, whether conditional or not and whether relating to existing or future assets, having the effect of providing a security interest or preferential treatment to a person over another person’s assets (including set-off, retention or reciprocal fee arrangements, or any arrangement to give effect to any form of security interest or preferential treatment to a person over another person’s assets); and “Encumber” shall be construed accordingly; |
1.1.48. | “Exchange Act” means the U.S. Securities Exchange Act of 1934; |
1.1.49. | “Exchange Control Authorities” means, in South Africa, the Financial Surveillance Department of the SARB responsible for the administration of exchange control on behalf of the Minister of Finance, or an officer of the Department of National Treasury who, by virtue of the division of work in such department, deals with the matter on the authority of the Minister of Finance; |
1.1.50. | “FMA” means the Financial Markets Act No. 19 of 2012 of South Africa; |
1.1.51. | “Founder Share” means the 1 (one) Listco Share which AGA holds in Listco as at the Signature Date, which Listco Share was issued to AGA upon the incorporation of Listco; |
1.1.52. | “Fulfilment Date” means the date on which the last of the Conditions Precedent has been fulfilled or waived, as the case may be; |
1.1.53. | “GBP” or “Pounds” means the British Pound Sterling, being the lawful currency of the United Kingdom; |
1.1.54. | “Gifted” or “Gifting” means a transfer for nil consideration; |
1.1.55. | “Immediately Operative Provisions” shall have the meaning ascribed thereto in clause 4.1; |
1.1.56. | “Implementation Deadline” shall have the meaning ascribed thereto in clause 14.2; |
1.1.57. | “Independent Board” means those members of the AGA Board who AGA has indicated are to constitute the “independent board”, as contemplated in regulation 81(j) of the Regulations, for the purposes of, inter alia, the Scheme; |
1.1.58. | “Independent Expert” shall have the meaning ascribed thereto in clause 4.1.3; |
1.1.59. | “JSE” means JSE Limited (Registration No.: 2005/022939/06), a public company duly incorporated in accordance with the company laws of South Africa, or where the context requires, the securities exchange known as the Johannesburg Stock Exchange which is operated by JSE Limited; |
1.1.60. | “JSE Listings Requirements” means the listings requirements of the Johannesburg Stock Exchange published from time to time by the JSE; |
1.1.61. | “Listco” means AngloGold Ashanti (UK) Limited (Registration No.: 14654651), a private limited company duly incorporated in accordance with the laws of England and Wales, to be reregistered as a public company and renamed AngloGold Ashanti plc; |
1.1.62. | “Listco Affiliates” means Scheme Participants who are affiliates of Listco within the meaning of Rule 144 under the Securities Act; |
1.1.63. | “Listco Articles” shall have the meaning ascribed thereto in clause 2.2.3; |
1.1.64. | “Listco Group” means, collectively, Listco and its Subsidiaries, from time to time; |
1.1.65. | “Listco Share” means a USD 1 (1 Dollar) ordinary share in the share capital of Listco and “Listco Shares” shall be construed accordingly; |
1.1.66. | “Listco Spin-Off Completion” shall have the meaning ascribed thereto in clause 6.4; |
1.1.67. | “Listco Transfer Agent” means Computershare Trust Company, N.A., a national banking association duly incorporated in accordance with the laws of the United States; |
1.1.68. | “Long Stop Date” shall have the meaning ascribed thereto in clause 4.1; |
1.1.69. | “Material Adverse Effect” means any change, event, effect, fact, circumstance, development or occurrence (whether known, unknown or reasonably foreseeable by AGA on the Signature Date, and including any change, event, effect, fact, circumstance, development or occurrence relating to taxation) that, individually or in the aggregate with other changes, events, effects, facts, circumstances, developments or occurrences, in the reasonable opinion of AGA (a) relates to the Reorganisation and decreases, or could reasonably be expected to decrease, the free cash flow of the AGA Group or the Listco Group by at least USD 150,000,000 (one hundred and fifty million Dollars), (b) prevents or impairs or delays (for a period of at least 60 days), or could reasonably be expected to prevent or impair or delay (for a period of at least 60 days), the implementation of the Reorganisation or the ability of either Party to perform its obligations under this Agreement, or (c) increases, or could reasonably be expected to increase, the costs to the AGA Group or the Listco Group of implementing the Reorganisation by at least USD 150,000,000 (one hundred and fifty million Dollars); |
1.1.70. | “Material Adverse Effect Long Stop” means 10h00 on the Long Stop Date; |
1.1.71. | “NYSE” means the New York Stock Exchange; |
1.1.72. | “Operative Date” means the date, after the Fulfilment Date, on which Step 3 is to be implemented, being the later of: (a) the date which the AGA Shareholders’ Circular specifies is to be the date on which Step 3 is to be implemented; (b) the Business Day after the date, if any, on which the AGAH Sale has been implemented (which sale, it is recorded, shall occur after the Listco Spin-Off Completion); or (c) such other date as may be agreed in writing between the Parties; |
1.1.73. | “Parties” means AGA and Listco, either individually or collectively, as required by the context of the Agreement; |
1.1.74. | “PDS Exit Date” shall have the meaning ascribed thereto in clause 9; |
1.1.75. | “PDS Scheme Consideration Shares” shall have the meaning ascribed thereto in clause 9.3; |
1.1.76. | “PDS Scheme Equivalent Fraction” means the fraction derived from dividing the number of Scheme Consideration Shares by the number of Scheme Shares; |
1.1.77. | “PDS Scheme Shares” shall have the meaning ascribed thereto in clause 9.1; |
1.1.78. | “PDS Step 1 Equivalent Fraction” means the fraction derived from dividing the number of Subscription Shares by the number of Scheme Shares; |
1.1.79. | “PDS Step 1 Equivalent Shares” shall have the meaning ascribed thereto in clause 9.5; |
1.1.80. | “Potentially Failed CP” shall have the meaning ascribed thereto in clause 4.5.1; |
1.1.81. | “Pre-Steps” and “Pre-Step” shall have the meaning ascribed thereto in clause 2.2; |
1.1.82. | “Previously Dissenting Shareholders” means, in respect of the Reorganisation, those AGA Shareholders who: (i) have timeously delivered an appraisal rights demand to AGA in terms of section 164(5) to (8) of the Companies Act; and (ii) have had their rights reinstated in terms of section 164(10) of the Companies Act after the Scheme Record Time but before the Acceptance Deadline; |
1.1.83. | “Purchase Consideration Notes” shall have the meaning ascribed thereto in the AGAH Sale Offer Document; |
1.1.84. | “Rand” or “R” means the South African Rand, being the lawful currency of South Africa; |
1.1.85. | “Redeemable Preference Shares” means the 50,000 (fifty thousand) redeemable preference shares of GBP 1 (one Pound) nominal value each to be issued in the share capital of Listco; |
1.1.86. | “Register” means, collectively, AGA’s: (a) “securities register” as defined in section 1 of the Companies Act; and (b) “uncertificated securities register” as defined in section 1 of the Companies Act (which the Companies Act stipulates forms part of the “securities register”); |
1.1.87. | “Regulations” means the regulations published in terms of section 223 of the Companies Act; |
1.1.88. | “Reorganisation” shall have the meaning ascribed thereto in clause 2.3; |
1.1.89. | “Retained Notes” shall have the meaning ascribed thereto in clause 2.8.1; |
1.1.90. | “SARB” means the South African Reserve Bank; |
1.1.91. | “Scheme” means the scheme of arrangement in terms of section 114 of the Companies Act, to be proposed by AGA to the AGA Shareholders, in terms of which, inter alia, the Scheme Participants will exchange their Scheme 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 allotted and issued to the CS Depositary Nominee (to be held, ultimately, for the benefit of the Scheme Participants by the CS SA |
1.1.92. | “Scheme Consideration Shares” means such number of new Listco Shares as equate to the total number of Scheme Shares less the number that equates to the total number of Subscription Shares; |
1.1.93. | “Scheme Participants” means the AGA Shareholders who are registered as such in the Register at the Scheme Record Time and are entitled (as against AGA) to receive the Scheme Consideration Shares (being those AGA Shareholders who are registered as such in the Register at the Scheme Record Time and who, by the Scheme Record Time, either: (a) have not timeously delivered an appraisal rights demand to AGA in terms of section 164(5) to (8) of the Companies Act; or (b) have timeously delivered an appraisal rights demand to AGA in terms of section 164(5) to (8) of the Companies Act but have had their rights reinstated in terms of section 164(10) of the Companies Act); |
1.1.94. | “Scheme Record Time” means 17h00 on the date upon which an AGA Shareholder must be recorded in the Register, in order to participate in the Scheme and to consequently receive the Scheme Consideration Shares, being the “record date” set by the AGA Board for such purpose in terms of section 59(1) of the Companies Act; |
1.1.95. | “Scheme Shares” means all of the AGA Shares held by the Scheme Participants at the Scheme Record Time; |
1.1.96. | “SEC” means the Securities and Exchange Commission of the United States; |
1.1.97. | “Securities Act” means the U.S. Securities Act of 1933; |
1.1.98. | “Signature Date” means the date on which the Party to this Agreement signing last in time signs this Agreement; |
1.1.99. | “South Africa” means the Republic of South Africa, as constituted from time to time; |
1.1.100. | “Step” means, collectively or individually, as the context may require, each of the 5 (five) steps contemplated in clause 2, which are respectively labelled (and referred to in this Agreements as) “Step 1” (constituting “Step 1A” and “Step 1B”), “Step 2”, “Step 3”, “Step 4” and “Step 5”, respectively; |
1.1.101. | “Step 1 Direction” shall have the meaning ascribed thereto in clause 2.4.1.2; |
1.1.102. | “Strate” means Strate Proprietary Limited (Registration No.: 1998/022242/07), a private company duly incorporated in accordance with the company laws of South Africa; |
1.1.103. | “Subscription” means the transaction in terms of which AGA will subscribe for the Subscription Shares in consideration for the payment by AGA of an amount equal to the Subscription Consideration; |
1.1.104. | “Subscription Consideration” means USD 46,000 (forty six thousand Dollars) to be paid by AGA to Listco in consideration for the Subscription Shares; |
1.1.105. | “Subscription Date” means the date, after the Fulfilment Date, on which the Subscription is to be implemented, being the later of: (a) the calendar day after the date on which the last of the Pre-Steps is implemented; (b) the date which the AGA Shareholders’ Circular specifies is to be the date on which the Subscription is to be implemented; or (c) such other date as may be agreed in writing between the Parties; |
1.1.106. | “Subscription Shares” means 46,000 (forty six thousand) Listco Shares to be allotted and issued in Step 1A; |
1.1.107. | “Subsidiary” means a subsidiary of a company as contemplated by section 3 of the Companies Act including, for the avoidance of doubt, entities registered and incorporated outside of South Africa which would otherwise constitute a subsidiary if such entities were registered and incorporated in South Africa; |
1.1.108. | “Takeover Regulation Panel” means the Takeover Regulation Panel of South Africa, established as such in terms of section 196 of the Companies Act; |
1.1.109. | “Three Steps” means, collectively or individually, as the context may require, each of the Steps labelled “Step 1” (constituting “Step 1A” and “Step 1B”), “Step 2” and “Step 3”, respectively (but excluding “Step 4” and “Step 5”), which 3 (three) Steps constitute the Reorganisation; |
1.1.110. | “Transfer Secretaries” means Computershare Investor Services Proprietary Limited (Registration No.: 2004/003647/07), a private company incorporated under the company laws of South Africa; |
1.1.111. | “United Kingdom” means the United Kingdom of Great Britain and Northern Ireland, as constituted from time to time; |
1.1.112. | “United States” or “U.S.” means the United States of America, as constituted from time to time; |
1.1.113. | “USD” or “Dollar” means the United States Dollar, being the lawful currency of the United States; and |
1.1.114. | “U.S. Exchange Agent” shall have the meaning ascribed thereto in clause 11.3.3. |
1.2. | Unless inconsistent with the context in which it is used in this Agreement, a word or an expression which denotes: |
1.2.1. | any one gender include the other of masculine, feminine and neuter; |
1.2.2. | the singular include the plural and vice versa; and |
1.2.3. | natural persons include created entities (corporate or unincorporate) and the state and vice versa. |
1.3. | If any provision in a definition is a substantive provision, conferring rights or imposing obligations on either Party, effect shall be given thereto as if such provision were a substantive provision in the body of the Agreement, notwithstanding that such provision is only contained in the relevant definition. |
1.4. | Where any term is defined within the context of any particular clause in this Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall have the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that that term has not been defined above in this clause 1. |
1.5. | The headings to the paragraphs in this Agreement shall not be used in the interpretation thereof. |
1.6. | When any number of days is prescribed in this Agreement, the same shall be reckoned exclusively of the first and inclusively of the last day, unless the last day falls on a day that is not a Business Day, in which case the last day shall be the next succeeding Business Day. |
1.7. | When any number of years is prescribed in this Agreement, the same shall be calculated from a specific day of a calendar month in a specific year, to the numerically corresponding day and calendar month in the following year (or years, as the case may be), less 1 (one) day, unless the last day falls on a day that is not a Business Day, in which case the last day shall be the next succeeding Business Day. |
1.8. | Any reference to business hours shall be construed as being the hours between 08h00 and 17h00 on any Business Day. Any reference to time shall be based upon South African Standard Time. |
1.9. | The rule of construction that, in the event of ambiguity, the contract will be interpreted against the party responsible for the drafting thereof shall not apply in the interpretation of this Agreement. |
1.10. | Any references to a statutory provision or enactment shall be a reference to such provision or enactment and to any regulation or order made under such provision or enactment, as in force at any time relevant to this Agreement. |
1.11. | Save as may expressly otherwise be provided, any reference in this Agreement to “in writing”, “written” or the like shall include any form of written recordal, including e-mails, letters, memoranda, notes and formal agreements. |
INTRODUCTION |
2.1. | The Parties record their intentions as set out in this clause 2. |
2.2. | Pre-Steps: As at the Signature Date, Listco has been incorporated with, and AGA has subscribed for and been issued, the Founder Share. Prior to the Reorganisation: |
2.2.1. | AGA will subscribe for, and Listco will issue to AGA, 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); |
2.2.2. | Listco will undertake 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 Listco will apply to funding the redemption of the Redeemable Preference Shares as set out in clause 2.4.2.1 below; and |
2.2.3. | Listco will re-register as a public limited company and adopt the articles of association of a public limited company (the “Listco Articles”), |
2.3. | Following the completion of the Pre-Steps, the Parties intend to enter into a series of inter-conditional transactions in order to procure that, following the implementation of the Three Steps, Listco, having been incorporated in the United Kingdom, is established as the new holding company of the AGA Group, with its primary listing on the NYSE and with secondary listings on the JSE, A2X and the Ghana Stock Exchange (the “Reorganisation”). It is contemplated that the Reorganisation will comprise the three inter-conditional steps set out in clauses 2.4, 2.5 and 2.6 below. |
2.4. | Step 1: |
2.4.1. | Step 1A: |
2.4.1.1. | AGA shall pay the Subscription Consideration to Listco; |
2.4.1.2. | AGA shall effect a distribution in specie to the Scheme Participants, pursuant to which AGA shall simultaneously direct Listco to allot and issue the Subscription Shares to the CS Depositary Nominee (as nominee for the CS Depositary) to be held, ultimately, for the benefit of the Scheme Participants by the CS SA Nominee in the form of CS Listco DRs (the “Step 1 Direction”); |
2.4.1.3. | as soon as practicable following receipt of the Step 1 Direction, Listco shall allot and issue the Subscription Shares in accordance with the Step 1 Direction; and |
2.4.1.4. | having issued the Subscription Shares to the CS Depositary Nominee, Listco will procure that the CS Depositary will in turn issue an equal number of CS Listco DRs, each representing an entitlement to a Subscription Share, to the CS SA Nominee who will hold such CS Listco DRs on behalf of the Scheme Participants in their respective pro rata portions. |
2.4.2. | Step 1B: Forthwith after completion of Step 1A: |
2.4.2.1. | Listco will redeem the Redeemable Preference Shares at nominal value, as a result of which the Redeemable Preference Shares will then automatically be treated as cancelled under English law; and |
2.4.2.2. | AGA will Gift the Founder Share to Listco and Listco will then take the necessary steps to cancel the Founder Share. |
2.4.3. | After the implementation of Step 1, the registered shareholder of Listco will be the CS Depositary Nominee (with the respective pro rata portions of the Subscription Shares to be held, ultimately, for the benefit of the Scheme Participants by the CS SA Nominee in the form of CS Listco DRs) and AGA will no longer hold any shares in Listco. |
2.5. | Step 2: Subject to the completion of Step 1, it is the present non-binding intention of AGA, without being bound to do so, to accept the AGAH Sale Offer and to sell all of the shares that it holds in AGAH (being the AGAH Sale Shares and constituting the entire issued share capital of AGAH) to Listco, in consideration for the issue by Listco to AGA of the Purchase Consideration Notes in accordance with the provisions of the AGAH Sale Offer Document. The aforesaid sale (being the AGAH Sale) will require the approval of the AGA Shareholders in terms of section 112 of the Companies Act. |
2.6. | Step 3: |
2.6.1. | Subject to the completion of Step 2, AGA will implement the Scheme, in terms of which the Scheme Participants will exchange their AGA 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 the CS Depositary Nominee (to be held, ultimately, for the benefit of the Scheme Participants by the CS SA Nominee in the form of CS Listco DRs) by Listco. The CS Depositary Nominee will hold the Scheme Consideration Shares as nominee for the CS Depositary. Listco will procure that the CS Depositary will in turn issue an equal number of CS Listco DRs, each representing an entitlement to a Scheme Consideration Share, to the CS SA Nominee who will hold such CS Listco DRs on behalf of the Scheme Participants in their respective pro rata portions. |
2.6.2. | Listco will procure that the CS SA Nominee will: (a) instruct the CS Depositary to (i) cancel the relevant proportion of all CS Listco DRs attributable to Scheme Participants who are not Listco Affiliates and (ii) procure that the CS Depositary Nominee transfers the legal title to the corresponding number of Subscription Shares and Scheme Consideration Shares to Cede (as nominee for DTC). Cede will hold such Listco Shares on its customary terms for, ultimately, the benefit of the Scheme Participants, with the relevant DTC participant being credited by DTC with a corresponding number of book-entry interests in respect of the Listco Shares to which they are entitled; and (b) transfer the CS Listco DRs attributable to Scheme Participants who are Listco Affiliates to such Listco Affiliates. |
2.7. | After the Reorganisation has been implemented: (a) the Scheme Participants will beneficially hold the entire issued share capital of Listco; (b) Listco, in turn, will hold the entire issued share capital of each of AGAH and AGA (save in respect of those AGA Shareholders who: (i) have timeously delivered an appraisal rights demand to AGA in terms of section 164(5) to (8) of the Companies Act; and (ii) have not had their rights reinstated in terms of section 164(10) of the Companies Act by the Scheme Record Time); and (c) the Purchase Consideration Notes issued by Listco will be held by AGA. |
2.8. | Step 4: Following the Reorganisation: |
2.8.1. | AGA intends to declare as a distribution in specie to Listco (“Step 4 Distribution”) a portion of the Purchase Consideration Notes (“Distributed Notes”) and retain the balance of the Purchase Consideration Notes (“Retained Notes”). AGA intends that the: (a) Retained Notes shall be equal to such number of the Purchase Consideration Notes that, in aggregate, have a face value equal to the aggregate amount of dividends tax that will be payable by AGA as a result of the Step 4 Distribution; and (b) Distributed Notes shall be equal to the maximum number of the Purchase Consideration Notes that can be distributed whilst ensuring that the Retained Notes are sufficient to meet the requirements of the aforesaid (a). The Distributed Notes will be extinguished by operation of law by virtue of Listco being both the issuer and holder of the Distributed Notes; and |
2.8.2. | in order to ensure that when AGA makes the Step 4 Distribution it is solvent and liquid for purposes of section 46 of the Companies Act, it intends, before declaring the Step 4 Distribution, to enter into the Credit Support Agreement with AGAH. |
2.9. | Step 5: Following the Reorganisation: |
2.9.1. | AGA will: (a) adopt the necessary special resolutions to approve the amendment of its memorandum of incorporation 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 (b) file the aforementioned amended memorandum of incorporation and special resolutions, together with a notice of amendment, with CIPC in order to obtain an amended registration certificate (the “Amended Certificate”) from CIPC (in terms of section 16(9)(a), as read with section 16(8)(b)(i), of the Companies Act). Upon the issue of the Amended Certificate by CIPC, the aforesaid conversion shall be effective on the date (the “Conversion Date”) set out in the Amended Certificate (the “Conversion”); and |
2.9.2. | AGA will make an election on IRS Form 8832 to be treated as disregarded from Listco for U.S. federal tax purposes effective as of the Conversion Date (the “Election”). |
2.10. | Accordingly, the Parties have entered into this Agreement to record in writing the terms upon and conditions subject to which the Parties will give effect to and implement the Pre-Steps, Step 1, Step 3, Step 4 and Step 5, with Step 2 being regulated in terms of the AGAH Sale Offer Document. |
SEQUENCE OF STEPS |
3.1. | The Parties hereby agree that the Reorganisation will be constituted by the Three Steps and that the Pre-Steps, Three Steps, Step 4 and Step 5 will be implemented in the order in which they are described in clause 2, with each Pre-Step and Step only being implemented after all of the preceding Pre-Steps and Steps have been fully implemented and with each of the Three Steps being implemented in accordance with the timing thereof set out in the AGA Shareholders’ Circular. |
3.2. | The Parties agree that the failure or inability to implement any one or more of the Three Steps shall result in the failure of all of the Three Steps comprising the Reorganisation. In this regard, if either Step 2 or Step 3 are not ultimately implemented, whilst Step 1 (or Step 1 and Step 2, as applicable) have been implemented, the Parties agree that the unwind mechanism in clause 14 shall apply and undertake to take all such actions as may be required to give effect to such unwind mechanism. |
3.3. | The intention of the Parties is that the Three Steps, Step 4 and Step 5, collectively, be treated as a tax-free F reorganization for U.S. federal income tax purposes pursuant to Section 368(a)(1)(F) of the Internal Revenue Code of 1986 (26 U.S.C.). |
CONDITIONS PRECEDENT AND MATERIAL ADVERSE EFFECT |
4.1. | The whole of this Agreement, save for the provisions of clause 1, clause 2.2, this clause 4, clause 5 and clauses 17 to 32 (both inclusive), which shall be of immediate force and effect on the Signature Date (“Immediately Operative Provisions”), is subject to the fulfilment or waiver (as the case may be) of the following suspensive conditions, namely that, by no later than February 29, 2024 (or such later date that the Parties may agree to in writing prior to such date) (“Long Stop Date”): |
4.1.1. | the AGAH Sale Offer Document has been signed by Listco and delivered to AGA; |
4.1.2. | Listco has procured that the Listco Shares are approved for listing on the NYSE, subject only to official notice of issuance; |
4.1.3. | an independent expert as referred to in section 114(2) of the Companies Act and (to the extent required by the Takeover Regulation Panel) Regulation 90 (the “Independent Expert”) has been retained by AGA and the Independent Expert has issued a final report dealing with the matters listed in section 114(3) of the Companies Act and (to the extent required by the Takeover Regulation Panel) Regulation 90, which report shall express a fair and reasonable opinion, as required in terms of Regulation 110(1) and defined in Regulation 81(h), and the aforementioned report has been distributed to all of the AGA Shareholders; |
4.1.4. | should the implementation of the AGAH Sale and/or the Scheme be subject to approval by a court in terms of the provisions of section 115(2)(c) of the Companies Act, such approval has been obtained; |
4.1.5. | subject to clauses 4.4 and 4.5, AGA has not, by the expiry of the 20 (twenty) Business Day period contemplated in section 164(7)(a) or (b) (as the case may be), received valid demands in respect of AGA Shares, as contemplated in section 164(5) to (8) of the Companies Act (whether in relation to Step 2 or Step 3), that, in aggregate, represent more than 3.5% (three point five percent) of the voting rights attaching to all AGA Shares then in issue; |
4.1.6. | the AGA Shareholders have passed the resolution required in terms of section 112, as read with section 115(2), of the Companies Act to approve the AGAH Sale; |
4.1.7. | the AGA Shareholders have passed such resolutions by the requisite majority of AGA Shareholders as may be required in terms of the Companies Act and the Regulations to approve the Scheme, including in particular, the resolution contemplated in section 115(2) of the Companies Act; |
4.1.8. | the AGA Shareholders have conditionally passed special resolutions pursuant to section 164(9)(c) of the Companies Act revoking each of the resolutions referred to in clauses 4.1.6 and 4.1.7; |
4.1.9. | such approvals from the JSE as may be required by and in terms of the JSE Listings Requirements in connection with the Reorganisation have been received, including (amongst other things): |
4.1.9.1. | the approval by the JSE of Step 2 and Step 3 (such approval being in such form as is customarily issued by the JSE in relation to transactions similar to Step 2 and Step 3) and of all documentation required by the JSE to be submitted to it in connection with Step 2 and Step 3; and |
4.1.9.2. | the admission to listing by way of the secondary listing of all Listco Shares on the main board of the JSE, including in particular, the Subscription Shares and the Scheme Consideration Shares, and the approval by the JSE of all documentation required by the JSE to be submitted to it in connection with such listing; |
4.1.10. | the SEC has made a declaration confirming the effectiveness of Listco’s 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; |
4.1.11. | Listco, AGA and AGAH have executed and delivered to The Bank of New York Mellon, as trustee, in form satisfactory to The Bank of New York Mellon acting reasonably, 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 Listco 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 Step 2; |
4.1.12. | if and to the extent required, any other regulatory approvals, consents or rulings necessary to implement the Reorganisation have been obtained; and |
4.1.13. | AGA has not, prior to the Material Adverse Effect Long Stop, exercised its right to cancel this Agreement as a result of the occurrence of a Material Adverse Effect in terms of clause 4.7. |
4.2. | The Parties undertake to each other to use their reasonable commercial endeavours and to cooperate with each other in good faith to achieve the fulfilment of the Conditions Precedent on or before the Long Stop Date. |
4.3. | The Conditions Precedent contained in clause 4.1 (excluding clauses 4.1.5 and 4.1.13) have been inserted for the benefit of both of the Parties, which Conditions Precedent the Parties shall be entitled to waive (in whole or in part and only to the extent that such waiver is not a breach of law) by way of a written agreement at any time prior to the Long Stop Date. |
4.4. | The Conditions Precedent contained in clauses 4.1.5 and 4.1.13 have been inserted for the benefit of AGA which shall be entitled to waive fulfilment of same (in whole or in part) at any time prior to the Long Stop Date. |
4.5. | Notwithstanding anything to the contrary contained in this clause 4: |
4.5.1. | subject to clause 4.5.2, any Condition Precedent, which is capable of waiver in terms of clauses 4.3 or 4.4 and in respect of which events have occurred which would, but for this clause 4.5.1, have caused the Condition Precedent in question to fail (the “Potentially Failed CP”), shall not fail until the Long Stop Date and then only if not waived prior to the Long Stop Date; and |
4.5.2. | if the Party or Parties entitled to waive a Potentially Failed CP have notified the other Party in writing that they irrevocably undertake not to waive the Potentially Failed CP, then the Potentially Failed CP shall fail forthwith upon the delivery of the aforesaid irrevocable undertaking. |
4.6. | Unless all the Conditions Precedent have been fulfilled or waived by not later than the Long Stop Date, the provisions of this Agreement save for Immediately Operative Provisions, which will remain of full force and effect, will never become of any force or effect and the status quo ante will be restored as near as may be possible and none of the Parties will have any claim against any other in terms hereof or arising from the failure of the Conditions Precedent, save for any claims arising from a breach of clause 4.2 and/or any prior breach of any of the provisions of this Agreement which became effective prior to the Fulfilment Date. |
4.7. | Notwithstanding anything to the contrary contained in this Agreement, AGA shall be entitled to cancel this Agreement by means of a written notice to Listco at any time prior to the Material Adverse Effect Long Stop if a Material Adverse Effect has occurred. |
IMPLEMENTATION OF THE PRE-STEPS |
5.1. | As at the date of this Agreement, Listco has been incorporated with, and AGA has subscribed for and been issued, the Founder Share. |
5.2. | The Parties hereby undertake that prior to the Reorganisation: |
5.2.1. | AGA shall subscribe for, and Listco shall issue to AGA, 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); |
5.2.2. | Listco shall undertake 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 Listco will apply to funding the redemption of the Redeemable Preference Shares as set out in clause 6.4.1 below; and |
5.2.3. | Listco shall re-register as a public limited company from a private limited company and shall adopt the Listco Articles. |
SUBSCRIPTION AND DISTRIBUTION OF THE SUBSCRIPTION SHARES AND LISTCO REDEMPTIONS AND CANCELLATIONS |
6.1. | On the Subscription Date, AGA shall pay the Subscription Consideration to Listco and simultaneously effect a distribution in specie to the Scheme Participants, in accordance with which AGA shall make the Step 1 Direction. |
6.2. | As soon as reasonably practicable following receipt of the Step 1 Direction, Listco shall allot and issue the Subscription Shares in accordance with the Step 1 Direction to the CS Depositary Nominee. The CS Depositary Nominee will hold such Subscription Shares as nominee for the CS Depositary. Listco will procure that the CS Depositary will in turn issue an equal number of CS Listco DRs, each representing an entitlement to a Subscription Share, to the CS SA Nominee who will hold such CS Listco DRs for the benefit of the Scheme Participants in their respective pro rata portions. |
6.3. | In order to facilitate the unwind provisions in clause 14, Listco shall be entitled, pursuant to the Listco Articles, on written notice to the CS Depositary Nominee, to instruct that the CS Depositary Nominee (acting ultimately for and on behalf of the Scheme Participants) transfers the Subscription Shares to AGA for nil consideration (in connection with which it is noted that the CS Depositary shall cancel the CS Listco DRs) and AGA shall accept such shares, as further contemplated in clause 14. |
6.4. | The Parties hereby agree that, forthwith following completion of Step 1A and the CS Depositary Nominee being entered as a registered shareholder of Listco for the purposes contemplated in clause 6.2: |
6.4.1. | Listco shall redeem the Redeemable Preference Shares held by AGA at nominal value, as a result of which the Redeemable Preference Shares will automatically be treated as cancelled under English law; |
6.4.2. | AGA shall Gift the Founder Share to Listco; and |
6.4.3. | Listco shall take the necessary steps to cancel the Founder Share, |
IMPLEMENTATION OF STEP 2 |
THE SCHEME |
8.1. | AGA hereby undertakes to Listco that the AGA Board will propose, to the AGA Shareholders, the Scheme between AGA and the AGA Shareholders in accordance with the terms set out in this Agreement. |
8.2. | AGA further undertakes to Listco to comply with the provisions of the Companies Act and the Regulations applicable to it in terms of the Scheme, including: |
8.2.1. | preparing a draft of the AGA Shareholders’ Circular in accordance with the Companies Act, the Regulations and the JSE Listings Requirements and providing such draft to Listco for Listco’s reasonable comments (which comments (if any) Listco undertakes to provide to AGA as soon as reasonably practicable); |
8.2.2. | incorporating any reasonable comments of Listco in a final draft of the AGA Shareholders’ Circular and providing such final draft to Listco for Listco’s approval (which approval Listco shall not unreasonably withhold or delay); |
8.2.3. | circulating the AGA Shareholders’ Circular to the AGA Shareholders in accordance with the Companies Act, the Regulations and the JSE Listings Requirements. Listco hereby undertakes to do all such things as AGA may reasonably require of Listco in order for the Reorganisation to be implemented in accordance with the AGA Shareholders’ Circular; |
8.2.4. | that the Independent Board shall, after having received and taken cognisance of the Independent Expert’s report and opinion referred to in clause 10, and such other matters as the Independent Board considers relevant, communicate its opinion to the AGA Shareholders, in the AGA Shareholders’ Circular, which opinion shall comply with Regulation 110; |
8.2.5. | to do all things required by AGA and/or the Independent Board in terms of this Agreement in order to convene the AGA Shareholders’ Meeting for the purpose of the AGA Shareholders considering and voting on the approval of the Scheme; |
8.2.6. | to transmit the AGA Shareholders’ Circular, and any notices, reports and/or communications that are made generally available by AGA to AGA Shareholders regarding the Scheme to the ADS Depositary and, by written request to the ADS Depositary, procure the transmittal of the AGA Shareholders’ Circular and any required notices, report and/or communications to the AGA ADS Holders, in accordance with the procedures described in the AGA Deposit Agreement; |
8.2.7. | to procure, by written request to the ADS Depositary, the mailing of a notice, including a voter instruction card, to AGA ADS Holders so that they may vote the AGA Shares held by the ADS Depositary as AGA ADSs, in the AGA Shareholders’ Meeting for the purpose of voting on the approval of the Scheme in accordance with the voting procedures described in the AGA Deposit Agreement; |
8.2.8. | if the Scheme is approved by the AGA Shareholders, to do all things required to implement the Scheme on (but not before) the Operative Date; and |
8.2.9. | without derogating from the generality of the provisions of clause 8.2.8, to procure that upon receipt by the Transfer Secretaries of notice of the issue by Listco of the Scheme Consideration Shares, the Transfer Secretaries shall perform all of the steps provided for in clauses 11 and 12 below such that Listco will become the owner and registered holder of all of the AGA Shares. |
8.3. | Listco hereby undertakes to 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 Listco Shares pursuant to the Reorganisation, including: (a) the preparation and filing with the SEC of a registration statement on Form F-4 and any supplements or amendments thereto and together with any exhibits and documents ancillary thereto, to effect the registration of such issuance under the Securities Act; and (b) the preparation and filing with the NYSE of a listing application and all supporting documentation relating thereto to obtain authorisation to list the Listco Shares on the NYSE. |
8.4. | The Scheme shall be implemented on (but not before) the Operative Date as follows (and in accordance with clauses 11 and 12): |
8.4.1. | the Scheme Participants (whether they voted in favour of the Scheme or not or abstained or refrained from voting) shall ipso facto be deemed to dispose of their respective AGA Shares, together with all right, title and interest therein, free from all Encumbrances; |
8.4.2. | Listco shall acquire from the Scheme Participants registered and beneficial ownership of their AGA Shares, free from all Encumbrances; |
8.4.3. | the Scheme Participants shall be entitled to receive, in exchange for their Scheme Shares, both (but not only one of) 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 allotted and issued to the CS Depositary Nominee (to be held, ultimately, for the benefit of the Scheme Participants by the CS SA Nominee in the form of CS Listco DRs) by Listco; |
8.4.4. | the CS Depositary Nominee will hold the Scheme Consideration Shares as nominee for the |
8.4.5. | Listco will then procure that the CS SA Nominee will instruct the CS Depositary to: (a) cancel the relevant proportion of all CS Listco DRs attributable to Scheme Participants who are not Listco Affiliates; and (b) procure that the CS Depositary Nominee transfers the legal title to the corresponding number of Subscription Shares and Scheme Consideration Shares to Cede (as nominee for DTC). Cede will hold such shares on its customary terms for, ultimately, the benefit of the Scheme Participants, with the relevant DTC participant being credited by DTC with a corresponding number of book-entry interests in respect of the Listco Shares to which they are entitled. The CS SA Nominee will transfer the remaining CS Listco DRs attributable to Scheme Participants who are Listco Affiliates to such Listco Affiliates; and |
8.4.6. | each Scheme Participant shall (after receipt of the Subscription Shares pursuant to Step 1 and the Scheme Consideration Shares pursuant to Step 3) hold beneficial ownership of one Listco Share for every AGA Share held as at the Scheme Record Time. |
8.5. | AGA Shares held by any Previously Dissenting Shareholders shall be acquired by Listco in the manner, and for the consideration, described in clause 9. |
8.6. | 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 Companies Act; and (b) have not had their rights reinstated in terms of section 164(10) of the Companies Act before the Acceptance Deadline, AGA will (in accordance with section 164 of the Companies Act) pay to such AGA Shareholders, in cash, an amount equal to the fair value of their AGA Shares in accordance with section 164 of the Companies Act, whereafter such AGA Shares will be cancelled by AGA and restored to the authorised, but unissued, share capital of AGA. |
PREVIOUSLY DISSENTING SHAREHOLDERS |
9.1. | the Previously Dissenting Shareholders shall, pursuant to the terms of the Scheme and section 164(10) of the Companies Act, ipso facto be deemed to dispose of their respective AGA Shares (the “PDS Scheme Shares”), together with all right, title and interest therein, free from all Encumbrances, to Listco; |
9.2. | Listco shall acquire from the Previously Dissenting Shareholders registered and beneficial ownership of their PDS Scheme Shares, free from all Encumbrances; |
9.3. | each of the Previously Dissenting Shareholders shall be entitled to receive (pursuant to the terms of the Scheme and section 164(10) of the Companies Act), in exchange for its PDS Scheme Shares, both (but not only one of) the right and obligation to have, ipso facto and without any action on the part of such Previously Dissenting Shareholder, such number of fully paid Listco Shares as represent the number of the Listco Shares to which it would have been entitled under the Scheme had it been a Scheme Participant (calculated by multiplying the number of PDS Scheme Shares of such Previously Dissenting Shareholder by the PDS Scheme Equivalent Fraction and in the event that the aggregate number of such Listco Shares includes a fraction, such aggregate shall be rounded up to the nearest whole number), allotted and issued to the CS Depositary Nominee (to be held, ultimately, for the benefit of such Previously Dissenting Shareholder by the CS SA Nominee in the form of CS Listco DRs) by Listco and Listco shall allot and issue such Listco Shares to the CS Depositary Nominee for the benefit of such Previously Dissenting Shareholder (the Listco Shares issued pursuant to this clause 9.3 being the “PDS Scheme Consideration Shares”); |
9.4. | the CS Depositary Nominee will hold the PDS Scheme Consideration Shares of each Previously Dissenting Shareholder as nominee for the CS Depositary and Listco will procure that the CS Depositary will in turn issue an equal number of CS Listco DRs, each representing an entitlement to a PDS Scheme Consideration Share, to the CS SA Nominee, who will hold such CS Listco DRs on behalf of such Previously Dissenting Shareholder; |
9.5. | immediately following the allotment and issue of the PDS Scheme Consideration Shares, Listco shall, in order to ensure that each Previously Dissenting Shareholder is treated in the same way as a Scheme Participant, undertake a bonus issue (pursuant to an ordinary resolution) to the CS Depositary Nominee (to be held, ultimately, for the benefit of such Previously Dissenting Shareholder by the CS SA Nominee in the form of CS Listco DRs) of such number of fully paid Listco Shares as represent the number of Listco Shares to which such Previously Dissenting Shareholder would have been entitled pursuant to Step 1 had it been a Scheme Participant (calculated by multiplying the number of PDS Scheme Shares of such Previously Dissenting Shareholder by the PDS Step 1 Equivalent Fraction and in the event the aggregate number of such Listco Shares includes a fraction, such aggregate shall be rounded down to the nearest whole number) (the Listco Shares issued pursuant to this clause 9.5 being the “PDS Step 1 Equivalent Shares”); |
9.6. | the CS Depositary Nominee will hold the PDS Step 1 Equivalent Shares of each Previously Dissenting Shareholder as nominee for the CS Depositary and Listco will procure that the CS Depositary will in turn issue an equal number of CS Listco DRs, each representing an entitlement to a PDS Step 1 Equivalent Share, to the CS SA Nominee who will hold such CS Listco DRs on behalf of such Previously Dissenting Shareholder; |
9.7. | each Previously Dissenting Shareholder shall (following the allotment and issue of the PDS Scheme Consideration Shares and PDS Step 1 Equivalent Shares and once such Listco Shares are aggregated) hold beneficial ownership of one Listco Share for each PDS Scheme Share previously held; |
9.8. | Listco will then, if permissible under applicable DTC rules and regulations, procure that the CS SA Nominee will instruct the CS Depositary to: (a) cancel all CS Listco DRs attributable to the Previously Dissenting Shareholder in question; and (b) procure that the CS Depositary Nominee transfers the legal title to the PDS Scheme Consideration Shares and the PDS Step 1 Equivalent Shares to Cede (as nominee for DTC). Cede will hold such Listco Shares on its customary terms, ultimately, for the benefit of such Previously Dissenting Shareholder, with the relevant DTC participant credited by DTC with a corresponding number of book-entry interests in respect of the Listco Shares to which they are entitled; and |
9.9. | notwithstanding the date on which a particular AGA Shareholder becomes a Previously Dissenting Shareholder, the PDS Scheme Shares shall be transferred to Listco, and the PDS Scheme Consideration Shares and the PDS Step 1 Equivalent Shares shall be allotted and issued to the CS Depositary Nominee (to be held, ultimately, for the benefit of the Previously Dissenting Shareholders by the CS SA Nominee in the form of CS Listco DRs), on the PDS Exit Date in question. |
THE INDEPENDENT EXPERT’S REPORT |
10.1. | It is recorded that AGA has appointed an Independent Expert as referred to in section 114(2) of the Companies Act and (to the extent required by the Takeover Regulation Panel) Regulation 90 to, inter alia, prepare a report in terms of section 114(3) of the Companies Act and (to the extent required by the Takeover Regulation Panel) Regulation 90, which report shall express a fair and reasonable opinion, as required in terms of Regulation 110(1) and defined in Regulation 81(h). The aforementioned report shall be made available to the Independent Board and shall be included in the AGA Shareholders’ Circular for distribution to the AGA Shareholders. |
10.2. | The costs incurred by AGA in respect of the appointment and report referred to in clause 10.1 above will be for the account of AGA. |
DELIVERY OF THE AGA SHARES AND LISTCO SHARES |
11.1. | The delivery of the Subscription Shares, the Scheme Shares, the Scheme Consideration Shares, the PDS Scheme Shares, the PDS Scheme Consideration Shares and the PDS Step 1 Equivalent Shares shall be implemented as set out in this clause 11. |
11.2. | The Scheme shall be implemented: |
11.2.1. | in relation to the Scheme Shares and the Scheme Consideration Shares, on (but not before) the Operative Date by: |
11.2.1.1. | the delivery by AGA to Listco of documentary proof, satisfactory to Listco acting reasonably, that the Scheme Shares have been registered in the name of Listco by the Transfer Secretaries; and |
11.2.1.2. | the allotment and issue by Listco of the Scheme Consideration Shares to the CS Depositary Nominee (with the respective pro rata portions of the Scheme Consideration Shares to be held, ultimately, for the benefit of the Scheme Participants by the CS SA Nominee in the form of CS Listco DRs) in exchange for the Scheme Shares; |
11.2.2. | (if there are any Previously Dissenting Shareholders then) in relation to the PDS Scheme Shares and the PDS Scheme Consideration Shares in question, as soon as reasonably possible after the applicable PDS Exit Date by: |
11.2.2.1. | the delivery by AGA to Listco of documentary proof, satisfactory to Listco acting reasonably, that the PDS Scheme Shares have been registered in the name of Listco by the Transfer Secretaries; and |
11.2.2.2. | the allotment and issue by Listco of the PDS Scheme Consideration Shares to the CS Depositary Nominee (with the respective pro rata portions of the PDS Scheme Consideration Shares to be held, ultimately, for the benefit of the Previously Dissenting Shareholders by the CS SA Nominee in the form of CS Listco DRs) in exchange for the PDS Scheme Shares. |
11.3. | The Scheme Participants who are not Listco Affiliates shall, upon the transfer of the legal title to the Subscription Shares and the Scheme Consideration Shares to Cede (as nominee for DTC), and the Previously Dissenting Shareholders (if any) shall, upon the transfer of the legal title to the PDS Scheme Consideration Shares and PDS Step 1 Equivalent Shares to Cede (as nominee for DTC): |
11.3.1. | if they are Certificated AGA Shareholders, have their AGA Shares transferred to Listco and the DTC book-entry interests in respect of the Subscription Shares and Scheme Consideration Shares or PDS Scheme Consideration Shares and PDS Step 1 Equivalent Shares (as the case may be) credited to the relevant DTC participant, with a corresponding number of book-entry interests issued by Strate subsequently delivered to the CSDP account of Computershare Proprietary Limited (in its ongoing capacity as a CSDP and nominee for such Certificated AGA Shareholders) who shall mail a notice and instruction form for the surrender of their Documents of Title in respect of their AGA Shares and provide instructions on how to receive their Subscription Shares and Scheme Consideration Shares or PDS Scheme Consideration Shares and PDS Step 1 Equivalent Shares (as the case may be); |
11.3.2. | if they are Dematerialised AGA Shareholders (other than the ADS Depositary), have their AGA Shares transferred to Listco and the DTC book-entry interests in respect of the Subscription Shares and Scheme Consideration Shares or PDS Scheme Consideration Shares and PDS Step 1 Equivalent Shares (as the case may be) credited to the relevant DTC participant, with a corresponding number of book-entry interests issued by Strate subsequently delivered to their CSDP or broker, by the crediting of their accounts with the entitlements to the Subscription Shares and Scheme Consideration Shares or PDS Scheme Consideration Shares and PDS Step 1 Equivalent Shares (as the case may be), in terms of the custody agreement entered into between such Scheme Participants or Previously Dissenting Shareholders and their CSDP or broker (as the case may be); |
11.3.3. | if they are the ADS Depositary, have their AGA Shares transferred to Listco, and be replaced |
11.3.3.1. | with respect to AGA ADS Holders who hold AGA ADRs, the Subscription Shares and Scheme Consideration Shares shall be transferred to Cede, with book-entry interests credited to the DTC custodial account of the U.S. Exchange Agent, who shall mail a notice and form of letter of transmittal calling for the surrender of their AGA ADRs and providing instructions on how to receive delivery of the Subscription Shares and Scheme Consideration Shares; |
11.3.3.2. | with respect to AGA ADS Holders who hold AGA ADSs in dematerialised, registered form, the Subscription Shares and Scheme Consideration Shares shall be transferred to Cede, with book-entry interests credited to the DTC custodial account of the U.S. Exchange Agent, who shall mail a notice providing instructions on how to receive delivery of the Subscription Shares and Scheme Consideration Shares; and |
11.3.3.3. | with respect to AGA ADS Holders who hold AGA ADSs through a securities intermediary that is a direct or indirect participant in DTC, the Subscription Shares and Scheme Consideration Shares shall be transferred to Cede, with book-entry interests credited in their securities accounts through DTC without any action on their part. |
11.4. | The Scheme Participants who are Listco Affiliates shall have their AGA Shares transferred to Listco, the legal title to their Subscription Shares and Scheme Consideration Shares shall remain with the CS Depositary Nominee, and the corresponding CS Listco DRs issued by the CS Depositary shall be transferred from the CS SA Nominee to such Listco Affiliates. |
OWNERSHIP, RISK AND BENEFIT |
12.1. | On delivery to Listco of the Scheme Shares by the Scheme Participants or the PDS Scheme Shares by the Previously Dissenting Shareholders (if any) (as the case may be), Listco shall: |
12.1.1. | become the owner of the Scheme Shares or the PDS Scheme Shares (as the case may be); and |
12.1.2. | be entitled to all benefits and subject to all risks attaching to the Scheme Shares or the PDS Scheme Shares (as the case may be). |
12.2. | On delivery by Listco of beneficial interests in the Subscription Shares and Scheme Consideration Shares to the Scheme Participants or beneficial interests in the PDS Scheme Consideration Shares and PDS Step 1 Equivalent Shares to the Previously Dissenting Shareholders (if any) (as the case may be), the Scheme Participants and Previously Dissenting Shareholders (if any) (as the case may be) shall: |
12.2.1. | become the beneficial owners of their respective pro rata portions of the Subscription Shares and Scheme Consideration Shares or of the PDS Scheme Consideration Shares and PDS Step 1 Equivalent Shares (as the case may be); and |
12.2.2. | be entitled to all benefits and subject to all risks attaching to the Subscription Shares and Scheme Consideration Shares or PDS Scheme Consideration Shares and PDS Step 1 Equivalent Shares (as the case may be). |
DELISTING OF THE AGA SHARES AND THE AGA ADSs |
POSSIBLE UNWIND OF STEP 1 AND STEP 2 |
14.1. | As contemplated in clause 3, the Three Steps will be implemented in the order in which they are described in clause 2, with each of the Three Steps only being implemented after all of the preceding Steps have been fully implemented. If one or more of the later Steps are not ultimately implemented and yet one or more of the earlier ones are implemented, the Parties agree it will be necessary to unwind (to the extent possible) those Steps that have been implemented. In that event, the Parties have agreed to unwind the Steps in question as contemplated in this clause 14. |
14.2. | If Step 1 is implemented, but neither Step 2 nor Step 3 is implemented by the end of the 3rd (third) Business Day thereafter (or such later date as determined by the AGA Board) (the “Implementation Deadline”), then the Parties agree that the following shall apply: |
14.2.1. | Listco shall be entitled, pursuant to the Listco Articles, on written notice to the CS Depositary Nominee, to instruct that the CS Depositary Nominee (acting ultimately for and on behalf of the Scheme Participants) transfers the Subscription Shares to AGA for nil consideration (in connection with which it is noted that the CS Depositary shall cancel the CS Listco DRs) and AGA shall accept such shares; |
14.2.2. | AGA and Listco shall do all such things as may be necessary to ensure that the Subscription Shares are delivered, and ownership therein passes, to AGA; and |
14.2.3. | the Parties shall use reasonable endeavours to procure that the CS Depositary Nominee complies with the provisions of this clause 14.2. |
14.3. | If Step 1 and Step 2 are both implemented, but Step 3 is not implemented by the Implementation Deadline, then the AGAH Sale Resolutive Condition shall have been fulfilled and the Parties agree that the following shall apply: |
14.3.1. | First, Step 2 shall be unwound by virtue of the AGAH Sale Resolutive Condition having been fulfilled and, in order to implement the foregoing: |
14.3.1.1. | AGA and Listco shall do all such things as may be necessary to restore the status quo ante immediately before the implementation of the AGAH Sale, including: (a) returning (or procuring the return of) to AGA and Listco (as the case may be) the documents delivered pursuant to clause 6.1 (Implementation of the AGAH Sale) of the Offer Document; and (b) the delivery by Listco to AGA of duly completed and executed transfer forms, which comply with the articles of association of AGAH, and all such other documents as may be required to procure the transfer of the title of the AGAH Sale Shares to AGA; |
14.3.1.2. | AGA shall, by virtue of the foregoing, once again be the owner of the AGAH Sale Shares; |
14.3.1.3. | Listco shall procure that AGAH delivers to AGA: |
14.3.1.3.1. | a copy of the resolution of the board of directors of AGAH approving the registration of the transfer of the AGAH Sale Shares from Listco to AGA; |
14.3.1.3.2. | an extract of the register of members of AGAH which records AGA as being the registered owner and holder of the AGAH Sale Shares; |
14.3.1.3.3. | new share certificates which reflect AGA as being the registered owner and holder of the AGAH Sale Shares; and |
14.3.1.3.4. | all such other documents as are necessary in order to enable AGA to take ownership of, and procure the registration of, the AGAH Sale Shares into its name and/or the name of its nominee/s; and |
14.3.1.4. | AGA shall transfer the Purchase Consideration Notes to Listco, following which the Purchase Consideration Notes will be automatically cancelled. |
14.3.2. | Second, and only after Step 2 has been unwound as contemplated in clause 14.3.1, Step 1 shall be unwound, mutatis mutandis, as contemplated in clause 14.2. |
DISTRIBUTION OF THE PURCHASE CONSIDERATION NOTES |
15.1. | AGA hereby records that it is AGA’s intention: |
15.1.1. | to distribute to Listco, as a distribution in specie, the Distributed Notes (as the Step 4 Distribution referred to in clause 2.8.1 above) on a date (in the discretion of AGA) which occurs as soon as possible after Step 3 has been implemented in relation to the Scheme Participants and retain the Retained Notes. AGA intends that the: (a) Retained Notes shall be equal to such number of the Purchase Consideration Notes that, in aggregate, have a face value equal to the aggregate amount of dividends tax that will be payable by AGA as a result of the Step 4 Distribution; and (b) Distributed Notes shall be equal to the maximum number of the Purchase Consideration Notes that can be distributed whilst ensuring that the Retained Notes are sufficient to meet the requirements of the aforesaid (a); and |
15.1.2. | that, prior to effecting the Step 4 Distribution, AGA shall enter into the Credit Support Agreement with AGAH so as to ensure that AGA is solvent and liquid as required for the purposes of section 46 of the Companies Act. |
15.2. | If, and to the extent that it is necessary, Listco hereby consents to AGA making the Step 4 Distribution, and confirms that it shall accept the aforesaid Step 4 Distribution. It is recorded that if and when the Step 4 Distribution is implemented, the Distributed Notes will be extinguished by operation of law by virtue of Listco being both the issuer and holder of the Distributed Notes. |
THE CONVERSION AND ELECTION |
16.1. | Listco undertakes to conduct the Conversion and the Election (as referred to in clause 2.9 above), as soon as possible after (but not before) Step 3 has been implemented in relation to the Scheme Participants on the terms set out in this clause 16. |
16.2. | Listco and AGA shall procure the Conversion is implemented as follows: |
16.2.1. | AGA will adopt the necessary special resolutions to approve the amendment of its memorandum of incorporation 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 |
16.2.2. | AGA will file the aforementioned amended memorandum of incorporation and special resolutions, together with a notice of amendment, with CIPC in order to obtain the Amended Certificate from CIPC (in terms of section 16(9)(a), as read with section 16(8)(b)(i), of the Companies Act), upon the issue of which Amended Certificate by CIPC, the aforesaid conversion shall be effective on the Conversion Date set out in the Amended Certificate. |
16.3. | AGA shall make the Election as follows: AGA shall make an election on IRS Form 8832 to be treated as disregarded from Listco for U.S. federal tax purposes effective as of the Conversion Date. |
GENERAL WARRANTIES AND REPRESENTATIONS |
17.1. | The warranties contained in clause 17.4 are hereby given and made by each of the Parties to the other of them. |
17.2. | Unless specifically otherwise stated, each warranty is given or made at both the Signature Date, and the Operative Date and during the intervening period between the aforesaid dates. |
17.3. | All warranties, representations and undertakings contained in clause 17.4 and elsewhere in this Agreement are limited and qualified to the extent to which any fact or circumstance giving rise to such limitation or qualification has been disclosed in writing or has been publicly announced. |
17.4. | Each Party warrants to the other Party that: |
17.4.1. | it is and shall throughout the performance of its obligations under this Agreement remain validly incorporated in accordance with all applicable laws; |
17.4.2. | it has and shall continue to have the necessary legal capacity to enter into and perform each of its obligations under this Agreement; |
17.4.3. | the execution of this Agreement and performance by it of its obligations hereunder do not and shall not – |
17.4.3.1. | contravene any law or regulation to which it is subject; or |
17.4.3.2. | contravene any provision of its founding documents; or |
17.4.3.3. | 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 |
17.4.4. | it is and shall throughout the performance of its obligations under this Agreement remain solvent and liquid. |
CONFIDENTIALITY |
18.1. | Any information obtained by either Party in connection with this Agreement or the transactions contemplated hereby, shall be treated as confidential by the Parties and shall not be used, divulged or permitted to be divulged to any person not being a Party to this Agreement, without the prior written consent of the other Party (which consent shall not be unreasonably withheld or delayed) save that: |
18.1.1. | each Party shall be entitled to disclose such information to its professional advisors and funders who have a need to know and who have been directed by the disclosing Party to keep such information confidential and have undertaken to keep such information confidential; |
18.1.2. | each Party shall be entitled to disclose any information (including this Agreement) which is required to be furnished by it (or any member of its group) by law or regulation or by any recognised stock exchange or any Tax authority; |
18.1.3. | no Party shall be precluded from using or divulging such information in order to pursue any legal remedy available to it; |
18.1.4. | each Party shall be entitled to disclose such information if such information is, or becomes, generally available to the public other than by the negligence or default of such Party or by the breach of this Agreement by such Party; |
18.1.5. | each Party shall be entitled to disclose such information if the Party, which originally disclosed same to the first mentioned Party, confirms in writing that same was so originally disclosed on a non-confidential basis; |
18.1.6. | each Party shall be entitled to disclose such information if such information has lawfully become known by or come into the possession of such Party on a non-confidential basis from a source other than the Party having the legal right to disclose same; or |
18.1.7. | this Agreement itself may be disclosed by a Party to any third party that is in bona fide, good faith negotiating with such Party to enter into a transaction or any other written contractual relationship with such Party. |
18.2. | In the event that a Party is required to disclose information as contemplated in clause 18.1.2, such Party will: |
18.2.1. | advise the Party in respect of whom such information relates (the “Relevant Party”) in writing prior to disclosure, if possible; |
18.2.2. | take such steps to limit the disclosure to the minimum extent required to satisfy such requirement and to the extent that it lawfully and reasonably can; |
18.2.3. | afford the Relevant Party a reasonable opportunity, if possible, to intervene in the proceedings; |
18.2.4. | comply with the Relevant Party’s reasonable requests as to the manner and terms of such disclosure; and |
18.2.5. | notify the Relevant Party of the recipient of, and the form and extent of, any such disclosure or announcement immediately after it was made. |
ARBITRATION |
19.1. | Save in respect of those provisions of this Agreement which provide for their own remedies, any dispute (including any controversy or claim) which arises between the Parties in regard to this Agreement, or out of or pursuant to this Agreement (including with respect to the formation, breach, termination or invalidity hereof) (other than where an interdict is sought or urgent relief may be obtained from a court of competent jurisdiction), shall be submitted to and decided by arbitration in accordance with this clause 19. |
19.2. | The arbitration shall be held with only the Parties and their representatives present thereat. |
19.3. | The seat of the arbitration shall be Johannesburg and the geographic location of the arbitration hearings shall be South Africa. |
19.4. | Save as expressly provided in this Agreement to the contrary, the arbitration shall be subject to the arbitration legislation for the time being in force in South Africa, but solely and exclusively applying the rules of the Arbitration Foundation of Southern Africa (“AFSA”) and shall be administered by the rules of AFSA. If any provision of this clause 19 is inconsistent with the rules of AFSA in force at that time, the provisions of this clause 19 shall prevail. |
19.5. | The arbitrator shall be an impartial retired judge, or an impartial practising advocate of not less than 10 (ten) years’ standing or an impartial practising attorney of not less than 10 (ten) years’ standing appointed by the Parties or, failing agreement by them within 10 (ten) Business Days after the arbitration has been demanded, at the request of any one of the Parties, shall be nominated by AFSA, whereupon the Parties shall forthwith appoint such person as the arbitrator. If that person fails or refuses to make the nomination or if any such office does not exist, any Party may approach the High Court of South Africa to make such an appointment. To the extent necessary, the court is expressly empowered to do so. |
19.6. | Within 10 (ten) Business Days after the pleadings have closed, the arbitrator shall determine the period within which the hearing will be concluded, taking into account the particular circumstances of the dispute. The arbitrator shall be entitled to extend the aforesaid time period under exceptional circumstances. The determination made by the arbitrator as regards the period within which the hearing will be concluded and/or the commencement date and/or the recommencement date shall be final. No Party may raise as being a good and a sufficient cause for the absence of that Party to the arbitration proceedings the reason of the fact that a Party’s legal representative is unavailable. |
19.7. | The arbitrator shall, subject to the provisions of this clause 19.7, have the sole, fullest and freest discretion with regard to the proceedings, save that the arbitrator shall be obliged to give his/her award in writing fully supported by reasons and shall adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined. |
19.8. | Either Party shall be entitled to have the award made an order of court of competent jurisdiction. |
19.9. | The Parties shall keep the evidence in the arbitration proceedings and any order made by any arbitrator confidential. |
19.10. | The arbitrator shall have the power to give default judgment if either Party fails to make submissions on the due date thereof and/or fails to appear at the arbitration. |
19.11. | The arbitrator, in exercising the powers of an expert and not of an arbitrator, may “make the contract”, but only as between the Parties, by completing any gaps in the contract or by determining any matter |
19.12. | The arbitrator shall be competent to rule on his/her own jurisdiction, including with respect to the existence or validity of this clause 19.12. Notwithstanding any other provisions of this Agreement, either of the Parties agree not to challenge the arbitrator’s ruling on his/her own jurisdiction, and if any application to court on any such matter is made, the Parties agree that they will not request the court to exercise its discretion and will be satisfied if a court does not exercise its discretion in such circumstances. |
19.13. | There shall be a right of appeal against any arbitral award provided that: |
19.13.1. | the appeal is noted within 10 (ten) Business Days of the arbitral award; |
19.13.2. | the appellant delivers the record to each respondent within 10 (ten) Business Days of the record becoming available to the appellant. The relevant provisions of this clause 19 shall apply mutatis mutandis in regard to the appeal (including any cross appeal); and |
19.13.3. | the appeal shall be heard before a panel of 3 (three) arbitrators and the provisions of clauses 19.5 and 19.6 shall apply. |
19.14. | The Parties to the arbitration, together with the arbitrator, will agree from time to time on the arbitrator’s remuneration and when and how it shall be paid in the interim. The Parties to the arbitration shall, pending the final determination of the arbitrator as to which of the Parties to the arbitration shall ultimately be liable for the costs of the arbitration, fund the costs (such as the costs of any venue, arbitrator’s remuneration, recording, transcription and other costs and expenses ancillary to the arbitration) which need to be paid in the interim, in equal proportions. If at any time, a Party does not pay his/her/its portion of the costs when required in the interim, that Party will be excluded from participating in the arbitration and the other Party shall be entitled to request a final award from the arbitrator as regards that Party. Within 10 (ten) Business Days of the making by the arbitrator of a final determination as to which Party to the arbitration shall bear the costs of the arbitration, the Party against which such determination has been made shall reimburse to the other Party the costs borne by such Party in the interim together with interest thereon, if the arbitrator so awards. |
19.15. | The provisions of this clause 19 shall remain in effect even if this Agreement is terminated, cancelled or rescinded for any reason. |
19.16. | If it is alleged or found that this Agreement was induced by a fraudulent misrepresentation or if this Agreement is void or voidable on any other ground, then notwithstanding that the remainder of this Agreement may be void or voidable the Parties agree that the provisions of this clause 19 are severable from the rest of this Agreement and shall remain in effect. In such circumstances, any dispute relating to any such fraudulent misrepresentation or relating to whether this Agreement is void or voidable shall be submitted to and decided by arbitration in accordance with this clause 19. |
BREACH |
20.1. | If either Party (“Defaulting Party”) breaches any term of this Agreement (other than those which contain their own remedies or limit the remedies in the event of a breach thereof) and fails to remedy such breach within 20 (twenty) Business Days of receipt of written notice (“Notice Period”) from the other Party (“Non-Defaulting Party”) requiring it to do so, then the Non- Defaulting Party shall be entitled, without notice, to any remedy available to it at law and under this Agreement, including withholding any of the Non-Defaulting Party’s performance under this Agreement, obtaining an interdict, to cancel or rescind this Agreement or to claim specific performance of any obligation whether or not the due date for performance has arrived, and without prejudice to the Non-Defaulting Party’s right to claim damages. |
20.2. | Notwithstanding anything to the contrary contained in this Agreement: |
20.2.1. | on or before the Operative Date, the Non-Defaulting Party shall be entitled to cancel this |
20.2.2. | after the Operative Date, the Non-Defaulting Party shall not be entitled to cancel this Agreement for any breach by the Defaulting Party. |
CO-OPERATION BETWEEN THE PARTIES |
21.1. | co-operate with each other to the fullest extent; and |
21.2. | do all such reasonable things, perform all such reasonable actions and take all such reasonable steps as may be open to them and necessary for and incidental to the implementation and/or maintenance of the terms and conditions of this Agreement. |
WHOLE AGREEMENT, NO AMENDMENT |
22.1. | This Agreement constitutes the whole agreement between the Parties relating to the subject matter hereof and supersedes any other discussions, agreements and/or understandings regarding the subject matter hereof. |
22.2. | No amendment or consensual cancellation of this Agreement or any provision or term hereof or of any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this Agreement and no settlement of any disputes arising under this Agreement and no extension of time, waiver or relaxation or suspension of or agreement not to enforce or to suspend or postpone the enforcement of any of the provisions or terms of this Agreement or of any agreement, bill of exchange or other document issued pursuant to or in terms of this Agreement shall be binding unless recorded in a document signed by the Parties (or in the case of an extension of time, waiver, relaxation or suspension, a document signed by the Party granting such extension, waiver, relaxation or suspension). Any such extension, waiver, relaxation or suspension which is so given or made shall be strictly construed as relating only to the matter in respect of which it was made or given. For the purposes of this clause 22.2, notwithstanding ECTA, “signed” shall mean a signature executed by hand on paper containing the document or an advanced electronic signature as defined in ECTA, applied to the document by the signatory. |
22.3. | No oral pactum de non petendo shall be of any force or effect. |
22.4. | No extension of time or waiver or relaxation of any of the provisions or terms of this Agreement or any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this Agreement, shall operate neither as an estoppel against either Party in respect of its rights under this Agreement, nor so as to preclude such Party (save as to any extension, waiver or relaxation actually given) thereafter from exercising its rights strictly in accordance with this Agreement. |
22.5. | To the extent permissible by law, neither Party shall be bound by any express or implied or tacit term, representation, warranty, promise or the like not recorded herein, whether it induced a Party to enter into the Agreement and/or whether it was negligent or not. |
DOMICILIUM CITANDI ET EXECUTANDI |
23.1. | The Parties choose as their domicilia citandi et executandi for all purposes under this Agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature (including the exercise of any option), the following addresses (save that e- mail shall not be used for the delivery of documents for court processes or arbitration proceedings): |
23.1.1. | AGA |
Physical: | AngloGold Ashanti Limited, 112 Oxford Road, Houghton Estate, Johannesburg, 2198, South Africa |
Email: | LMarwick@AngloGoldAshanti.com |
Attention: | Lizelle Marwick |
23.1.2. | Listco |
Physical: | AngloGold Ashanti (UK) Limited, 4th Floor, Communications House, South Street, Staines-upon-Thames, Surrey TW18 4PR, United Kingdom |
Email: | RHayes@AngloGoldAshanti.com |
Attention: | Robert Paul Harling Hayes |
23.2. | Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing, which for the avoidance of doubt includes e-mail. |
23.3. | Any Party may, by notice to the other Party, change the physical address chosen as its domicilium citandi et executandi vis-à-vis that Party to another physical address or its e-mail, provided that the change shall become effective vis-à-vis that addressee on the 10th (tenth) Business Day from the receipt of the notice by the addressee. |
23.4. | Any notice to a Party: |
23.4.1. | delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its domicilium citandi et executandi shall be deemed to have been received on the day of delivery; or |
23.4.2. | sent by e-mail to its chosen e-mail address stipulated in clause 23.1, shall be deemed to have been received on the date of despatch (unless the contrary is proved). |
23.5. | Notwithstanding anything to the contrary herein contained, a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi. |
NO ASSIGNMENT, CESSION OR DELEGATION OF RIGHTS AND/OR OBLIGATIONS |
COSTS |
STIPULATIO ALTERI |
GOVERNING LAW |
FORUM SELECTION AND CONSENT TO JURISDICTION |
SEVERABILITY |
SURVIVAL OF CERTAIN PROVISIONS ON TERMINATION OF THE AGREEMENT |
30.1. | Save as provided for in clause 3 above, should this Agreement terminate pursuant to any provision contained herein or be cancelled by either Party in terms of the provisions hereof, the Parties shall continue to be bound by the provisions of clause 1 and clauses 17 to 32 (both inclusive). |
30.1. | Without derogating from the aforegoing, the expiration, cancellation or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration, cancellation or termination or which of necessity must continue to have effect after such expiration, cancellation or termination, notwithstanding that the clauses themselves do not expressly provide for their survival. |
INDULGENCE AND WAIVER |
EXECUTION IN COUNTERPARTS AND SIGNATURE |
32.1. | This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same Agreement as at the date of signature of the Party that signs its counterpart last in time. |
32.2. | Delivery of an executed counterpart signature page of this Agreement by way of e-mail (PDF) shall be effective delivery of a manually executed counterpart of this Agreement. For the avoidance of doubt, a counterpart of this Agreement signed by electronic signature in any manner provided in ECTA, by e-mail signature, by scanned PDF copy of a signatory's wet signature and/or by signing using a PDF or other signature tool, shall be an effective and valid mode of execution and delivery of such counterpart of this Agreement (or a counterpart signature page), in the absence of evidence to the contrary. |
32.3. | Having each page of this Agreement initialled by a Party or having a Party's signature verified by a witness is not a requirement for this Agreement to be valid and enforceable. |
32.4. | The persons signing this Agreement in a representative capacity warrant their authority to do so. |
For: | | | ANGLOGOLD ASHANTI LIMITED | | | |
| | | | |||
Signature: | | | /s/ Gillian Doran | | | |
| | who warrants that he / she is duly authorised thereto | | | ||
| | | | |||
Name: | | | Gillian Doran | | | |
Date: | | | 12 May 2023 | | | |
Place: | | | Melbourne | | |
For: | | | ANGLOGOLD ASHANTI (UK) LIMITED | | | |
| | | ||||
Signature: | | | /s/ Robert Hayes | | | |
| | who warrants that he / she is duly authorised thereto | | | ||
| | | | |||
Name: | | | Robert Hayes | | | |
Date: | | | 12 May 2023 | | | |
Place: | | | London | | |
1. | INTERPRETATION AND PRELIMINARY |
1.1. | The headings in this first addendum (the “Addendum”) are for the purpose of convenience and reference only and shall neither be used in the interpretation of nor modify nor amplify the terms of this Addendum nor any of its clauses. |
1.2. | All the terms defined in the Implementation Agreement shall, unless the context otherwise requires, bear the same meanings in this Addendum. |
1.3. | The provisions of clauses 1.2 to 1.11 of the Implementation Agreement shall apply mutatis mutandis to this Addendum and are hereby incorporated into this Addendum by reference. |
2. | AMENDMENTS TO THE IMPLEMENTATION AGREEMENT |
“1.1.72 | “Operative Date” means the date, after the Fulfilment Date, on which Step 3 is to be implemented, being the later of: (a) the date which the AGA Shareholders’ Circular specifies is to be the date on which Step 3 is to be implemented; (b) the day after the date, if any, on which the AGAH Sale has been implemented (which sale, it is recorded, shall occur after the Listco Spin-Off Completion); or (c) such other date as may be agreed in writing between the Parties;” |
3. | RETENTION |
4. | WHOLE AGREEMENT NO AMENDMENT |
4.1. | This Addendum constitutes the whole agreement between the parties hereto concerning its subject matter. |
4.2. | No amendment or consensual cancellation of this Addendum or any provision or term thereof or of any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this Addendum and no extension of time, waiver or relaxation or suspension of any of the provisions or terms of this Addendum or of any agreement, bill of exchange or other document issued pursuant to or in terms of this Addendum shall be binding unless recorded in a written document signed by the parties hereto. Any such extension, waiver or relaxation or suspension which is so given or made shall be strictly construed as relating strictly to the matter in respect whereof it was made or given. |
5. | APPLICATION OF CLAUSES FROM THE IMPLEMENTATION AGREEMENT TO THIS ADDENDUM |
6. | EXECUTION IN COUNTERPARTS |
For: | | | ANGLOGOLD ASHANTI LIMITED | |||
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Signature: | | | /s/ Lizelle Marwick | | | |
| | who warrants that he / she is duly authorised thereto | ||||
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Name: | | | Lizelle Marwick | | | |
Date: | | | 23 June 2023 | | | |
Place: | | | Johannesburg | | |
For: | | | ANGLOGOLD ASHANTI PLC | |||
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Signature: | | | /s/ Robert Hayes | | | |
| | who warrants that he / she is duly authorised thereto | ||||
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Name: | | | Robert Hayes | | | |
Date: | | | 23 June 2023 | | | |
Place: | | | London | | |
INTERPRETATION AND PRELIMINARY |
1.1. | words and expressions to which a meaning is attributed in the Implementation Agreement shall have the same meanings when used herein (whether directly or by incorporation by reference), including (without limitation) the following words and expressions: “AGAH Sale Effective Date”; “Business Day”; “Implementation Deadline”; “Pre-Steps”; “Reorganisation”; “Step”; “Step 1”; “Step 2”; “Step 3”; “Step 4”; “Step 5” and “Three Steps”; |
1.2. | the following terms shall have the meanings ascribed to them hereunder and cognate expressions shall have corresponding meanings, namely: |
1.2.1. | “AGA” means AngloGold Ashanti Limited (Registration No.:1944/017354/06), a public company duly incorporated in accordance with the company laws of South Africa; |
1.2.2. | “AGAH” means AngloGold Ashanti Holdings plc (Company No.: 001177V), a company duly incorporated in accordance with the company laws of the Isle of Man; |
1.2.3. | “AGAH Sale” shall have the meaning ascribed thereto in clause 5.1; |
1.2.4. | “AGAH Sale Parties” means AGA and Listco, and includes a reference to either of them as the context may require; |
1.2.5. | “AGAH Sale Resolutive Condition” shall have the meaning ascribed thereto in clause 7; |
1.2.6. | “AGAH Sale Shares” means: |
1.2.6.1. | 4,652,711,995 (four billion, six hundred and fifty-two million, seven hundred and eleven thousand, nine hundred and ninety-five) ordinary shares of par value USD 1.00 (one Dollar) each; and |
1.2.6.2. | 673,838,922 (six hundred and seventy-three million, eight hundred and thirty-eight thousand, nine hundred and twenty-two) ordinary shares of par value AUD 1.00 (one Australian Dollar) each, constituting 100% (one hundred percent) of the issued share capital of AGAH; |
1.2.7. | “AUD” or “Australian Dollars” means the Australian Dollar, being the lawful currency of Australia; |
1.2.8. | “Implementation Agreement” means the agreement titled “Implementation Agreement” entered into, or to be entered into, between AGA and Listco, in terms of which, inter alia, Listco undertakes to co-operate with AGA to implement a scheme of arrangement proposed by AGA to its shareholders, pursuant to which Listco will acquire all of the issued shares in AGA; |
1.2.9. | “Listco” means AngloGold Ashanti (UK) Limited (Registration No.: 14654651), a private limited company duly incorporated in accordance with the laws of England and Wales, to be reregistered as a public company and renamed AngloGold Ashanti plc; |
1.2.10. | “Offer” shall have the meaning ascribed thereto in clause 3; |
1.2.11. | “Offer Acceptance Date” shall have the meaning ascribed thereto in clause 4; |
1.2.12. | “Offer Date” means the date on which Listco signs and delivers this Offer Document to AGA; |
1.2.13. | “Offer Document” means this “Irrevocable Offer to Purchase”, together with all annexures hereto (if any), as may be amended, revived, replaced and/or reinstated from time to time; |
1.2.14. | “Purchase Consideration Notes” means zero coupon unsecured loan notes, which have an |
1.2.15. | “Purchase Consideration Quantum” means the fair market value of the AGAH Sale Shares, as determined by the Valuation Expert (acting as an expert and not an arbitrator), on any date between the Offer Date and the AGAH Sale Effective Date at the written request of either AGAH Sale Party to the other of them; and |
1.2.16. | “Valuation Expert” means Deloitte Touche Tohmatsu Limited (or a subsidiary or affiliate company of Deloitte Touche Tohmatsu Limited) or such other professional independent valuator, as may be agreed to in writing by the AGAH Sale Parties at the request of either of them to the other, provided that if they do not agree with 10 (ten) Business Days then at the written request of either AGAH Sale Party to the other, the valuation expert will be selected by the auditors of AGA. |
1.3. | The provisions of clauses 1.2 to 1.11 of the Implementation Agreement shall apply mutatis mutandis to this Offer Document and are hereby incorporated into this Offer Document by reference. |
RECORDAL |
2.1. | Listco and AGA entered into, or intend to enter into, the Implementation Agreement in terms of which (together with this Offer Document), inter alia, Step 1, Step 2 (if AGA accepts the Offer) and Step 3, which comprise the Reorganisation, will be regulated, including (importantly) the sequence in which those Three Steps are implemented; |
2.2. | this Offer Document sets out the Offer by Listco which, if accepted by AGA, will result in the AGAH Sale which constitutes Step 2; |
2.3. | the Three Steps (being Step 1, Step 2 and Step 3) set out in the Implementation Agreement (as read with this Offer Document in respect of Step 2) collectively form one inter-conditional transaction; |
2.4. | the Three Steps will be implemented strictly: (a) in accordance with the terms; (b) subject to the conditions; and (c) consistent with the sequence, set out in the Implementation Agreement (as read with this Offer Document in respect of Step 2); |
2.5. | in addition, the Implementation Agreement (as read with this Offer Document in respect of Step 2): |
2.5.1. | contemplates and/or regulates the implementation of the Pre-Steps, Step 1, Step 3, Step 4 and Step 5; and |
2.5.2. | describes, in detail, each of the Pre-Steps, Step 1, Step 2, Step 3, Step 4 and Step 5 and, therefore, reference should be had to the Implementation Agreement for a more complete understanding of the background and surrounding circumstances of the Offer in this Offer Document; and |
2.6. | in the event that Step 1 and/or Step 2 are, but Step 2 and/or Step 3 are not, implemented by the Implementation Deadline, then all Three Steps (including the AGAH Sale, if and to the extent that it has arisen pursuant to the acceptance by AGA of the Offer contemplated in this Offer Document) will be unwound in accordance with the terms of clause 14 (Possible Unwind of Step 1 and Step 2) of the Implementation Agreement. |
OFFER |
OFFER PERIOD AND THE EXERCISE OF THE OFFER |
SALE AND PURCHASE OF THE AGAH SALE SHARES |
5.1. | Subject to Step 1 being implemented and AGA accepting the Offer (in accordance with clause 4), and subject to the AGAH Sale Resolutive Condition, AGA sells to Listco, which purchases from AGA, the AGAH Sale Shares in consideration for the issue of the Purchase Consideration Notes by Listco to AGA (“AGAH Sale”). |
5.2. | Notwithstanding the Offer Acceptance Date or the date upon which the documents of title in respect of the AGAH Sale Shares are delivered by AGA to Listco, the AGAH Sale Shares shall be sold by AGA to Listco with effect on, and as from, the AGAH Sale Effective Date, from which date all risks in and benefits attaching to the AGAH Sale Shares shall transfer from AGA to Listco. |
5.3. | If AGA accepts the Offer, then the consideration to be discharged by Listco to AGA for the AGAH Sale Shares shall be the Purchase Consideration Notes, having a total aggregate value equal to the Purchase Consideration Quantum, and that consideration shall be discharged by Listco issuing the Purchase Consideration Notes to AGA on the AGAH Sale Effective Date. The issue and delivery of the Purchase Consideration Notes, which have a total aggregate value equal to the Purchase Consideration Quantum, by Listco to AGA shall constitute due and proper discharge of Listco’s obligation to discharge the consideration for the AGAH Sale Shares to AGA. |
IMPLEMENTATION OF THE AGAH SALE |
6.1. | If AGA accepts the Offer, then on the AGAH Sale Effective Date: |
6.1.1. | duly authorised representatives of the AGAH Sale Parties shall convene in such manner, including by electronic means, as they consider to be convenient for the purpose of facilitating the delivery and implementation contemplated in clause 6.1.2; |
6.1.2. | AGA shall deliver to Listco, against compliance by Listco with its obligations in terms of clause 6.1.4, the share certificate/s in respect of the AGAH Sale Shares, together with a duly completed and executed transfer form/s, which complies with the articles of association of AGAH, and all such other documents as may be required to procure the transfer of the title of the AGAH Sale Shares to Listco; |
6.1.3. | AGA shall procure that AGAH delivers to Listco, against compliance by AGA and Listco with their respective obligations in terms of clause 6.1.2 and clause 6.1.4 respectively: |
6.1.3.1. | a copy of the resolution of the board of directors of AGAH approving the registration of the transfer of the AGAH Sale Shares from AGA to Listco; |
6.1.3.2. | an extract of the register of members of AGAH which records Listco as being the registered owner and holder of the AGAH Sale Shares; |
6.1.3.3. | new share certificates which reflect Listco as being the registered owner and holder of the AGAH Sale Shares; and |
6.1.3.4. | all such other documents as are necessary in order to enable Listco to take ownership of, and procure the registration of, the AGAH Sale Shares into its name and/or the name of its nominee/s; and |
6.1.4. | Listco shall deliver to AGA, against compliance by AGA with its obligations in terms of clause 6.1.2 and clause 6.1.3: |
6.1.4.1. | an original duly executed loan note instrument constituting the Purchase Consideration Notes substantially in the form of Annexure A; and |
6.1.4.2. | a certificate which evidences that AGA is the holder of the Purchase Consideration Notes, which have an aggregate total face value equal to the Purchase Consideration Quantum. |
6.2. | Notwithstanding anything to the contrary anywhere else in this Offer Document, the AGAH Sale Parties agree that all the matters to be completed pursuant to this clause 6 shall be deemed to have been completed simultaneously, and that all of them shall be deemed to have not yet been completed if any one or more of them have not been completed. |
AGAH SALE RESOLUTIVE CONDITION |
GENERAL WARRANTIES AND REPRESENTATIONS |
8.1. | Each warranty is given or made at the AGAH Sale Effective Date. |
8.2. | All warranties, representations and undertakings contained in clause 8.3 and clause 8.4 below and elsewhere in this Offer Document are limited and qualified to the extent to which any fact or circumstance giving rise to such limitation or qualification has been disclosed in writing or has been publicly announced. |
8.3. | AGA warrants in favour of Listco that: |
8.3.1. | 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 |
8.3.2. | AGA is entitled to dispose of the AGAH Sale Shares to Listco. |
8.4. | Each AGAH Sale Party warrants to the other AGAH Sale Party that: |
8.4.1. | it is and shall remain validly incorporated in accordance with all applicable laws; |
8.4.2. | it has and shall continue to have the necessary legal capacity to enter into and perform each of its obligations under this Offer Document; |
8.4.3. | the execution of this Offer Document and performance by it of its obligations hereunder do not and shall not: |
8.4.3.1. | contravene any law or regulation to which it is subject; or |
8.4.3.2. | contravene any provision of its founding documents; or |
8.4.3.3. | 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; |
8.4.4. | it is and shall throughout the performance of its obligations under this Agreement remain solvent and liquid. |
IMPLEMENTATION AGREEMENT CLAUSES INCORPORATED BY REFERENCE |
EXECUTION IN COUNTERPARTS AND SIGNATURE |
10.1. | This Offer Document may be accepted by AGA in a separate counterpart to that original signed Offer Document signed by Listco, each of which shall be deemed to be an original, and both of which together shall constitute one and the same sale agreement as at the Offer Acceptance Date. |
10.2. | Delivery of an aforesaid executed counterpart signature page by way of e-mail (PDF) shall be effective delivery of a manually executed counterpart. For the avoidance of doubt, a counterpart signed by electronic signature in any manner provided in ECTA, by e-mail signature, by scanned PDF copy of a signatory’s wet signature and/or by signing using a PDF or other signature tool, shall be an effective and valid mode of execution and delivery of such counterpart, in the absence of evidence to the contrary. |
10.3. | Having each page of this Offer Document initialled by an AGAH Sale Party or having an AGAH Sale Party's signature verified by a witness is not a requirement for this Offer Document (or the AGAH Sale) to be valid and enforceable. |
10.4. | The persons signing this Offer Document in a representative capacity warrant their authority to do so. |
For: | | | ANGLOGOLD ASHANTI (UK) LIMITED | | ||
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Signature: | | | /s/ Robert Hayes | | | |
| | who warrants that he / she is duly authorised thereto | | | ||
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Name: | | | Robert Hayes | | | |
Date: | | | 12 May 2023 | | | |
Place: | | | London | | |
For: | | | ANGLOGOLD ASHANTI LIMITED | | | |
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Signature: | | | | | ||
| | who warrants that he / she is duly authorised thereto | | | ||
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Name: | | | | | ||
Date: | | | | | ||
Place: | | | | |
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INTERPRETATION |
(A) | In this Deed, including its Recitals and Schedules, unless the subject or context requires otherwise, the following expressions shall have the meanings set out opposite them below: |
| | “Acquisition” | | | means the acquisition by the Company of the issued share capital of the Target pursuant to the Acquisition Agreement; | |
| | “Acquisition Agreement” | | | means the offer to purchase agreement dated [•] between the Company and the Original Noteholder; | |
| | “Business Day” | | | means a day, other than a Saturday, Sunday or public holiday, on which commercial banks and foreign exchange markets are open for general business in London; | |
| | “Conditions” | | | means the conditions of the Loan Notes to be endorsed on each Loan Note set out in Part 2 of the Schedule (as from time to time modified in accordance with their terms); | |
| | “Consideration” | | | means the “Purchase Consideration Quantum” (as defined in the Acquisition Agreement); | |
| | “Deed” | | | means this Deed and the Schedules appended to it as modified from time to time; | |
| | “Directors” | | | means the board of directors at the relevant time of the Company or a duly authorised committee thereof; | |
| | “Indebtedness” | | | means the aggregate principal moneys from time to time payable in respect of the Loan Notes; | |
| | “Loan Notes” | | | means the R [•] unsecured loan notes of the Company constituted by this Deed; | |
| | “Loan Note Certificate” | | | shall have the meaning given in Clause 6 (Certificates); | |
| | “Noteholder” | | | means the Original Noteholder or such other person to whom Loan Notes have been transferred in accordance with Clause 7 (Transfer); | |
| | “Original Noteholder” | | | means AngloGold Ashanti Limited; | |
| | “Permitted Transferee” | | | means the Company or any of its Subsidiaries; | |
| | “Redemption Date” | | | means any Business Day on which Loan Notes are redeemed; | |
| | “South African Rand”, “R” or “Rand” | | | means the lawful currency of the Republic of South Africa; | |
| | “Subsidiary” | | | means any subsidiaries as defined in section 1159 of the Companies Act 2006; |
| | “Target” | | | means AngloGold Ashanti Holdings plc, a company incorporated in accordance with the laws of the Isle of Man with registration number 001177V and having its registered office at Falcon Cliff, Palace Road, Douglas, the Isle of Man, IM2 4LB; | |
| | “Tax” | | | means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same); | |
| | “Tax Deduction” | | | means a deduction or withholding for or on account of Tax from a payment under a Loan Note; and |
(B) | Words denoting the singular number shall include the plural number and vice versa; words denoting the masculine gender shall include the feminine gender. References to a “person” shall be construed so as to include any individual, firm, company, corporation, body corporate, government, state or agency of a state, local or municipal authority or government body or any joint venture, association or partnership (whether or not having separate legal personality). |
(C) | References to “Schedules” are to the schedules to this Deed which form part of this Deed and shall have the same force and effect as if set out in the body of this Deed and any reference to “this Deed” or “Deed” shall include the Schedules. |
(D) | Any reference to any provision of any legislation shall include any amendment, modification, re-enactment or extension thereof. |
(E) | All headings and titles are inserted for convenience only and shall not affect the interpretation of this Deed. |
(F) | References to the “nominal amount” of a Loan Note or “par” shall mean the nominal amount of that Loan Note. |
ISSUE, FORM AND STATUS |
(A) | The aggregate nominal amount of the Loan Notes is R [•]. |
(B) | The Loan Notes shall be issued and credited as fully paid in denominations or integral multiples of one South African Rand (R 1) in nominal amount and shall be held subject to and with the benefit of the Conditions. Such Conditions and all the obligations and covenants contained in them on the parts of the Company and the Noteholder shall be binding on the Company and the Noteholder and all persons claiming through them and shall take effect in the same manner as if such Conditions were set out in the body of this Deed. |
(C) | The Loan Notes are direct and unsecured obligations of the Company and shall rank pari passu, without any discrimination or preference between them, with all other unsecured and unsubordinated obligations of the Company, except to the extent provided by law. |
(D) | All payments to be made by the Company in respect of the Loan Notes and under this Deed to the Noteholder shall be made in full without set-off or counterclaim and free and clear of and without any deduction or withholding whatsoever, except to the extent required by law. |
REDEMPTION AND REPAYMENT |
PAYMENTS |
(A) | The Indebtedness payable in respect of the Loan Notes may be paid by telegraphic transfer or bank transfer or by means of Bankers Automated Clearing System to such person(s) and to such bank account(s) as the Noteholder may in writing direct. For the purpose of receiving payments by telegraphic transfer or bank transfer or by means of the Bankers Automated Clearing System, the Noteholder shall, within ten (10) Business Days of a written request from the Company, give full details of the bank account in the name of the Noteholder to whom the sum so payable is to be paid. |
(B) | Any such telegraphic transfer or bank transfer (including any payment made by means of Bankers Automated Clearing System) shall be a satisfaction of the principal represented thereby. All payments under this Deed (including of principal) will be made without any deduction or withholding unless such deduction or withholding is required by law. If a Tax Deduction is required to be made by the Company, the Company shall pay to the Noteholder such additional amount as will, after such Tax Deduction, leave the Noteholder with the same amount as it would have been entitled to receive in the absence of any such requirement to make a Tax Deduction, provided that if the Noteholder shall have transferred the Loan Notes (or the benefit in whole or in part of the Loan Notes) or shall have changed its tax residence or the permanent establishment to which the rights under the Loan Notes are allocated, then the liability of the Company under this Clause 4(B) to pay an additional amount shall be limited to that (if any) which it would have had had no such transfer or change taken place. The parties shall cooperate in completing any procedural formalities necessary to ensure that payments can be made under this Deed without a Tax Deduction. |
ENFORCEMENT |
CERTIFICATES |
TRANSFER |
(A) | All or part of the Loan Notes may be transferred to a Permitted Transferee, subject to the transferor notifying the Company of such transfer in writing and providing the Company with the instrument of transfer. Such instrument of transfer shall be in writing signed by or on behalf of the transferor under its common or corporate seal or under the hand of a duly authorised representative (in which event, the transfer must be accompanied by the authority of such person), and may be in any usual or common form. |
(B) | If requested by the Company in respect of a transfer effected in accordance with paragraph (A) above, the Noteholder shall provide to the Company, as soon as reasonably practicable following such request, either (i) the relevant Loan Note Certificate; (ii) an indemnity in respect of the loss thereof; or (iii) confirmation that the relevant Loan Note Certificate is in the hands of the Company (in the case of (ii) or (iii) both in a form reasonably satisfactory to the Company), and such other evidence as the Directors may reasonably require to prove the title of the transferor and/or its right to transfer the Loan Notes. All instruments of transfer shall be retained by or on behalf of the Company. |
(C) | No fee shall be payable in respect of any transfer. If applicable, a balancing Loan Note Certificate shall be issued without charge to the person or persons entitled to it as soon as possible. |
REPLACEMENT OF LOAN NOTES |
NOTICES |
(A) | Any notice required to be given to the Noteholder by the Company under this Deed may be given either personally, by sending it by post or by sending it as an electronic communication to any address or electronic address (as applicable) which the Noteholder has previously notified to the Company as being suitable for that purpose. |
(B) | Every person who becomes entitled to the Loan Notes shall be bound by any notice in respect of that Loan Note which, before the Loan Notes were transferred to it, has been given to the person(s) from whom it derives its title, whether derived directly or indirectly. |
(C) | Any notice required to be given to the Company by the Noteholder under this Deed may be given either personally, by sending it by post or by sending it as an electronic communication to any address or electronic address (as applicable) which the Company has previously notified to the Noteholder as being suitable for that purpose. |
DEALINGS |
ENDORSEMENT |
PARTIAL INVALIDITY |
GOVERNING LAW AND JURISDICTION |
(A) | This Deed and the Loan Notes, and any dispute or claim arising out of or in connection with the Deed and the Loan Notes or their subject matter (including any non-contractual obligations, disputes or claims arising in connection therewith) (a “Dispute”) shall be governed by and construed in accordance with English law. |
(B) | The courts of England and Wales are to have exclusive jurisdiction to settle any Dispute. |
Executed as a deed by | | | ) | | | |
ANGLOGOLD ASHANTI PLC | | | ) | | | |
acting by two directors | | | ) | | | |
| | | | Director | ||
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| | | | Director |
Certificate No. | | | Transfer number | | | Date of registration | | | Amount Rand |
Names of Noteholder(s) | | | Amount of Notes (in nominal amount) |
AngloGold Ashanti Limited | | | R [•] |
Executed as a deed by | | | ) | | | |
ANGLOGOLD ASHANTI PLC | | | ) | | | |
acting by two directors | | | ) | | | |
| | | | Director | ||
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| | | | Director |
FORM AND STATUS |
REPAYMENT AND REDEMPTION |
(A) | The Company shall at any time be entitled to redeem on any Redemption Date notified to the Noteholder all or part of the outstanding Loan Notes at par. |
(B) | The Noteholder shall at any time be entitled to demand the redemption on any Redemption Date notified to the Company of all or part of the outstanding Loan Notes at par. |
(C) | Wherever Loan Notes are due to be redeemed under any of the provisions hereof, the Noteholder shall, if requested by the Company, as soon as reasonably practicable following such request, deliver up the relevant Loan Note Certificates to the Company or as the Company shall direct and, if any Loan Note Certificate so delivered up represents part of the principal of the Loan Notes not then due to be redeemed, the Company may endorse such Loan Note Certificate with a memorandum of the date and amount paid to the holder of such Loan Note and return the same or may cancel such Loan Note Certificate and, without charge, issue to the Noteholder a new Loan Note Certificate for the balance of the principal due to the Noteholder and not so redeemed. |
PURCHASE |
CANCELLATION |
TRANSFER |
MODIFICATION OF RIGHTS |
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Exclusion of Model Articles |
Definitions |
(A) | The following table gives the meaning of certain words and expressions as they are used in these articles. However, the meaning given in the table does not apply if it is not consistent with the context in which a word or expression appears. At the end of these articles there is a Glossary which explains various words and expressions which appear in the text. The Glossary is not part of the articles and does not affect their meaning. |
“address” | | | includes a number or address used for sending or receiving documents or information by electronic means; |
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“AGA” | | | AngloGold Ashanti Limited, a company incorporated in South Africa with Registration No.: 1944/017354/06; |
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“AGA scheme” | | | means the scheme of arrangement under the Companies Act, 71 of 2008 (South Africa), to be entered into between AGA and its shareholders pursuant to which it is proposed that the company will become the ultimate holding company of the AngloGold Ashanti group; |
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“amount” (of a share) | | | this refers to the nominal amount of the share; |
“these articles” | | | means these articles of association, including any changes made to them, and the expression “this article” refers to a particular article in these articles of association; |
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“beneficial owner” (and related terms) | | | has the meaning given to it in Rule 13d-3 of the Exchange Act; |
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“certificated share” | | | means a share which is normally held in certificated form; |
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“chair” | | | means the chair of the board of directors; |
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“clear days” | | | in relation to the period of a notice, means that period excluding the day when the notice is given or deemed to be given and the day for which it is given or on which it is to take effect; |
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“depositary” | | | means any depositary, clearing agency, custodian, nominee or similar entity authorised under arrangements entered into by the company or otherwise approved by the directors that holds legal title to shares for the purposes of facilitating beneficial ownership of such shares (or the transfer thereof) by other persons, and may include a person that holds, or is interested directly or indirectly, including through a nominee, in, shares, or rights or interests in respect thereof, and that issues certificates, instruments, securities or other documents of title, or maintains accounts, evidencing or recording the entitlement of the holders thereof, or account holders, to or to receive such shares, rights or interests |
| | and shall include, where so approved by the directors, the trustees (acting in their capacity as such) of any employees’ share scheme established by the company, and, for the avoidance of doubt, the DTC depositary; | |
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“directors” | | | means the executive and non-executive directors of the company who make up its board of directors (and “director” means any one of them) or, where applicable, the directors present at a meeting of the directors at which a quorum is present; |
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“DTC depositary” | | | means any depositary, clearing agency, custodian, nominee or similar entity that holds legal title to the shares in the capital of the company for The Depository Trust Company, including Cede & Co.; |
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“electronic facility” | | | includes (without limitation) website addresses and conference call systems and any device, system, procedure, method or other facility providing an electronic means of attendance at and/or participation in a general meeting decided by the directors under these articles and available in respect of that meeting; |
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“Exchange Act” | | | means the Securities Exchange Act of 1934 of the United States, as amended, and the rules and regulations promulgated thereunder; |
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“holder” | | | in relation to any share, means the person whose name is entered in the register as the holder of that share; |
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“independent third party sale” | | | means an outright sale of shares to a person who is an independent third party who is not connected with the seller of the shares or with any person appearing to be interested in the shares. Any sale through any stock exchange or by way of acceptance of a takeover offer will be treated as an outright sale to an independent third party. For this purpose, any associate (as that term is defined in section 435 of the Insolvency Act 1986) is included in the class of persons who are connected with the shareholder or any person appearing to be interested in the shares; |
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“legislation” | | | means every statute (and any orders, regulations or other subordinate legislation made under it) applying to the company and any rules and regulations of the New York Stock Exchange and the Johannesburg Stock Exchange, for so long as they apply to the company; |
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“longstop date” | | | means (i) the date specified in the scheme document to be published by AGA in connection with the AGA scheme as being the effective date of the AGA scheme; or (ii) such other date as the company may, in its sole discretion, determine; |
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“ordinary shareholder” | | | means a holder of ordinary shares; |
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“ordinary shares” | | | means the company’s ordinary shares; |
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“paid up” | | | means paid up or treated (credited) as paid up; |
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“pay” | | | includes any kind of reward or payment for services; |
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“public announcement” | | | means disclosure in a press release reported by a United Kingdom or United States news service or in a document filed or furnished by the company with or to the U.S. Securities and Exchange Commission; |
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“register” | | | means the company’s register of shareholders and, at any time when the company has shares in issue which are uncertificated shares, means the operator register of members (maintained by the operator of a relevant system) and the issuer register of members (maintained by the company); |
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“relevant system” | | | means the computer-based system, and procedures, which enable title to units of share to be evidenced and transferred without a written instrument and which facilitate supplementary and incidental matters in accordance with the uncertificated securities rules; |
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“seal” | | | means any common or official seal that the company may be permitted to have under the legislation; |
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“secretary” | | | means the secretary, or (if there are joint secretaries) any one of the joint secretaries, of the company and includes an assistant or deputy secretary and any person appointed by the directors to perform any of the duties of the secretary; |
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“Securities Act” | | | means the Securities Act of 1933 of the United States, as amended, and the rules and regulations promulgated thereunder; |
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“shareholder” | | | means a holder of the company’s shares; |
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“Takeover Code” | | | means the City Code on Takeovers and Mergers as promulgated by the Takeover Panel, as amended and/or supplemented from time to time; |
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“Takeover Panel” | | | means the Panel on Takeovers and Mergers or such other authority designated as the supervising authority in the United Kingdom to carry out certain regulatory functions in relation to takeovers; |
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“the office” | | | means the company’s registered office; |
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“uncertificated securities rules” | | | means any provision in the legislation of England and Wales which relates to uncertificated shares or to the transfer of uncertificated shares or how the ownership of uncertificated shares is evidenced; |
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“uncertificated share” | | | means a share which is noted on the shareholders’ register as being held in uncertificated form; |
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“United Kingdom” | | | means Great Britain and Northern Ireland; and |
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“working day” | | | means a day (other than a Saturday, Sunday or public holiday) when banks are open for business in the City of London, New York City and Johannesburg (other than for trading and settlement solely in euro). |
(B) | References in these articles to a document being “signed” or to “signature” include references to its being executed under hand or under seal or by any other method and, in the case of a communication in electronic form, such references are to its being authenticated as specified by the legislation. |
(C) | References in these articles to “writing” and to any form of “written” communication include references to any method of representing or reproducing words, symbols or other information in a legible and non-transitory form whether sent or supplied in electronic form or otherwise. |
(D) | Any words or expressions defined in the legislation in force when these articles or any part of these articles are adopted will (if not inconsistent with the subject or context in which they appear) have the same meaning in these articles or that part save the word “company” includes any body corporate. |
(E) | References to a meeting: |
(i) | refer to a meeting convened and held in any manner permitted by these articles, including a general meeting at which any of those entitled to be present attend and participate by means of an electronic facility and/or attend and participate at a satellite meeting, and such persons shall be deemed to be present at that meeting for all purposes of the legislation and these articles and “attend”, “attending”, “attendance”, “participate”, “participating” and “participation” shall be construed accordingly; and |
(ii) | will not be taken as requiring more than one person to be present if any quorum requirement can be satisfied by one person. |
(F) | Headings in these articles are only included for convenience. They do not affect the meaning of these articles. |
(G) | Where these articles refer to a person who is entitled to a share by law, this means a person who has been noted in the register as being entitled to a share as a result of the death or bankruptcy of a shareholder or some other event which gives rise to the transmission of the share by operation of law. |
(H) | A reference to any statute, statutory provision or listing rule shall be construed as a reference to the same as it may have been, or may from time to time be, amended, modified or re- enacted. |
(I) | In these articles: |
(i) | powers of delegation shall not be restrictively construed, but the widest interpretation shall be given to them; |
(ii) | no power of delegation shall be limited by the existence or, except where expressly provided by the terms of delegation, the exercise of that or any other power of delegation; and |
(iii) | except where expressly provided by the terms of delegation, the delegation of a power shall not exclude the concurrent exercise of that power by any other person who is for the time being authorised to exercise it. |
3. |
4. |
5. |
(i) | allot shares in the company, and to grant rights to subscribe for or convert any security into shares in the company, up to a nominal amount of $253,659,735, such authority to apply until the date that is five years after the date on which these articles were adopted; and |
(ii) | make an offer or agreement which would or might require shares to be allotted, or rights to subscribe for or convert any security into shares to be granted after the expiry of the authority described in (i) above and the directors may allot shares and grant rights in pursuance of that offer or agreement as if this authority had not expired, provided that the offer or agreement was made before the authorisation expired. |
6. |
7. |
8. |
9. |
(i) | a quorum is one or more shareholders present in person or by proxy who together hold at least one third in amount of the issued shares of the class (excluding any shares of that class held as treasury shares) provided that where a shareholder is present by one or more proxies, each proxy shall be treated as holding only the shares in respect of which it is authorised to exercise voting rights; |
(ii) | any shareholder who is present in person or by proxy and entitled to vote can demand a poll; and |
(iii) | at an adjourned meeting, one person entitled to vote and who holds shares of the class, or a proxy for such person, will be a quorum. |
10. |
11. |
(A) | The directors can decide how to deal with any shares in the company. They can, for instance, offer the shares for sale, reclassify them, grant options to acquire them, allot them or dispose of the shares in any other way. The directors are free to decide who they deal with, when they deal with the shares and the terms on which they deal with the shares. However, in making their decision they must take account of: |
(i) | the provisions of the legislation relating to authority, pre-emption rights and other matters; |
(ii) | the provisions of these articles; |
(iii) | any resolution passed by the shareholders; and |
(iv) | any rights attached to existing shares. |
(B) | Subject to the remaining terms of these articles, the ordinary shares shall have attached to them full voting, dividend and capital distribution rights, including on a winding up; they do not confer any rights of redemption. |
12. |
13. |
14. |
(A) | The company can, under the legislation, send out notices to those it knows or has reasonable cause to believe have an interest in its shares. In the notice, the company will ask for details of those who have an interest and the extent of their interest in a particular holding of shares. In these articles this notice is referred to as a “statutory notice”. A person who fails to give the information requested by a statutory notice or makes a false or inadequate statement as referred to in article 14(B) is referred to as an “identified person”. The shares in respect of which an identified person fails to give the information requested by a statutory notice or makes a false or inadequate statement as referred to in article 14(B) are referred to as the “identified shares”. |
(B) | Where a person receives a statutory notice, they must comply with it within a reasonable period and in any event within 14 days. If the person does not do so or if the person makes a statement in response to the notice which is false or inadequate in some important way, then the company shall have the power, in respect of any identified shares, to: |
(i) | determine that the identified shares no longer give the shareholder who holds such identified shares or any other person any right to attend, either personally or by proxy, a shareholders’ meeting; |
(ii) | determine that any votes cast or purported to be cast by or on behalf of the identified person (or any person acting in concert with them) or in respect of the identified shares, shall be disregarded and not taken into account at any general meeting or at any separate meeting of the holders of a class of shares or on any poll; |
(iii) | determine that, without prejudice to the right of any shareholder under the legislation, the identified shares no longer give the holder of the identified shares or any other person any right to requisition a resolution at an annual general meeting and/or to call a general meeting; |
(iv) | determine that any dividend or other distribution (or any part of a dividend or other distribution) or other amount payable in respect of the identified shares shall be withheld by the company, which shall have no obligation to pay interest on it, and that the identified person shall not be entitled to elect to receive shares instead of a dividend; |
(v) | determine that no transfer of any certificated identified shares to or from the identified person (or any person acting in concert with them) shall be registered unless the directors are satisfied that the transfer would constitute an independent third party sale. In order to enforce the restriction in this sub-paragraph (which, for the avoidance of doubt, shall not apply to any shares held by a DTC depositary), the directors can give notice to the relevant shareholder requiring the shareholder to change identified shares which are uncertificated shares to certificated shares by the time given in the notice and to keep them in certificated form for as long as the directors require. The notice can also say that the relevant shareholder may not change any identified shares which are certificated shares to uncertificated shares. If the shareholder does not comply with the notice, the directors can authorise any person to instruct the operator of the relevant system to change any identified shares which are uncertificated shares to certificated shares in the name and on behalf of the relevant shareholder; and/or |
(vi) | where the identified person is not a shareholder, the directors can require the shareholder holding the identified shares to transfer, at the company’s direction, the identified shares to the identified person or to such other nominee as the company may determine in its sole discretion for nil consideration and on such other terms and conditions as the company may determine. To give effect to any transfer of shares required under this article, the holder of the identified shares hereby irrevocably and unconditionally appoints the company as its attorney to transfer the identified shares and do all such other things and execute and deliver all such documents or deeds as may, in the sole discretion of the company, be necessary or desirable to transfer the identified shares on such terms and conditions as the company may determine. The company, as attorney, shall be empowered to execute and deliver as transferor a stock transfer form on behalf of the relevant shareholder and the company may register the transferee as holder thereof and issue to it certificates for the identified shares. The provisions of this article 14(B)(vi) shall not apply to any identified shares held by a DTC depositary. |
(C) | Where the company decides to exercise any of the powers set out in (B) above, it shall send out a notice, known as a “restriction notice”, to the identified person notifying them of this and specifying which of the powers the company is exercising in respect of the identified shares. The exercise of any of the powers set out in (B) above by the company shall not be effective until a restriction notice in respect of such exercise has been delivered to the identified person. |
(D) | Once a restriction notice has been given, the directors are free to cancel it or exclude any shares from it at any time they think fit. In addition, they must cancel the restriction notice within seven days of being satisfied that all information requested in the statutory notice has been given. Also, where the identified person has proved to the reasonable satisfaction of the company that it has transferred its interest in any of the identified shares to a new beneficial owner and the directors are satisfied that such transfer was an independent third party sale, they must cancel the restriction notice within seven days of receipt of notification of the sale. If a restriction notice is cancelled or ceases to have effect in relation to any shares, any moneys relating to those shares which were withheld will be paid to the person who would have been entitled to them or as that person directs. |
(E) | The restriction notice will apply to any further shares issued in right of the identified shares. The directors can also make the restrictions in the restriction notice apply to any right to an allotment of further shares associated with the identified shares. |
(F) | If an identified person receives a restriction notice, the identified person can ask the company for a written explanation of why the notice was given, or why it has not been cancelled. The company must respond within 14 days of receiving the request. |
(G) | If the company gives a statutory notice or a restriction notice to a person it has reasonable cause to believe has an interest in any of its shares, it will also give a copy at the same time to the person who is the registered holder of the identified shares. If the company does not do so or the registered holder does not receive the copy, this will not invalidate the statutory notice or the restriction notice. |
(H) | If the company gives a statutory notice to a person it has reasonable cause to believe has an interest in any of its shares and such shares are held by a depositary, the provisions of this article 14 shall be deemed to apply only to those identified shares held by the depositary in which such person appears to be interested and not (so far as that person’s apparent interest is concerned) to any other shares held by the depositary in which such person does not appear to have an interest. |
(I) | If a statutory notice has been served by the company on a DTC depositary, the obligation of the DTC depositary shall be limited to disclosing to the company such information relating to any person appearing interested in the shares held by it as has been recorded by the DTC depositary and the provision of such information shall be at the company’s cost. |
(J) | This article does not restrict in any way the provisions of the legislation which apply to failures to comply with notices under the legislation. |
15. |
(A) | The directors can allow the ownership of shares to be evidenced without share certificates and for these shares to be held, evidenced and transferred through a relevant system, provided they comply with the uncertificated securities rules. |
(B) | If the company has any shares in issue which are uncertificated shares, these articles apply to those shares, but only as far as they are consistent with: |
(i) | holding shares in an uncertificated form; |
(ii) | transferring shares through a relevant system; |
(iii) | any provision of the uncertificated securities rules; or |
(iv) | the company exercising any of its powers or functions or doing anything through the relevant system; |
(C) | Uncertificated shares can be changed to become certificated shares and certificated shares can be changed to become uncertificated shares, provided the requirements of the uncertificated securities rules are met. |
(D) | If under these articles or the legislation the company can sell, transfer or otherwise dispose of, forfeit, re-allot, accept the surrender of or otherwise enforce a lien over an uncertificated share, then, subject to these articles and the legislation, the directors may: |
(i) | require the holder of that uncertificated share by written notice to change that uncertificated share to a certificated share within a period specified in the notice and to keep it as a certificated share for as long as the directors require; |
(ii) | appoint any person to take any other steps in the name of the holder of that share as may be necessary to effect the transfer of that share and these steps will be as effective as if they had been taken by the registered holder of that share; and |
(iii) | take any other action that the directors consider appropriate to achieve the sale, transfer, disposal, forfeiture, re-allotment or surrender of that share or otherwise to enforce a lien in respect of that share. |
(E) | Unless the directors decide otherwise, uncertificated shares held by a shareholder will be treated as separate holdings from any certificated shares which that shareholder holds. |
(F) | Unless the uncertificated securities rules otherwise require or the directors otherwise determine, shares which are issued or created from or in respect of uncertificated shares will be uncertificated shares and shares which are issued or created from or in respect of certificated shares will be certificated shares. |
(G) | The company can assume that entries on any record of securities kept by it as required by the uncertificated securities rules and regularly reconciled with the relevant operator register of securities are a complete and accurate reproduction of the particulars entered in the operator register of securities and therefore will not be liable in respect of anything done or not done by or on its behalf in reliance on such assumption; in particular, any provision of these articles which requires or envisages action to be taken in reliance on information contained in the register allows that action to be taken in reliance on information contained in any relevant record of securities (as so maintained and reconciled). |
Right to Share Certificates |
(A) | When a shareholder is first registered as the holder of any class of certificated shares, the shareholder is entitled, free of charge, to one certificate for all of the certificated shares of that class which they hold. If a shareholder holds certificated shares of more than one class, the shareholder is entitled to a separate share certificate for each class. This does not apply if the legislation allows the company not to issue share certificates. |
(B) | If a shareholder receives more certificated shares of any class, the shareholder is entitled, without charge, to a certificate for the extra shares. |
(C) | If a shareholder transfers some of the shares represented by a share certificate, the shareholder is entitled, free of charge, to a new certificate for the balance to the extent the balance is to be held in certificated form. |
(D) | Where a certificated share is held jointly, the company does not have to issue more than one certificate for that share. When the company delivers a share certificate to one joint shareholder, this is treated as delivery to all of the joint shareholders. |
(E) | The time limit for the company to provide a share certificate under this article is as prescribed by the legislation or, if this is earlier, within any prescribed time limit or within a time specified when the shares were issued. |
Replacement of Share Certificates |
(A) | If a shareholder has two or more share certificates for shares of the same class, the shareholder can ask the company for these to be cancelled and replaced by a single new certificate. The company must comply with this request. |
(B) | A shareholder can ask the company to cancel and replace a single share certificate with two or more certificates for the same total number of shares. The company may comply with this request. |
(C) | A shareholder can ask the company for a new certificate if the original is: |
(i) | damaged or defaced; or |
(ii) | said to be lost, stolen or destroyed. |
(D) | If a certificate has been damaged or defaced, the company can require the certificate to be returned to it before issuing a replacement. If a certificate is said to be lost, stolen or destroyed, the company can require satisfactory evidence of this and insist on receiving an indemnity before issuing a replacement. |
(E) | The directors can require the shareholder to pay the company’s exceptional out-of-pocket expenses incurred in connection with the issue of any certificates under this article. |
(F) | Any one joint shareholder can request replacement certificates under this article. |
Execution of Share Certificates |
Share Certificates Sent at Holder’s Risk |
Company’s Lien on Shares Not Fully Paid |
Enforcing Lien by Sale |
(i) | the money owed by the shareholder must be payable immediately; |
(ii) | the directors must have given notice to the shareholder. The notice must state the amount of money due, it must demand payment of this sum and state that the shareholders’ shares may be sold if the money is not paid; |
(iii) | the notice must have been served on the shareholder or on any person who is entitled to the shares by law and can be served in any way that the directors decide; and |
(iv) | the money has not been paid by at least 14 clear days after the notice has been served. |
Application of Proceeds of Sale |
Calls |
(i) | make calls at any time and as often as they think fit; |
(ii) | decide when and where the money is to be paid; |
(iii) | decide that the money may be paid by instalments; and |
(iv) | revoke or postpone any call. |
Timing of Calls |
Liability of Joint Holders |
Interest Due on Non-Payment |
Sums Due on Allotment Treated as Calls |
Power to Differentiate |
Payment of Calls in Advance |
Notice if Call or Instalment Not Paid |
Form of Notice if Call or Instalment Not Paid |
(i) | demand payment of the amount immediately payable, plus any interest and expenses; |
(ii) | give the date by when the total amount due must be paid. This must be at least 14 clear days after the date of the notice; |
(iii) | say where the payment must be made; and |
(iv) | say that if the full amount demanded is not paid by the time and at the place stated, the company can forfeit the shares on which the call or instalment is outstanding. |
Forfeiture for Non-Compliance with Notice |
Notice after Forfeiture |
Sale of Forfeited Shares |
(A) | A forfeited share becomes the property of the company and the directors can sell or dispose of it on any terms and in any way that they decide. This can be with, or without, a credit for any amount previously paid up for the share. It can be sold or disposed of to any person, including the previous shareholder or the person who was previously entitled to the share by law. The directors can, if necessary, authorise any person to transfer a forfeited share. |
(B) | After a share has been forfeited, the directors can cancel the forfeiture, but only before the share has been sold or disposed of. This cancellation of forfeiture can be on any terms the directors decide. |
Arrears to be Paid Notwithstanding Forfeiture |
Statutory Declaration as to Forfeiture |
(A) | A director or the secretary can make a statutory declaration declaring: |
(i) | that they are a director or the secretary of the company; |
(ii) | that a share has been properly forfeited under the articles; and |
(iii) | when the share was forfeited. |
(B) | If such a declaration is delivered to a new holder of a share along with a completed transfer form (if one is required), this gives the buyer good title. The new shareholder does not need to take any steps to see how any money paid for the share is used. The new shareholder’s ownership of the share will not be affected if the steps taken to forfeit, sell or dispose of the share were invalid or irregular, or if anything that should have been done was not done. |
Transfer |
(A) | Certificated shares |
(B) | Uncertificated shares |
(C) | Entry on register |
Signing of Transfer |
(A) | A share transfer form for certificated shares must be signed or made effective in some other way by, or on behalf of, the person making the transfer. |
(B) | In the case of a transfer of a certificated share, where the share is not fully paid, the share transfer form must also be signed or made effective in some other way by, or on behalf of, the person to whom the share is being transferred. |
(C) | If the company registers a transfer of a certificated share, it can keep the transfer form. |
Rights to Decline Registration of Partly Paid Shares |
Other Rights to Decline Registration |
(A) | Certificated shares |
(i) | A share transfer form cannot be used to transfer more than one class of shares. Each class needs a separate form. |
(ii) | Transfers cannot be in favour of more than four joint holders. |
(iii) | The share transfer form must be properly stamped to show payment of any applicable stamp duty or certified or otherwise shown to the satisfaction of the directors to be exempt from stamp duty and must be delivered to the office, or any other place decided on by the directors. The transfer form must be accompanied by the share certificate relating to the shares being transferred, unless the transfer is being made by a person to whom the company was not required to, and did not send, a certificate. The directors can also ask (acting reasonably) for any other evidence to show that the person wishing to transfer the share is entitled to do so and, if the share transfer form is signed by another person on behalf of the person making the transfer, evidence of the authority of that person to do so. |
(B) | Uncertificated shares |
(i) | Registration of a transfer of uncertificated shares can be refused in the circumstances set out in the uncertificated securities rules. |
(ii) | Transfers cannot be in favour of more than four joint holders. |
(C) | Renunciations |
No Fee for Registration |
Untraced Shareholders |
(A) | The company can sell any shares at the best price reasonably obtainable at the time of the sale if: |
(i) | for a 12-year period, (a) the shares have been in issue either as certificated shares or as uncertificated shares, (b) at least three cash dividends have become payable on the shares, and (c) no dividend has been cashed during that period or otherwise satisfied by the transfer of funds to a bank account or through a relevant system; |
(ii) | after the 12-year period, the company has sent a notice to the last known address the company has for the relevant shareholder or to the address at which the company can give notices under these articles, stating that it intends to sell the shares. Before sending such notice, the company must have used such efforts as it considers reasonable to trace the relevant shareholder or person entitled to the shares by law; and |
(iii) | during the 12-year period and for three months after sending the notice referred to in (ii) above, the company has not heard from the relevant shareholder or any person entitled to the shares by law. |
(B) | The company can also sell at the best price reasonably obtainable at the time of the sale any additional shares in the company issued either as certificated shares or as uncertificated shares in right of any share to which paragraph (A) applies (or in right of any share so issued), if the criteria in paragraph (A)(ii) and (iii) are satisfied in relation to the additional shares (but as if the words “after the 12-year period” were omitted from paragraph (A)(ii) and the words “during the 12-year period and” were omitted from paragraph (A)(iii)) and no dividend has been cashed on these shares or otherwise satisfied by the transfer of funds to a bank account or through the relevant system. |
(C) | To sell any shares in this way, the directors can appoint anyone to transfer the shares. This transfer will be just as effective as if it had been signed by the holder, or by a person who is entitled to the shares by law. Any persons to whom the shares are transferred will not be bound to concern themselves as to what is done with the purchase moneys nor will their ownership be affected even if the sale is irregular or invalid in any way. |
(D) | The net proceeds of sale (after payment of the costs of sale) will be forfeited by the relevant holder of, or person entitled by transmission to, the shares and will belong to the company. The company shall not be liable in any respect, nor be required to account, for such proceeds (or any part thereof) to the former holder of, or person entitled by transmission to, the shares or any other person previously entitled to the shares in question. |
(E) | If the company sells shares in accordance with this article, any dividend or other sum that has not been cashed or claimed in respect of those shares and that has not already been forfeited under these articles shall be forfeited and shall revert to the company when the shares are sold. The company shall be entitled to use such dividends or other sums for the company’s benefit. |
Transmission on Death |
(A) | When a sole shareholder or a shareholder who is the last survivor of joint shareholders dies, that shareholder’s personal representatives will be the only people who will be recognised as being entitled to that shareholder’s shares. |
(B) | If a joint shareholder dies, the surviving joint shareholder or shareholders will be the only people who will be recognised as being entitled to that shareholder’s shares. |
(C) | However, this article does not discharge the estate of any shareholder from any liability. |
Entry of Transmission in Register |
Election of Person Entitled by Transmission |
(A) | Subject to these articles, a person who becomes entitled to a share by law can either be registered as the shareholder or choose another person to become the shareholder. |
(B) | If a person who is entitled to a certificated share by law wants to be registered as a shareholder, that person must deliver or send a notice to the company saying that they have made this decision. This notice will be treated as a transfer form. All the provisions of these articles about registering transfers of certificated shares apply to it. The directors have the same power to refuse to register a person entitled to certificated shares by law as they would have had to refuse to register a transfer by the person who was previously entitled to the shares. |
(C) | If a person entitled to an uncertificated share by law wants to be registered as a shareholder, that person must do so in accordance with the uncertificated securities rules. All the provisions of these articles about registering transfers of uncertificated shares will apply and the same power to refuse to register a person entitled to an uncertificated share by law will apply as would have applied to refuse to register a transfer by the person who was previously entitled to the shares. |
(D) | If a person who is entitled to a certificated share by law wants the share to be transferred to another person, that person must do this by signing a transfer form to the person they have selected. The directors have the same power to refuse to register the person selected as they would have had to refuse to register a transfer by the person who was previously entitled to the shares. |
(E) | If a person who is entitled to an uncertificated share by law wants the share to be transferred to another person, that person must do this using the relevant system. The same power to refuse to register the person selected will apply as would have applied to refuse to register a transfer by the person who was previously entitled to the shares. |
Rights of Person Entitled by Transmission |
(A) | Where a person becomes entitled to a share by law, the rights of the registered shareholder in relation to that share will cease to have effect. |
(B) | A person who is entitled to a share by law is entitled to any dividends or other money relating to the share, even though the person is not registered as the holder of the share, on supplying evidence reasonably required to show the person’s title to the share. However, the directors can send written notice to the person saying the person must either be registered as the holder of the share or transfer the share to some other person. If the person entitled to a share by law does not do this within 60 days of the notice, the directors can withhold all dividends or other money relating to the share until the person does. |
(C) | Unless such person is registered as the holder of the share, the person entitled to a share by law is not entitled to: |
(i) | receive notices of shareholders’ meetings or attend or vote at these meetings; or |
(ii) | exercise any of the other rights of a shareholder in relation to these meetings, |
Sub-division |
Fractions |
Participation in General Meetings |
(A) | The directors can make whatever arrangements they think fit to allow those entitled to do so to attend and participate in any general meeting. |
(B) | Unless the notice of meeting says otherwise or the chair of the meeting decides otherwise, a general meeting will be treated as taking place where the chair of the meeting is at the time of the meeting. |
(C) | Two or more persons who may not be in the same place as each other attend and participate in a general meeting if they are able to exercise their rights to speak and vote at that meeting. A person is able to exercise the right to speak at a general meeting if that person can communicate to all those attending the meeting while the meeting is taking place. A person is able to exercise the right to vote at a general meeting if that |
(D) | When deciding whether a person is attending or participating in a meeting by means of an electronic facility, it is immaterial where that person is or how that person is able to communicate with others who are attending and participating. |
(E) | Where persons can participate at a general meeting by means of an electronic facility, any document required to be on display or available for inspection will be made available for the required period in electronic form to those persons entitled to inspect it and this will satisfy any such requirement. |
Electronic Facilities and Satellite Meetings |
(A) | The directors can decide to let persons entitled to attend and participate in a general meeting do so by simultaneous attendance and participation by means of an electronic facility. Shareholders present in person or by proxy by means of such electronic facility will be counted in the quorum for, and entitled to participate in, the general meeting. |
(B) | The directors can also decide to let persons entitled to attend and participate in a general meeting do so by simultaneous attendance and participation at a satellite meeting place anywhere in the world (referred to in these articles as a satellite meeting). Shareholders present in person or by proxy at satellite meeting places shall be counted in the quorum for, and entitled to participate in, the general meeting. The satellite meeting will be treated as taking place where the chair of the meeting is at the time of the meeting and the powers of the chair will apply to the satellite meeting. The directors may appoint a person (a satellite chair) to preside at each satellite meeting. Each satellite chair will act on instructions from the chair of the meeting and may also take such action as the satellite chair considers necessary to maintain the proper and orderly conduct of the satellite meeting and shall have all powers necessary or desirable for such purposes. |
(C) | Any general meeting at which electronic facilities have been made available and any satellite meeting will be duly constituted and its proceedings valid if the chair is satisfied that adequate facilities have been made available to enable all members attending the meeting by whatever means and at all the meeting places to participate in the business for which the meeting has been called. |
(D) | All persons seeking to attend and participate in a general meeting by way of electronic facility are responsible for having in place the necessary means to enable them to do so. Subject to the right of the chair to adjourn a general meeting under these articles, any inability of a person to attend or participate in a general meeting by means of electronic facility, or any interruption to a person being so able, shall not invalidate the proceedings of that meeting. |
Omission or Non-Receipt of Notice |
(A) | If any notice, document or other information relating to any meeting or other proceeding is accidentally not sent or supplied, or is not received (even if the company becomes aware of such failure to send or supply or non-receipt), the meeting or other proceeding will not be invalid as a result. |
(B) | A shareholder present in person or by proxy at a shareholders’ meeting is treated as having received proper notice of that meeting and, where necessary, of the purpose of that meeting. |
Changes to Arrangements for General Meetings |
Quorum |
Procedure if Quorum Not Present |
(A) | This article applies 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. |
(B) | If the meeting was called by a requisitioning person (as defined in article 78 below) it will be cancelled. 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. |
(C) | 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. |
Security, Health and Safety and Access Arrangements |
(A) | The directors or the secretary can put in place arrangements, both before and during any general meeting, which they consider to be appropriate for the proper and orderly conduct of the general meeting and/or the health and safety of people attending it. This authority includes power to refuse physical or electronic entry to, or remove (physically or electronically) from meetings, people who fail to comply with the arrangements. The notice of meeting does not have to give details of any such arrangements or restrictions imposed under this article and the presence of such arrangements or restrictions shall not invalidate the business conducted at the meeting. |
(B) | Where a general meeting is held partly by means of an electronic facility, the directors or the secretary may make any arrangement and impose any requirement or restriction that is necessary to ensure the identification of those taking part by this means and the security of the electronic facility. |
Chair of General Meeting |
(A) | The chair will be the chair of the meeting at every general meeting, if they are willing and able to take the chair. |
(B) | If the company does not have a chair, or if they are not willing and able to take the chair, a deputy chair will chair the meeting if any such deputy is willing and able to take the chair. If more than one deputy chair is present they will agree between themselves who will take the chair and if they cannot agree, the deputy chair who has been a director longest will take the chair. |
(C) | If the company does not have a chair or a deputy chair, or if neither the chair nor a deputy chair is willing and able to chair the meeting, after waiting five minutes from the time that a meeting is due to start, the directors who are present will choose one of themselves to act as chair of the meeting. If there is only one director present, the director will be the chair of the meeting, if such person agrees. |
(D) | If there is no director willing and able to be the chair of the meeting, then the persons who are present at the meeting and entitled to vote will decide which one of them is to be the chair of the meeting. |
(E) | If the chair of the meeting is participating in that meeting electronically and becomes disconnected from the meeting for any period of time, another person (determined in accordance with this article) shall preside as chair of the meeting for such period. If no replacement chair is appointed and presiding over the general meeting, and the original chair has not regained electronic connection with the meeting, within 30 minutes after the original chair becomes disconnected from the meeting, the meeting shall be adjourned to a time and place (or places in the case of a satellite meeting) to be fixed by the directors. |
(F) | Nothing in these articles is intended to restrict or exclude any of the powers or rights of a chair of a meeting which are given by law. |
Orderly Conduct |
Entitlement to Attend and Speak |
Adjournments |
(A) | The chair of a meeting can adjourn the meeting before or after it has started, and whether or not a quorum is present, if the chair considers that: |
(i) | there is not enough room for the number of shareholders and proxies who can and wish to attend the meeting; |
(ii) | the behaviour of anyone present prevents, or is likely to prevent, the business of the meeting being carried out in an orderly way; |
(iii) | an adjournment is necessary for any other reason, so that the business of the meeting can be properly carried out; or |
(iv) | the facilities or security at the place of the meeting (or places in the case of a satellite meeting) or the electronic facility provided for the general meeting have become inadequate or are otherwise not sufficient to allow the meeting to be conducted as intended. |
(B) | The chair of a meeting can also adjourn a meeting which has a quorum present for any other reason if this is agreed by the meeting. This can be to a time, date and place (or places in the case of a satellite meeting) and with such means of attendance and participation proposed by the chair of the meeting or the adjournment can be indefinite. The chair of the meeting must adjourn the meeting if the meeting directs the chair to. In these circumstances the meeting will decide how long the adjournment will be and where it will adjourn to. If a meeting is adjourned indefinitely, the directors will fix the time, date and place (or places in the case of a satellite meeting) of, and the means of attendance and participation at, the adjourned meeting. |
(C) | A reconvened meeting can only deal with business that could have been dealt with at the meeting which was adjourned. |
(D) | Meetings can be adjourned more than once. |
Notice of Adjournment |
Amendments to Resolutions |
(A) | Amendments can be proposed to any resolution if they are clerical amendments or amendments to correct some other obvious error in the resolution. No other amendments can be proposed to any special resolution. |
(B) | Amendments to an ordinary resolution which are within the scope of the resolution can be proposed if: |
(i) | notice of the proposed amendment has been received by the company at the office at least two working days before the date of the meeting, or adjourned meeting; or |
(ii) | the chair of the meeting decides that the amendment is appropriate for consideration by the meeting. |
Amendments Ruled Out of Order |
Votes of Members |
Method of Voting |
(A) | For so long as any shares are held in a settlement system operated by The Depository Trust Company, any resolution put to the vote of a general meeting (held in whatever form) must be decided on a poll. |
(B) | A resolution put to the vote at a general meeting held partly by means of an electronic facility will, unless the chair of the meeting directs that it shall be decided on a show of hands in which case the rest of this article shall apply, be decided on a poll, which poll votes may be cast by such electronic or other means as the directors decide are appropriate. Any such poll will be treated as having been validly demanded at the time fixed for the holding of the meeting. Subject to this, a resolution put to the vote at any general meeting will be decided on a show of hands unless a poll is demanded when, or before, the chair of the meeting declares the result of the show of hands. Subject to the legislation, a poll can be demanded by: |
(i) | the chair of the meeting; |
(ii) | at least five persons at the meeting who are entitled to vote; |
(iii) | one or more shareholders at the meeting who are entitled to vote (or their proxies) and who hold between them at least ten per cent. 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 shall be treated as holding only the shares in respect of which it is authorised to exercise voting rights; or |
(iv) | one or more shareholders at the meeting who are entitled to vote (or their proxies) and whose shares are fully paid up and represent at least ten per cent. 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 shall be treated as holding only the shares in respect of which it is authorised to exercise voting rights. |
Procedure if Poll Demanded |
When Poll is to be Taken |
Continuance of Other Business after Poll Demand |
Votes of Joint Holders |
Voting on behalf of Incapable Member |
No Right to Vote where Sums Overdue on Shares |
Objections or Errors in Voting |
(A) | If: |
(i) | any objection to the right of any person to vote is made; |
(ii) | any votes have been counted which ought not to have been counted or which might have been rejected; or |
(iii) | any votes are not counted which ought to have been counted, |
(B) | The company will not be obliged to check whether a proxy or company representative has voted in accordance with a shareholder’s instructions and if a proxy or company representative fails to do so, this will not affect the decision of the meeting (or adjourned meeting) or poll. |
Appointment of Proxies |
(A) | If the proxy form: |
(i) | is in writing, it shall be executed by the shareholder or the shareholder’s attorney authorised in writing or, if the shareholder is a company, either under its seal or under the hand of an officer, attorney or other person signed by the shareholder appointing the proxy, or by the shareholder’s attorney; |
(ii) | is in electronic form, it shall be executed by or on behalf of the shareholder or otherwise authenticated by the shareholder in a manner satisfactory to the directors; or |
(iii) | relates to shares held by a depositary, it shall be in a form or manner of communication approved by the company, (which may be in hard copy or electronic form) to be provided to the company by certain third parties on behalf of the depositary. |
(B) | The directors may (but need not) allow proxy appointments to be made in electronic form and if they do, they may make such appointments subject to such stipulations, conditions or restrictions and require such evidence of valid execution or authentication as the directors see fit. |
(C) | If a shareholder appoints more than one proxy and the proxy forms appointing those proxies would give those proxies the apparent right to exercise votes on behalf of the shareholder in a general meeting over more shares than are held by the shareholder, then each of those proxy forms will be invalid and none of the proxies so appointed will be entitled to attend, speak or vote at the relevant general meeting. |
Receipt of Proxies |
(A) | Proxy forms which are in hard copy form must be received at the office, or at any other place specified by the company for the receipt of appointments of proxy in hard copy form: |
(i) | 48 hours (or such shorter time as the directors decide) before a meeting or an adjourned meeting; |
(ii) | 24 hours (or such shorter time as the directors decide) before a poll is taken, if the poll is taken more than 48 hours after it was demanded; or |
(iii) | before the end of the meeting at which the poll was demanded (or at such later time as the directors decide), if the poll is taken after the end of the meeting or adjourned meeting but not more than 48 hours after it was demanded. |
(B) | Proxy forms which are in electronic form must be received at least: |
(i) | 48 hours (or such shorter time as the directors decide) before a meeting or an adjourned meeting; |
(ii) | 24 hours (or such shorter time as the directors decide) before a poll is taken, if the poll is taken more than 48 hours after it was demanded; or |
(iii) | before the end of the meeting at which the poll was demanded (or at such later time as the directors decide), if the poll is taken after the end of the meeting or adjourned meeting but not more than 48 hours after it was demanded, |
(a) | in the notice convening the meeting; |
(b) | in any instrument of proxy sent out by the company in relation to the meeting, or |
(c) | in any invitation to appoint a proxy by electronic means issued by the company in relation to the meeting. |
(C) | If the above requirements are not complied with (save where the directors determine otherwise), the proxy will not be able to act for the appointor. |
(D) | Without prejudice to article 72(C), 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 dated with the latest date will be treated as the valid form. |
(E) | In the event Rule 14a-19 of the Exchange Act applies to the company and the company receives proxies for disqualified or withdrawn nominees for the board of directors, such votes for such disqualified or withdrawn nominees in the proxies shall be disregarded and not taken into account at any shareholders’ meeting. |
(F) | A shareholder can attend and vote at a general meeting or on a poll even if the shareholder has appointed a proxy to attend and vote on their behalf at that meeting or on that poll. |
(G) | The proceedings at a general meeting will not be invalidated where an appointment of a proxy in respect of that meeting is sent in electronic form as provided in these articles, but because of a technical problem it cannot be read by the recipient. |
(H) | When calculating the periods mentioned in this article the directors can decide not to take account of any part of a day that is not a working day. |
Maximum Validity of Proxy |
Form of Proxy |
Cancellation of Proxy’s Authority |
(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 shareholder has been revoked. |
Separate General Meetings |
Shareholders’ resolutions and requisitioned meetings |
(A) | Without prejudice to the right of any shareholder under the legislation, where a shareholder (or such other person so entitled under the legislation) (the “requisitioning person”) (i) requests that a resolution be put to an annual general meeting; or (ii) requests that the company call a shareholder meeting, in each case in accordance with the legislation: |
(i) | in the case of a request to put a resolution (other than a resolution to remove a director in accordance with the requirements of the legislation) to an annual general meeting, the requisitioning person must deliver any such request in writing to the office, 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 requisitioning person 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 the company. In no event shall 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 the company occurring after 1 January 2024, references to the anniversary date of the preceding year’s annual general meeting shall be to 15 May 2023; |
(ii) | the requisitioning person must provide, together with the text of the resolution, its reasons for proposing such resolution or requesting such general meeting and any material interest such requisitioning person and its associated persons (individually or in the aggregate, including any anticipated benefit to the requisitioning person or the associated person therefrom) has in the resolution or the business to be proposed at the meeting; and |
(iii) | in addition to the information required by the legislation, the requisitioning person must provide the following information to the company: |
(a) | the name and address of such requisitioning person and of such requisitioning person’s associated persons; |
(b) | details of any interests in shares (“interests in shares”, for the purposes of this article 78, shall have the meaning given to it in article 141(N)(ii)) of the requisitioning person and its associated persons (including, where such requisitioning person is not a shareholder, the name of the shareholder(s) who hold(s) such shares on behalf of the requisitioning person and its associated persons); |
(c) | a description of all agreements, arrangements and understandings between: (i) such requisitioning person (other than where the requisitioning person is a depositary) and its associated persons; and (ii) such requisitioning person (other than where the requisitioning person is a depositary) or its associated persons and any other person (or amongst such associated persons) in connection with the proposed resolution; |
(d) | the proposal of any other business by such requisitioning person or its associated persons; |
(e) | any other information relating to such requisitioning person or its associated persons that would 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 (whether |
(f) | to the extent known by the requisitioning person or its associated persons, the name and address of any other shareholder or person supporting the resolution on the date of such request. |
(B) | For the purposes of this article, an associated person shall mean: |
(i) | any person controlling, directly or indirectly, or acting in concert with (as defined in article 141), such requisitioning person; |
(ii) | any beneficial owner of shares which are owned of record or beneficially by such requisitioning person; and |
(iii) | any person controlling, controlled by or under common control with such associated person. |
(C) | Where the requisitioning person is a depositary, the company shall only be required to put the resolution to the annual general meeting or to call the general meeting where the request has been authenticated by such beneficial owners of shares who would, had they been shareholders, have been entitled under the legislation to require the company to put the resolution to the annual general meeting or to call the shareholder meeting (as applicable). |
(D) | The company shall have the power to determine whether a request made by a requisitioning person in respect of the matters referred to in article 78(A) complies with the requirements of this article 78. If a requisitioning person fails to comply with the requirements of this article 78, the company shall 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 shareholder meeting. |
(E) | Without prejudice to the right of any shareholder under the legislation, any identified person or breaching person (as defined under articles 14 or 141, respectively), shall not be entitled to requisition that a resolution be put to an annual general meeting or to requisition that the company call a shareholder meeting for so long as they are in breach of a statutory notice or any of the provisions of these articles, as applicable. Where the requisitioning person is a depositary, the provisions of this article 78(E) shall be treated as applying only to such resolution and/or shareholder meeting being requisitioned by the depositary to the extent it is so requisitioned on behalf of the identified person or breaching person. |
(F) | If Regulation 14A under the Exchange Act applies to the company, nothing in this article shall be deemed to affect any rights of shareholders to request inclusion of proposals in, nor the right of the company to omit proposals from, the company’s proxy statement pursuant to Rule 14a-8 (or any successor provision) under the Exchange Act, subject in each case to compliance with the Exchange Act. |
(G) | For the purpose of this article, where a request or resolution is delivered by or on behalf of more than one requisitioning person, references to a requisitioning person in relation to such request or resolution and other information requirements shall apply to each requisitioning person. |
Number of Directors |
Nationality of Directors |
(A) | at each annual general meeting during the period from the effective date of the AGA scheme until the date which is five years following such date, nominate for election or re-election (as applicable) a minimum of two representatives from South Africa; and |
(B) | at each annual general meeting following expiry of the period referred to in (A) above, nominate for election or re-election (as applicable) a minimum of one representative from South Africa. |
Power of Company to Appoint Directors |
Power of Directors to Appoint Directors |
Annual Retirement of Directors |
Filling Vacancies |
Power of Removal by Special Resolution |
Persons Eligible as Directors |
(A) | The only people who can be appointed as directors at a general meeting are the following: |
(i) | directors retiring at the meeting; |
(ii) | anyone recommended by the directors; and |
(iii) | anyone nominated by a requisitioning person (not being the person to be nominated) (for the purposes of this article 86, the “nominee”) in the following way: |
(a) | a letter stating that the requisitioning person intends to nominate another person for appointment as a director; |
(b) | written confirmation from the nominee that they are willing to be appointed; |
(c) | written confirmation from the nominee that: |
(1) | neither they nor the requisitioning person nominating them nor any associated person of such requisitioning person is, nor will become, a party to any agreement, arrangement, understanding (whether written or oral) or relationship with, and has not given any commitment or assurance to, any person as to how the nominee, if appointed as a director, will act or vote on any issue or question (a “voting commitment”) that has not been disclosed to the company, including any voting commitment that could limit or interfere with such nominee’s ability to comply, if appointed as a director, with such nominee’s fiduciary duties under applicable law; and |
(2) | neither they nor the requisitioning person nominating them nor any associated person of such requisitioning person is, nor will become, a party to any agreement, arrangement, |
(d) | all information relating to such person that is required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for the election of such director, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act (whether or not Regulation 14A under the Exchange Act applies to the company); and |
(e) | a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such requisitioning person or any associated person of such requisitioning person, and their respective affiliates and associates, on the one hand, and each proposed nominee, and his respective affiliates and associates, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Item 404 of Regulation S-K promulgated by the U.S. Securities and Exchange Commission under the Exchange Act if the requisitioning person making the nomination and any associated person of such requisitioning person on whose behalf the nomination is made, if any, or any affiliate or associate thereof, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant. |
(B) | If Rule 14a-19 of the Exchange Act applies to the company, (i) for any requisitioning person nominating a person for appointment as director (and the beneficial owner of shares, if any, on whose behalf the nomination is being made), such letter must include a representation that the requisitioning person and/or beneficial owner of shares will, to the extent any proxies in support of director nominees other than the company’s nominees are solicited, (a) solicit proxies from holders of the company’s outstanding shares representing at least 67% of the voting rights 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 of 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 company secretary in good faith) that such requisitioning person and/or beneficial owner of shares complied with such representation; (ii) if a requisitioning person and/or beneficial owner of shares that intends to solicit proxies in support of director nominees other than the company’s nominees no longer intends to solicit proxies in accordance with its representation pursuant to the above requirements, such requisitioning person and/or beneficial owner of shares shall inform the company of this change by delivering a notice in writing to the company secretary no later than two business days after the occurrence of such change; and (iii) if a requisitioning person and/or beneficial owner of shares providing such notice is not in compliance with such representation and these articles, no action shall be taken on such nomination and such nominee shall be deemed disqualified, notwithstanding that proxies in respect of such nominee may have been received by the company. |
(C) | The company shall determine whether a nomination of a nominee by a requisitioning person complies with the requirements of article 86(A)(iii) and article 86(B). If a requisitioning person fails to comply with the requirements of article 86(A)(iii) and article 86(B) in nominating a nominee, the company shall 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 general meeting). |
(D) | If at a general meeting, the number of directors approved to be appointed shall exceed the maximum number of directors set out in article 79, the first 20 directors approved to be appointed at the general meeting shall be so appointed and no further directors shall be appointed at such meeting. |
Position of Retiring Directors |
Vacation of Office by Directors |
(i) | the director gives the company a written notice of resignation and the resignation becomes effective; |
(ii) | the director gives the company a written notice in which the director offers to resign, the directors decide to accept this offer and the resignation becomes effective; |
(iii) | all of the other directors (who must comprise at least three people) pass a resolution or sign a written notice removing the director as a director; |
(iv) | the director is or has been suffering from mental or physical ill health and the directors pass a resolution removing the director from office; |
(v) | the director has missed directors’ meetings (whether or not an alternate director appointed by the absent director attends those meetings) for a continuous period of six months without permission from the directors and the directors pass a resolution removing the director from office; |
(vi) | a bankruptcy order is made against the director or the director makes any arrangement or composition with their creditors generally; |
(vii) | the director is prohibited from being a director under the legislation; or |
(viii) | the director ceases to be a director under the legislation or is removed from office under these articles. |
Alternate Directors |
(A) | Any director can appoint any person (including another director) to act in their place (called an “alternate director”). That appointment requires the approval of the directors, unless previously approved by the directors or unless the appointee is another director. A director appoints an alternate director by sending a signed written notice of appointment to the office or to an address specified by the company or by tabling it at a meeting of the directors, or in such other way as the directors approve. |
(B) | The appointment of an alternate director ends on the happening of any event which, if the alternate director were a director, would cause the alternate director to vacate that office. It also ends if the alternate director resigns as an alternate director by written notice to the company or if the relevant appointor stops being a director, unless that director retires but is then re-appointed at the same general meeting. Directors can also remove their alternates by a written notice sent to the office or to an address specified by the company or tabled at a meeting of the directors. |
(C) | An alternate director is entitled to receive notices of meetings of the directors. Alternate directors are entitled to attend and vote as a director at any meeting at which their appointor is not personally present and generally at that meeting are entitled to perform all of the functions of their appointor as a director. The provisions of these articles regulating the meeting apply as if the alternate director (instead of the relevant appointor) were a director. If the alternate director is also a director, or the alternate director attends any meeting as an alternate director for more than one director, that person can vote cumulatively for themselves and for each other director they represent but they cannot be counted more than once for the purposes of the quorum. An alternate director’s signature to any resolution in writing of the directors is as effective as the signature of their appointor, unless the notice of their appointment provides to the contrary. This article also applies in a similar fashion to any meeting of a committee of which the relevant appointor is a member. Except as set out in this article, an alternate director: |
(i) | does not have power to act as a director; |
(ii) | is not deemed to be a director for the purposes of these articles; and |
(iii) | is not deemed to be the agent of their appointor. |
(D) | An alternate director is entitled to contract and be interested in and benefit from contracts, transactions or arrangements and to be repaid expenses and to be indemnified by the company to the same extent as if the alternate director were a director. However, a person who acts as an alternate director is not entitled to receive from the company as an alternate director any pay, except for that part (if any) of the pay otherwise payable to that person’s appointor as the appointor may tell the company in writing to pay to the relevant alternate director. |
Executive Directors |
(A) | The directors or any committee authorised by the directors can appoint one or more directors to any executive position, on such terms and for such period as they think fit. They can also terminate or vary an appointment at any time. The directors or any committee authorised by the directors will decide how much remuneration a director appointed to an executive office will receive (whether as salary, commission, profit share or any other form of remuneration) and whether this is in addition to or in place of the director’s fees as a director. |
(B) | If the directors terminate the appointment, the termination will not affect any right of the company or the director in relation to any breach of any employment contract which may be involved in the termination. |
Directors’ Fees |
Additional Remuneration |
Expenses |
Pensions and Gratuities for Directors |
(A) | The directors or any committee authorised by the directors can decide whether to provide pensions, annual payments or other benefits to any director or former director of the company, or any relation or dependant of, or person connected to, such a person. The directors can also decide to contribute to a scheme or fund or to pay premiums to a third party for these purposes. The company can only provide pensions and other benefits to people who are or were directors but who have not been employed by, or held an office or executive position in, the company or any of its subsidiary undertakings or former subsidiary undertakings or any predecessor in business of the company or any such other company or to relations or dependants of, or persons connected to, these directors or former directors if the shareholders approve this by passing an ordinary resolution. |
(B) | A director or former director will not be accountable to the company or the shareholders for any benefit provided pursuant to this article. Anyone receiving such a benefit will not be disqualified from being or becoming a director of the company. |
Directors’ Interests |
(A) | The directors may, subject to the quorum and voting requirements set out in this article, authorise any matter which would otherwise involve a breach of that director’s duty under the legislation to avoid conflicts of interest (“conflict”). |
(B) | A director seeking authorisation in respect of a conflict must tell the directors of the nature and extent of the relevant interest in a conflict as soon as possible. The director must give the directors sufficient details of the relevant matter to enable them to decide how to address the conflict together with any additional information which they may request. |
(C) | Any director (including the relevant director) may propose that the relevant director be authorised in relation to any matter the subject of a conflict. Such proposal and any authority given by the directors shall be effected in the same way that any other matter may be proposed to and resolved upon by the directors under the provisions of these articles except that: |
(i) | the relevant director and any other director with a similar interest will not count in the quorum and will not vote on a resolution giving such authority; and |
(ii) | the relevant director and any other director with a similar interest may, if the other directors so decide, be excluded from any meeting of the directors while the conflict is under consideration. |
(D) | Where the directors give authority in relation to a conflict or where any of the situations described in paragraph (F) applies in relation to a director (“relevant situation”): |
(i) | the directors may (whether at the relevant time or subsequently) (a) require that the relevant director is excluded from the receipt of information, the participation in discussion and/or the making of decisions (whether at directors’ meetings or otherwise) related to the conflict or relevant situation; and (b) impose upon the relevant director such other terms for the purpose of dealing with the conflict or relevant situation as they think fit; |
(ii) | the relevant director will be obliged to conduct themselves in accordance with any terms imposed by the directors in relation to the conflict or relevant situation; |
(iii) | the directors may also provide that where the relevant director obtains (otherwise than through the director’s position as a director of the company) information that is confidential to a third party, the director will not be obliged to disclose that information to the company, or to use or apply the information in relation to the company’s affairs, where to do so would amount to a breach of that confidence; |
(iv) | the terms of the authority shall be recorded in writing (but the authority shall be effective whether or not the terms are so recorded); and |
(v) | the directors may revoke or vary such authority at any time but this will not affect anything done by the relevant director prior to such revocation or variation in accordance with the terms of such authority. |
(E) | If a director knows that they are in any way directly or indirectly interested in a proposed contract with the company or a contract that has been entered into by the company, they must tell the other directors of the nature and extent of that interest in accordance with the legislation. |
(F) | If a director has disclosed the nature and extent of the relevant interest in accordance with paragraph (E), such director can do any one or more of the following: |
(i) | have any kind of interest in a contract with or involving the company or another company in which the company has an interest; |
(ii) | hold any other office or place of profit with the company (except that of auditor) in conjunction with the director’s office as a director for such period and upon such terms, including as to remuneration, as the directors may decide; |
(iii) | alone, or through a firm with which the director is associated do paid professional work for the company or another company in which the company has an interest (other than as auditor); |
(iv) | 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 holding company or subsidiary company of the company or any other company in which the company has an interest; and |
(v) | be or become a director of any other company in which the company does not have an interest and which cannot reasonably be regarded as giving rise to a conflict of interest at the time of the director’s appointment as a director of that other company. |
(G) | Directors do not have to hand over to the company or the shareholders any benefit they receive or profit they make as a result of anything authorised under paragraph (A) or allowed under paragraph (F) nor is any type of contract authorised under paragraph (A) or allowed under paragraph (F) liable to be avoided. |
(H) | A director cannot vote or be counted in the quorum on a resolution of the directors relating to appointing that director to a position with the company or a company in which the company has an interest or the terms or the termination of the appointment. |
(I) | This paragraph applies if the directors are considering proposals about appointing two or more directors to positions with the company or any company in which the company has an interest. It also applies if the directors are considering setting or changing the terms of their appointment. These proposals can be split up to deal with each director separately. If this is done, each director can vote and be included in the quorum for each resolution, except any resolution concerning themselves or concerning the appointment of another director to a position with a company in which the company is interested where the director has a relevant interest in it. |
(J) | 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 and, if that director does vote, such vote will not be counted, but this prohibition will not apply to any resolution where that interest cannot reasonably be regarded as likely to give rise to a conflict of interest or where that interest is included in the following list: |
(i) | a resolution about giving the director any guarantee, indemnity or security for money which the director or any other person has lent or obligations the director or any other person has undertaken at the request of or for the benefit of the company or any of its subsidiary undertakings; |
(ii) | a resolution about giving any guarantee, indemnity or security to another person for a debt or obligation which is owed by the company or any of its subsidiary undertakings to that other person if the director has taken responsibility for some or all of that debt or obligation. The director can take this responsibility by giving a guarantee, indemnity or security; |
(iii) | a resolution about giving the director any other indemnity where all other directors are also being offered indemnities on substantially the same terms; |
(iv) | a resolution about the company funding the director’s expenditure on defending proceedings or the company doing something to enable the director to avoid incurring such expenditure where all other directors are being offered substantially the same arrangements; |
(v) | a resolution relating to an offer by the company or any of its subsidiary undertakings of any shares or debentures or other securities for subscription or purchase if the director takes part because the director is a holder (or beneficial owner) of shares, debentures or other securities or if the director takes part in the underwriting or sub-underwriting of the offer; |
(vi) | a resolution about a contract in which the director has an interest because of the director’s interest in shares or debentures or other securities of the company or because of any other interest in or through the company; |
(vii) | a resolution about a contract involving any other company if the director has an interest of any kind in that company (including an interest by holding any position in that company or by being a shareholder in that company). If the director has a relevant interest in that company and is aware of such interest, then this does not apply; |
(viii) | a resolution about a contract relating to a pension fund, superannuation or similar scheme or retirement, death or disability benefits scheme or employees’ share scheme which gives the director benefits which are also generally given to the employees to whom the fund or scheme relates; |
(ix) | a resolution about a contract relating to an arrangement for the benefit of employees of the company or of any of its subsidiary undertakings which only gives the director benefits which are also generally given to the employees to whom the arrangement relates; |
(x) | a resolution about a contract relating to any insurance which the company can buy or renew for the benefit of directors or of a group of people which includes directors; and |
(xi) | a resolution relating to the implementation of any transaction pursuant to which the company will become the ultimate holding company of AngloGold Ashanti Holdings plc pursuant to a scheme of arrangement, including a resolution relating to any other steps undertaken in connection therewith, and any documentation to be entered into relating to any such steps. |
(K) | A director will be treated as having a relevant interest in a company if the director holds an interest in shares representing one per cent. or more of a class of equity share capital (calculated exclusive of any shares of that class in that company held as treasury shares) or of the voting rights of that company. In relation to an alternate director, an interest of the appointor shall be treated as an interest of the alternate director without prejudice to any interest which the alternate director has otherwise. Interests which are unknown to the director and which it is unreasonable to expect the director to know about are ignored. |
(L) | Where a company in which a director has a relevant interest is interested in a contract, the director will also be treated as being interested in that contract. |
(M) | Subject to these articles, the directors can exercise or arrange for the exercise of the voting rights attached to any shares in another company held by the company and the voting rights which they have as directors of that company in any way that they decide. This includes voting in favour of a resolution appointing any of them as directors or officers of that company and deciding their remuneration. Subject to these articles, they can also vote and be counted in the quorum as directors of the company in connection with any of these things. |
(N) | If a question comes up at a meeting of the directors about whether a director (other than the chair of the meeting) has an interest in a contract and whether it is likely to give rise to a conflict of interest or whether a director can vote or be counted in the quorum and the director does not agree to abstain from voting on the issue or not to be counted in the quorum, the question must be referred to the chair of the meeting. The chair of the meeting’s ruling about any other director is final and conclusive unless the nature or extent of the director’s interest (so far as it is known to that director) has not been fairly disclosed to the directors. If the question comes up about the chair of the meeting, the question shall be decided by a resolution of the directors. The chair of the meeting cannot vote on the question but can be counted in the quorum. The directors’ resolution about the chair of the meeting is conclusive, unless the nature or extent of the chair’s interest (so far as it is known to the chair) has not been fairly disclosed to the directors. |
(O) | References in this article to: |
(i) | a contract include references to an existing or proposed contract and to an existing or proposed transaction or arrangement whether or not it is a contract; and |
(ii) | a conflict of interest include a conflict of interest and duty and a conflict of duties. |
(P) | The company can by ordinary resolution suspend or relax the provisions of this article to any extent or ratify any contract which has not been properly authorised in accordance with this article. |
General Powers of Company Vested in Directors |
(A) | The directors will manage the company’s business. They can use all the company’s powers except where these articles say that powers can only be used by the shareholders voting to do so at a general meeting. The general management powers under this article are not limited in any way by specific powers given to the directors by other articles. |
(B) | The directors are, however, subject to: |
(i) | the requirements of these articles; and |
(ii) | any regulations laid down by the shareholders by passing a special resolution at a general meeting. |
(C) | If a change is made to these articles or if the shareholders lay down any regulation relating to something which the directors have already done which was within their powers, that change or regulation cannot invalidate the directors’ previous action. |
Change of Name |
Borrowing Powers |
(i) | to borrow money; |
(ii) | to guarantee; |
(iii) | to indemnify; |
(iv) | to mortgage or charge all or any of the company’s undertaking, property and assets (present and future) and uncalled capital; |
(v) | to issue debentures and other securities; and |
(vi) | to give security, either outright or as collateral security, for any debt, liability or obligation of the company or of any third party. |
Agents |
(A) | The directors can appoint anyone as the company’s attorney by granting a power of attorney or by authorising them in some other way. Attorneys can either be appointed directly by the directors or the directors can give someone else the power to select attorneys. The directors or the persons who are authorised by them to select attorneys can decide on the purposes, powers, authorities and discretions of attorneys. But they cannot give an attorney any power, authority or discretion which the directors do not have under these articles. |
(B) | The directors can decide how long a power of attorney will last for and attach any conditions to it. The power of attorney can include any provisions which the directors decide on for the protection and convenience of anybody dealing with the attorney. The power of attorney can allow the attorney to grant any or all of the attorney’s power, authority or discretion to any other person. |
(C) | The directors can: |
(i) | delegate any of their authority, powers or discretions to any manager or agent of the company; |
(ii) | allow managers or agents to delegate to another person; |
(iii) | remove any people they have appointed in any of these ways; and |
(iv) | cancel or change anything that they have delegated, although this will not affect anybody who acts in good faith who has not had any notice of any cancellation or change. |
(D) | The ability of the directors to delegate under this article applies to all their powers and is not limited because certain articles refer to powers being exercised by the directors or by a committee authorised by the directors while other articles do not. |
Delegation to Individual Directors |
(A) | The directors can give a director any of the powers which they have jointly as directors (with power to sub-delegate). These powers can be given on terms and conditions decided on by the directors either in parallel with, or in place of, the powers of the directors acting jointly. |
(B) | The directors can change the basis on which such powers are given or withdraw such powers. But if a person deals with an individual director in good faith without knowledge of the change or withdrawal, the person will not be affected by it. |
(C) | The ability of the directors to delegate under this article applies to all their powers and is not limited because certain articles refer to powers being exercised by the directors or by a committee authorised by the directors while other articles do not. |
Registers |
Provision for Employees |
Use of Seals |
(A) | The directors must arrange for every seal of the company to be kept safely. |
(B) | A seal can only be used with the authority of the directors or a committee authorised by the directors. |
(C) | Subject to as otherwise provided in these articles, every document which is sealed using the common seal must be signed by one director and the secretary, or by two directors or by one director in the presence of a witness who attests the signature or by any other person or persons authorised by the directors. |
(D) | Any document to which the official seal is applied need not be signed, unless the directors decide otherwise or the legislation requires otherwise. |
(E) | The directors can resolve that the requirement for any counter-signature in this article can be dispensed with on any occasion. |
Indemnity of Directors |
(A) | As far as the legislation allows this, the company: |
(i) | can indemnify any director or former director of the company or of any associated company against any liability; and |
(ii) | can purchase and maintain insurance against any liability for any director or former director of the company or of any associated company. |
(B) | A director or former director of the company or of any associated company will not be accountable to the company or the shareholders for any benefit provided pursuant to this article. Anyone receiving such a benefit will not be disqualified from being or becoming a director of the company. |
Directors’ Meetings |
Notice of Directors’ Meetings |
Quorum |
Directors below Minimum through Vacancies |
Appointment of Chair |
(A) | The directors can appoint any director as chair or as deputy chair and can remove any such person from that office at any time. If the person appointed as the chair is at a directors’ meeting, then such person will chair it. In the absence of such person, the chair will be taken by a deputy chair, if one is present. If more than one deputy chair is present, they will agree between them who should chair the meeting or, if they cannot agree, the deputy chair longest in office as a director will take the chair. If there is no chair or deputy chair present within five minutes of the time when the directors’ meeting is due to start, the directors who are present can choose which one of them will be the chair of the meeting. |
(B) | References in these articles to a deputy chair include, if no one has been appointed with that title, a person appointed to a position with another title which the directors designate as equivalent to the position of deputy chair. |
Competence of Meetings |
Voting |
Delegation to Committees |
(A) | The directors can delegate any of their powers or discretions to committees of one or more persons. If the directors have delegated any power or discretion to a committee, any references in these articles to using |
(i) | there must be more directors on a committee than persons who are not directors; and |
(ii) | a resolution of the committee is only effective if a majority of the members of the committee present at the time of the resolution were directors. |
(B) | Unless the directors decide not to allow this, any committee can sub-delegate any of its powers or discretions to sub-committees. Reference in these articles to committees include sub-committees permitted under this article. |
(C) | If a committee consists of more than one person, the articles which regulate directors’ meetings and their procedure will also apply to committee meetings (if they can apply to committee meetings), unless these are inconsistent with any regulations for the committee which have been laid down under this article. |
(D) | The ability of the directors to delegate under this article applies to all their powers and discretions and is not limited because certain articles refer to powers and discretions being exercised by committees authorised by directors while other articles do not. |
Participation in Meetings |
Resolution in Writing |
Validity of Acts of Directors or Committee |
Declaration of Dividends by Company |
Payment of Interim and Fixed Dividends by Directors |
(i) | pay the fixed or other dividends on any class of shares on the dates prescribed for the payment of those dividends; and |
(ii) | pay interim dividends on shares of any class of any amounts and on any dates and for any periods which they decide. |
Calculation and Currency of Dividends |
(A) | All dividends will be declared and paid in proportions based on the amounts paid up on the shares during any period for which the dividend is paid. Sums which have been paid up in advance of calls will not count as paid up for this purpose. If the terms of any share say that it will be entitled to a dividend as if it were a fully paid up, or partly paid up, share from a particular date (in the past or future), it will be entitled to a dividend on this basis. This article applies unless these articles, the rights attached to any shares, or the terms of any shares, say otherwise. |
(B) | Unless the rights attached to any shares, the terms of any shares or these articles say otherwise, a dividend or any other money payable in respect of a share can be paid in whatever currency the directors decide using an exchange rate selected by the directors for any currency conversions required. The directors can also decide how any costs relating to the choice of currency will be met. |
Amounts Due on Shares can be Deducted from Dividends |
No Interest on Dividends |
Payment Procedure |
(A) | Any dividend or other money payable in cash relating to a share can be paid: |
(i) | by inter-bank transfer or by other electronic means directly to an account with a bank or other financial institution (or other organisations operating deposit accounts if allowed by the company) named in a written instruction from the persons entitled to receive the payment under this article; |
(ii) | in the case of uncertificated shares, by means of the relevant system (provided the company has been authorised to do so by or on behalf of the shareholder); |
(iii) | by sending a cheque, warrant or similar financial instrument payable to the shareholder who is entitled to it by post addressed to the shareholder’s registered address; |
(iv) | by sending a cheque, warrant or similar financial instrument payable to someone else named in a written instruction from the shareholder (or all joint shareholders) and sent by post to the address specified in that instruction; or |
(v) | in some other way requested in writing by the shareholder (or all joint shareholders) and agreed with the company. |
(B) | In respect of the payment of any dividend or other money, the directors can decide and notify shareholders that: |
(i) | one or more of the payment means described in paragraph (A) above will be used for payment and, where more than one means will be used, a shareholder (or all joint shareholders) may elect to receive payment by one of the means so notified in the manner prescribed by the directors; |
(ii) | one or more of such means will be used for the payment unless a shareholder (or all joint shareholders) elects for another means of payment in the manner prescribed by the directors; or |
(iii) | one or more of such means will be used for the payment and that shareholders will not be able to elect to receive the payment by any other means. |
(C) | If: |
(i) | a shareholder (or all joint shareholders) does not specify an address, or does not specify an account of a type prescribed by the directors, or does not specify other details, and in each case that information is necessary in order to make a payment of a dividend or other money in the way in which under this article the directors have decided that the payment is to be made or by which the shareholder (or all joint shareholders) has validly elected to receive the payment; or |
(ii) | payment cannot be made by the company using the information provided by the shareholder (or all joint shareholders), |
(D) | For joint shareholders or persons jointly entitled to shares by law, payment can be made to the shareholder whose name stands first in the register. The company can rely on a receipt for a dividend or other money paid on shares from any one of them on behalf of all of them. |
(E) | Cheques, warrants and similar financial instruments are sent, and payment in any other way is made, at the risk of the person who is entitled to the money. The company is treated as having paid a dividend if the cheque, warrant or similar financial instrument is cleared or if a payment is made through bank transfer or other electronic means. The company will not be responsible for a payment which is lost or delayed. Once a dividend has been paid to a shareholder, the company’s obligation in respect of such dividend shall be discharged and no person may bring a claim against the company in respect of such dividend. |
(F) | Dividends can be paid to a person who has become entitled to a share by law as if that person were the holder of the share. |
Uncashed Dividends |
(A) | The company can stop sending dividend payments through the post, or cease using any other method of payment, for any dividend if: |
(i) | for two consecutive dividends: |
(a) | the dividend payments sent through the post have been returned undelivered or remain uncashed during the period for which they are valid; or |
(b) | the payments by any other method have failed; or |
(ii) | for any one dividend: |
(a) | the dividend payment sent through the post has been returned undelivered or remains uncashed during the period for which it is valid; or |
(b) | the payment by any other method has failed, |
(B) | Subject to these articles, the company must recommence sending dividend payments if requested in writing by the shareholder, or the person entitled to a share by law. |
Forfeiture of Unclaimed Dividends |
Dividends Not in Cash |
(i) | authorise any person to sell and transfer any fractions; |
(ii) | ignore any fractions; |
(iii) | value assets for distribution purposes; |
(iv) | pay cash of a similar value to adjust the rights of shareholders; and/or |
(v) | vest any assets in trustees for the benefit of more than one shareholder. |
Scrip Dividends |
(A) | The directors can offer ordinary shareholders (excluding any shareholder holding shares as treasury shares) the right to choose to receive extra ordinary shares, which are credited as fully paid up, instead of some or all of their cash dividend. Before they can do this, shareholders must have passed an ordinary resolution authorising the directors to make this offer. |
(B) | 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. |
(C) | The directors can also offer shareholders the right to request new shares instead of cash for all future dividends (if a share alternative is available), until they tell or are treated as telling the company that they no longer wish to receive new shares. |
(D) | A shareholder will be entitled to ordinary shares whose total “relevant value” is as near as possible to the cash dividend the shareholder would have received (disregarding any tax credit), but not more than it, and rounding down any fractions. The relevant value of a share is the average value of the company’s ordinary shares for five consecutive dealing days selected by the directors starting on or after the day when the shares are first quoted “ex dividend”. This average value is worked out from the middle market quotations for the company’s ordinary shares on the New York Stock Exchange (or any other publication of an investment exchange showing quotations for the company’s ordinary shares) for the relevant dealing days. |
(E) | The ordinary resolution can require that the relevant value is worked out in some different way. |
(F) | After the directors have decided how many new shares ordinary shareholders will be entitled to, they can notify them in writing of their right to opt for new shares. This notice should also say how, where and when shareholders must notify the company if they wish to receive new shares. Where shareholders have opted to receive new shares in place of all future dividends, if new shares are available, the company will not need to notify them of a right to opt for new shares. No shareholders will receive a fraction of a share. The directors can decide how to deal with any fractions left over. For example, they can decide that the benefit of these fractions belongs to the company or that fractions are ignored or deal with fractions in some other way. |
(G) | If a notice informing any shareholders of their right to opt for new shares is accidentally not sent or supplied or is not received (even if the company becomes aware of such failure to send or supply or non-receipt), the offer will not be invalid as a result nor give rise to any claim, suit or action. |
(H) | The directors can exclude or restrict the right to opt for new shares or make any other arrangements where they decide that this is necessary or convenient to deal with any of the following legal or practical problems: |
(i) | problems relating to laws of any territory, or |
(ii) | problems relating to the requirements of any recognised regulatory body or stock exchange in any territory, |
(I) | If a shareholder has opted to receive new shares, no dividend on the shares for which the shareholder has opted to receive new shares (which are called the “elected shares”), will be declared or payable. Instead, new ordinary shares will be allotted on the basis set out earlier in this article. To do this, the directors will convert into capital the sum equal to the total amount of the new ordinary shares to be allotted. They will use this sum to pay up in full the appropriate number of new ordinary shares. These will then be allotted and distributed to the holders of the elected shares on the basis set out above. The sum to be converted into capital can be taken from: |
(i) | any amount which is then in any reserve or fund (including the share premium account, any capital redemption reserve and the profit and loss account or retained earnings); or |
(ii) | any other sum which is available to be distributed. |
(J) | The new ordinary shares will rank equally in all respects with the existing fully paid up ordinary shares at the time when the new ordinary shares are allotted. But, they will not be entitled to share in the dividend from which they arose, or to have new shares instead of that dividend. |
(K) | The directors can decide that new shares will not be available in place of any cash dividend and the relevant dividend will instead be paid in cash. They can decide this at any time before new shares are allotted in place of such dividend, whether before or after shareholders have opted to receive new shares. |
(L) | The directors can decide how any costs relating to making new shares available in place of a cash dividend will be met. For example, they can decide that an amount will be deducted from the entitlement of a shareholder under this article. |
(M) | Unless the directors decide otherwise or unless the uncertificated securities rules require otherwise, any new ordinary shares which a shareholder has chosen to receive instead of some or all of the shareholder’s cash dividend will be: |
(i) | uncertificated shares if the corresponding elected shares were uncertificated shares on the record date for that dividend; and |
(ii) | certificated shares if the corresponding elected shares were certificated shares on the record date for that dividend. |
(N) | The directors may not proceed with any election unless the company has sufficient reserves or funds that may be capitalised, and the directors have sufficient authority to allot shares, to give effect to it after the basis of allotment is determined. |
Power to Capitalise Reserves and Funds |
(A) | If recommended by the directors, the company’s shareholders can pass an ordinary resolution to capitalise any sum: |
(i) | which is part of any of the company’s reserves (including premiums received when any shares were issued, capital redemption reserves, merger reserves or any other non-distributable reserves); or |
(ii) | which the company is holding as net profits. |
(B) | Unless the ordinary resolution states otherwise, the directors will use the sum which is capitalised by setting it aside for the ordinary shareholders on the register at the close of business on the day the resolution is passed (or another date stated in the resolution or fixed as stated in the resolution) and in the same proportions as the ordinary shareholders’ entitlement to dividends (or in other proportions stated in the resolution or fixed as stated in the resolution). The sum set aside can be used: |
(i) | to pay up some or all of any amount on any issued shares which has not already been called, or paid in advance; or |
(ii) | to pay up in full or in part shares, debentures or other securities of the company which would then be allotted and distributed, credited as fully paid, to shareholders (or to another person who the company determines shall hold such shares for and on behalf of the shareholders). |
(C) | The directors can appoint any person to sign a contract with the company on behalf of those who are entitled to shares, debentures or other securities under the resolution. Such a contract is binding on all concerned. |
Settlement of Difficulties in Distribution |
Power to Choose Any Record Date |
Strategic Reports with Supplementary Material |
Method of Service |
(A) | The company can send or supply any notice, document, including a share certificate, or other information to a shareholder: |
(i) | by delivering it to the shareholder personally; |
(ii) | by addressing it to the shareholder and posting it to, or leaving it at, the shareholder’s registered address; |
(iii) | through the relevant system, where it relates to uncertificated shares; |
(iv) | as authorised in writing by the relevant shareholder; |
(v) | where appropriate, by sending or supplying it in electronic form to an address notified by the relevant shareholder to the company for that purpose; or |
(vi) | where appropriate, by making it available on a website and notifying the shareholder of its availability in accordance with this article. |
(B) | Where there are joint shareholders, anything which needs to be agreed or specified in relation to any notice, |
(C) | If on two consecutive occasions any notice, document or other information sent or supplied to a shareholder has been returned undelivered, the company need not send or supply further notices, documents or other information to that shareholder until the shareholder has communicated with the company and supplied the company (or its agents) with a new registered address, or a postal address for the service of notices and the despatch or supply of documents and other information, or has informed the company of an address for the service of notices and the sending or supply of documents and other information in electronic form. Any notice, document or other information sent by post will be treated as returned undelivered if the notice, document or other information is sent back to the company (or its agents), and any notice, document or other information sent or supplied in electronic form will be treated as returned undelivered if the company (or its agents) receives notification that the notice, document or other information was not delivered to the address to which it was sent. |
(D) | The company may at any time and in its sole discretion choose (a) to serve, send or supply notices, documents or other information in hard copy form alone to some or all shareholders; and/or (b) not to serve, send or supply a notice, document or other information to a particular shareholder where it considers this necessary or appropriate to deal with legal, regulatory or practical problems in, or under the laws of, any territory. |
(E) | A member whose registered address is outside the United Kingdom, the United States, South Africa or Ghana and who has not supplied to the company: |
(i) | a postal address within the United Kingdom, the United States, South Africa or Ghana; or |
(ii) | an address for the purposes of communications by electronic means, |
Record Date for Service |
Members on Branch Registers |
Service of Notices on Persons Entitled by Transmission |
(A) | This article applies where a shareholder has died or become bankrupt or is in liquidation, or where someone else has otherwise become entitled by law to that shareholder’s shares, but is still registered as a shareholder. It applies whether the shareholder is registered as a sole or joint shareholder. |
(B) | A person who is entitled to that shareholder’s shares by law, and who proves this to the reasonable satisfaction of the directors, can give the company a postal address for the sending or supply of notices, documents and other information and/or an address for the purposes of communications by electronic means. If this is done, the company can send notices, documents and other information or, where applicable, a notification about the availability of the notice, document or other information on a website, to that address. |
(C) | Otherwise, if any notice, document or other information is sent or supplied to the shareholder named on |
(D) | The company may at any time and in its sole discretion choose to serve, send or supply notices, documents or other information in hard copy form alone to some or all persons who are entitled to a shareholder’s shares by law and may also in its sole discretion, where it considers necessary or appropriate to deal with legal, regulatory or practical problems in, or under the laws of, any territory, determine not to serve, send or supply a particular notice, document or other information to any particular such person. |
Deemed Delivery |
(A) | If any notice, document or other information is given, sent or supplied by the company by post, it is treated as being received the day after it was posted if first class post (or a service similar to first class post) was used or 48 hours after it was posted if first class post (or a service similar to first class post) was not used. If a notice or document is sent by the company by airmail, it is treated as being received 72 hours after it was posted. In proving that any notice, document or other information was given, sent or supplied, it is sufficient to show that the envelope was properly addressed and put into the postal system with postage paid. |
(B) | If any notice, document or other information is left by the company at a shareholder’s registered address or at a postal address notified to the company in accordance with these articles by a shareholder or a person who is entitled to a share by law, it is treated as being received on the day it was left. |
(C) | If a notice is sent through a relevant system, it is treated as being received when the company, or any person acting for the company, sends the issuer-instruction relating to the notice, document or other information. |
(D) | If any notice, document or other information is given, sent or supplied by the company using electronic means, it is treated as being received on the day it was sent even if the company becomes aware that the member failed to receive the relevant notice, document or information and even if the company subsequently sends a hard copy of such notice, document or other information by post. In the case of any notice, document or other information made available on a website, the notice, document or other information is treated as being received on the day on which the notice, document or other information was first made available on the website, or, if later, when a notice of availability is received or treated as being received by the shareholder in accordance with these articles. In proving that any notice, document or other information was given, sent or supplied by electronic means, it is sufficient to show that it was properly addressed. |
(E) | If any notice, document or other information is given, sent or supplied by the company by any other means authorised in writing by a shareholder, it is treated as being received when the company has done what it was authorised to do by that shareholder. |
(F) | Every person who becomes entitled to a share shall be bound by any notice (save for a notice under the legislation requiring particulars of interests in shares or the identity of persons interested in shares) in respect of that share which, before that person’s name is entered in the register, has been sent to a person from whom they derive title. |
Notice When Post Not Available |
Inspection of Records |
(i) | the legislation or a proper court order gives the shareholder that right; |
(ii) | the directors authorise the shareholder to do so; or |
(iii) | the shareholders authorise the shareholder to do so by ordinary resolution. |
Presumptions Where Documents Destroyed |
(A) | The company can destroy or delete: |
(i) | all transfer forms or instructions transferring shares, and documents sent to support a transfer, and any other documents which were the basis for making an entry by the company on the register, after six years from the date of registration; |
(ii) | all dividend and other payment instructions and notifications of a change of address or name, after two years from the date these were recorded; |
(iii) | all cancelled share certificates, after one year from the date they were cancelled; and |
(iv) | all proxy forms after one year from the date they were used if they were used for a poll, or after one month from the end of the meeting to which they relate if they were not used for a poll. |
(B) | If the company destroys or deletes a document under this article, it is conclusively treated as having been a valid and effective document in accordance with the company’s records relating to the document. Any action of the company in dealing with the document in accordance with its terms before it was destroyed or deleted is conclusively treated as having been properly taken. |
(C) | This article only applies to documents which are destroyed or deleted in good faith and where the company is not on notice of any claim to which the document may be relevant. |
(D) | If the documents relate to uncertificated shares, the company must comply with any requirements of the uncertificated securities rules which limit its ability to destroy or delete these documents. |
(E) | This article does not make the company or the directors liable if: |
(i) | they destroy or delete a document earlier than the time limit referred to in paragraph (A); |
(ii) | they do not comply with the conditions in paragraph (C); or |
(iii) | the company or the directors (as the case may be) would not be liable if this article did not exist. |
(F) | This article applies whether a document is destroyed or deleted or disposed of in some other way. |
General disclosure requirements |
(A) | In this article: |
(i) | “percentage level” means the percentage figure found by expressing the aggregate nominal value of all the shares in which the person has interests immediately before or (as the case may be) immediately after the relevant time as a percentage of the nominal value of the shares in issue and rounding that figure down, if it is not a whole number, to the next whole number; |
(ii) | voting rights attached to the following shares are to be disregarded for the purposes of calculating the percentage level: |
(a) | shares acquired for the sole purpose of clearing and settlement within a three day (or less) settlement cycle; |
(b) | shares held by a depositary, custodian or nominee in their capacity as such; |
(c) | shares acquired for stabilisation purposes; and |
(d) | any other shares which the company determines (upon a request from the relevant person) may be disregarded for this purpose; and |
(iii) | a person is deemed to hold voting rights if they would be so deemed in respect of those voting rights had the Disclosure Guidance and Transparency Rules of the Financial Conduct Authority applied to the company. |
(B) | With effect from implementation of the AGA scheme, a person (other than a depositary, custodian or nominee in their capacity as such) must notify the company of the percentage level of the voting rights he holds or is deemed to hold if the percentage of those voting rights: |
(i) | reaches, exceeds or falls below 3%, 4%, 5% and each 1% threshold thereafter up to 100%; or |
(ii) | reaches, exceeds or falls below an applicable threshold in (i) as a result of events changing the breakdown of voting rights publicly disclosed by the company. |
(C) | The notification must be made within two days of the day on which the notification requirement under (B) above arises and must state: |
(i) | the number of voting rights in which the person making the notification holds or is deemed to hold; |
(ii) | the chain of undertakings through which voting rights are deemed to be held, if applicable; |
(iii) | the date on which the threshold was reached or crossed; and |
(iv) | the identity of the person subject to the notification requirement. |
(D) | The company may, but shall not be obliged to, make a public announcement of the information notified to the company pursuant to this article 138. |
(E) | If a person fails to comply with the requirements of this article, or if the person makes a statement to the company in connection with the requirements of this article which is false or inadequate in some important way, the company may send such person a restriction notice in accordance with article 14 and the provisions of article 14 shall apply mutatis mutandis. |
Mandatory offers |
(A) | Subject to (B) below, when any person (other than a depositary, custodian or nominee in their capacity as such) who, together with persons acting in concert with such person, is interested in shares which: |
(i) | in the aggregate carry less than 30 per cent. of the voting rights of the company, such person may not acquire an interest in any other shares in the company which (taken together with shares in which such person or persons acting in concert with such person are interested) would carry 30 per cent. or more of the voting rights of the company; or |
(ii) | in the aggregate carry not less than 30 per cent. but not more than 50 per cent. of the voting rights of the company, such person may not acquire an interest in any other shares in the company. |
(B) | The restrictions in article 139(A) shall not apply to any acquisition of an interest in shares where: |
(i) | the company consents in advance to the acquisition; |
(ii) | the acquisition is made by way of acceptance of an offer which complies with the requirements of these articles; |
(iii) | the acquisition is a result of the company redeeming or purchasing its own shares or interests in its shares; or |
(iv) | persons (other than the acquirer and persons acting in concert with the acquirer) representing 50 per cent. or more of the voting rights state in writing (including by proxy) that they would not accept an offer made by the acquirer made pursuant to (C) below. |
(C) | Subject to (D) below, when either: |
(i) | any person (other than a depositary, custodian or nominee in their capacity as such) acquires, whether in a single transaction or by a series of transactions over a period of time, an interest in shares which |
(ii) | any person (other than a depositary, custodian or nominee in their capacity as such) who, together with persons acting in concert with such person, is interested in shares which in the aggregate carry not less than 30 per cent. but not more than 50 per cent. of the voting rights of the company and such person, or any person acting in concert with such person, acquires an interest in any other shares which increases the percentage of the voting rights in which such person is interested, |
(D) | A person shall not be required to extend an offer pursuant to (C) above if: |
(i) | the company agrees in advance that such acquisition shall not give rise to any requirement to extend an offer under (C) above; |
(ii) | the acquisition is made by way of acceptance of an offer which complies with the requirements of these articles; |
(iii) | the acquisition results from the company redeeming or purchasing its own shares or interests in its shares; or |
(iv) | persons (other than the acquirer and persons acting in concert with the acquirer) representing 50 per cent. or more of the voting rights state in writing (including by proxy) that they would not accept an offer made by the acquirer made pursuant to (C) above. |
(E) | Save with the prior consent of the company, an offer made pursuant to (C) above: |
(i) | shall be conditional only upon the offeror having received acceptances in respect of shares which, together with shares acquired or agreed to be acquired before or during the offer, will result in the offeror holding shares carrying more than 50 per cent. of the voting rights of the company; |
(ii) | must be in cash or accompanied by a cash alternative, in each case, at not less than the highest price paid by the offeror (or any person acting in concert with the offeror) for any interests in shares in the company within the preceding 12 months; and if, after the requirement to make an offer pursuant to (C) above arises and before the offer closes for acceptance, the offeror (or any person acting in concert with the offeror) acquires any interest in shares at above the offer price, the offeror shall increase its cash offer price to not less than the highest price paid for the interest in shares so acquired; and |
(iii) | must be made in writing and 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 days’ notice before the offer is closed. |
(F) | Save with the prior consent of the company, if any director of the company (or any of his or her affiliates) sells an interest in shares to a person (or enters into options, derivatives or other transactions) as a result of which that person is required to make an offer under (C) above, such director must ensure that as a condition of the sale (or other relevant transaction), the person undertakes to comply with the requirements of this article. In addition, except with the prior consent of the company (such decision to be made excluding the relevant director), such director shall not resign from the board of directors until the offer becomes or is declared unconditional. |
(G) | Save with the prior consent of the company and notwithstanding any other provision of this article, no acquisition of any interest in shares in the company which would give rise to a requirement for an offer under this article may be made if the making or implementation of such offer would or might be dependent on the passing of a resolution at any meeting of shareholders of the offeror or upon any other conditions, consents or arrangements, save for the condition set out in paragraph (E)(i) of this article. |
140. |
(A) | This article shall not apply to an offer made pursuant to article 139(C). |
(B) | Save with the prior consent of the company, where an offeror (other than a depositary, custodian or nominee in their capacity as such) or any person acting in concert with it has acquired an interest in shares in the company: |
(i) | within the three month period prior to the commencement of the offer period; |
(ii) | during the offer period; or |
(iii) | prior to the three month period referred to in (i) if in the view of the company there are circumstances which render such a course necessary in order to ensure that all shareholders, and other persons with an interest in the company’s shares, are treated equally, |
(C) | Save with the prior consent of the company, an offeror must make its offer in cash or with a cash alternative where: |
(i) | during the offer period and within the 12 months prior to its commencement, the offeror (together with any person acting in concert with it) has acquired for cash an interest which represents 10 per cent. or more of the shares of that class in issue, in which case the offer for that class shall be in cash or accompanied by a cash alternative, in each case, 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; |
(ii) | during the offer period, the offeror (together with any person acting in concert with it) acquires for cash any interest in shares in the company, in which case the offer for that class shall be in cash or accompanied by a cash alternative, in each case, 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; or |
(iii) | the company 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 the company’s shares, are treated equally. |
(D) | Save with the prior consent of the company and subject to applicable law, where the offeror (or any person acting in concert with the offeror) has acquired an interest in 10 per cent. or more of any class of shares in the company 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. |
(E) | 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. |
(F) | Save with the prior consent of the company, 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. of the voting rights of the company that the offer will not become or be declared unconditional unless the offeror has acquired or agreed to acquire (either pursuant to the offer or otherwise) shares carrying over 50 per cent. of the voting rights. |
(G) | Save with the prior consent of the company, an offer must not be subject to any conditions or pre-conditions which depend solely on subjective judgements by the offeror or its directors or the fulfilment of which is in their hands. |
(H) | Subject to article 140(I) and save with the prior consent of the company, an offer under this article 140 must not be made subject to a condition or pre-condition relating to financing. |
(I) | Notwithstanding article 140(H), 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. |
(J) | The company’s consent is required for any offer which would constitute a partial offer under the Takeover Code. |
141. |
(A) | Within 28 days of any announcement that first identifies it as an offeror (or such longer period as the company may determine), the offeror must either: |
(i) | announce a firm intention to make an offer, in which case the offeror will be required to post its offer document within 28 days (or such other period as the company may determine); or |
(ii) | announce that it does not intend to make an offer, in which case, unless the company determines otherwise, the offeror and/or any person acting in concert with the offeror shall not be permitted, for a period of six months (or such other period as the company may determine): (a) to announce an offer or possible offer; (b) to acquire any interest in shares of the company if any such person would thereby become obliged under article 139(C) to make an offer; or (c) to make any statement or take any other action which raises or confirms the possibility, in the sole discretion of the company, that an offer might be made for shares in the company. |
(B) | Within 2 business days of any announcement that first identifies it as an offeror, the offeror must notify the company of any interest it (together with any person acting in concert with the offeror) holds in the shares of the company. |
(C) | If the offeror or any person acting in concert with the offeror deals in any interests in shares in the company during an offer period, it must notify the company of such dealing (and the interest in shares it (together with any person acting in concert with it) holds following such dealing) by no later than 12 noon on the business day following such dealing. |
(D) | Save with the prior consent of the company, if the company has more than one class of shares at the time that an offer is made, a comparable offer (in accordance with the requirements under the Takeover Code) must be made for each class whether such shares carry voting rights or not. An offer for non-voting shares should not be made conditional on any particular level of acceptances in respect of that class, or on the approval of that class, unless the offer for the voting shares is also conditional on the success of the offer for the non-voting shares. Subject to (E) below, classes of non-voting, non-equity share capital need not be the subject of an offer. |
(E) | Save with the prior consent of the company, when an offer is made for voting shares in the company or for other transferable securities carrying voting rights in the company and the company has convertible securities, warrants or options outstanding, the offeror must make an appropriate offer or proposal (in accordance with the requirements under the Takeover Code) to the holders of such convertible securities, warrants or options to ensure that their interests are safeguarded. |
(F) | The company shall have the power to: |
(i) | without prejudice to article 14, require any person to provide details of: (i) any persons acting in concert with such person; (ii) any interests in shares of such person (or any persons acting in concert with such person); and (iii) any other information, as in each case the company considers appropriate to determine any of the matters under articles 139 to 141; |
(ii) | make such determinations under articles 139 to 141 as it thinks fit, either after calling for submissions from affected persons or other persons or without calling for such submissions; |
(iii) | take such other action as it thinks fit for the purposes of articles 139 to 141, including: |
(a) | prescribing rules (not inconsistent with these articles); |
(b) | setting deadlines for the provision of information; |
(c) | drawing adverse inferences where information requested is not provided; |
(d) | making determinations or interim determinations; |
(e) | appointing an expert to advise the company on any issues arising from articles 139 to 141, including any questions of interpretation; |
(f) | executing documents on behalf of a shareholder; |
(g) | converting any relevant shares held in uncertificated form into certificated form, or vice versa; |
(h) | paying costs and expenses out of proceeds of sale; and |
(i) | changing any decision or determination or rule previously made. |
(G) | If a person fails to comply with any of the provisions of articles 139 to 141 or fails to comply with the requirements in respect of an offer and persists in such failure for 14 days after the date of service of a notice by the company on such person (which notice shall specify the provisions or obligations which have not been complied with and shall require compliance therewith) (a “breaching person”), the company shall have the power, in respect of any shares in which such breaching person (or any person acting in concert with them) are interested (the “relevant shares”), to: |
(i) | determine that the relevant shares no longer give the shareholder who holds such relevant shares or any other person any right to attend, either personally or by proxy, a shareholders’ meeting; |
(ii) | determine that any votes cast or purported to be cast by or on behalf of the breaching person (or any person acting in concert with them) or in respect of the relevant shares, shall be disregarded and not taken into account at any general meeting or at any separate meeting of the holders of a class of shares or on any poll; |
(iii) | determine that, without prejudice to the right of any shareholder under the legislation, the relevant shares no longer give the holder of the relevant shares or any other person any right to requisition a resolution at an annual general meeting and/or to call a general meeting; |
(iv) | determine that any dividend or other distribution (or any part of a dividend or other distribution) or other amount payable in respect of the relevant shares shall be withheld by the company, which shall have no obligation to pay interest on it, and that the breaching person shall not be entitled to elect to receive shares instead of a dividend; |
(v) | determine that no transfer of any certificated relevant shares to or from the breaching person (or any person acting in concert with them) shall be registered unless the directors are satisfied that the transfer would constitute an independent third party sale. In order to enforce the restriction in this sub-paragraph (which, for the avoidance of doubt, shall not apply to any shares held by a DTC depositary), the directors can give notice to the relevant shareholder requiring the shareholder to change relevant shares which are uncertificated shares to certificated shares by the time given in the notice and to keep them in certificated form for as long as the directors require. The notice can also say that the relevant shareholder may not change any relevant shares which are certificated shares to uncertificated shares. If the shareholder does not comply with the notice, the directors can authorise any person to instruct the operator of the relevant system to change any relevant shares which are uncertificated shares to certificated shares in the name and on behalf of the relevant shareholder; and/or |
(vi) | where the breaching person is not a shareholder, require the shareholder holding the relevant shares to transfer, at the company’s direction, the relevant shares to the breaching person or to such other nominee as the company may determine in its sole discretion for nil consideration and on such other terms and conditions as the company may determine. To give effect to any transfer of shares required under this article, the holder of such shares hereby irrevocably and unconditionally appoints the company as its attorney to transfer the shares and do all such other things and execute and deliver all such documents or deeds as may, in the sole discretion of the company, be necessary or desirable to transfer the shares on such terms and conditions as the company may determine. The company, as |
(H) | The restrictions in (G) above, may be lifted at the direction of the company and shall be lifted when: (i) the breaching person has proved to the reasonable satisfaction of the company that it has transferred its interest in the company’s shares to a new beneficial owner that is not affiliated or acting in concert with the breaching person; or (ii) the provisions of this article relating to an offer or, as the case may be, the requirements in respect of an offer, have been complied with in full. |
(I) | The company has full authority to determine the application of articles 139 to 141 including as to the deemed application of relevant parts of the Takeover Code (as if it applied to the company). Such authority shall include all discretion vested in the Takeover Panel (as if the Takeover Code applied to the company). Any resolution or determination of, or decision or exercise of any discretion or power by, the company acting in good faith and on such grounds as the company shall consider reasonable (and the company may rely fully on the advice of any expert appointed pursuant to (F)(iii)(e) above) shall be conclusive and binding on all persons concerned and shall not be open to challenge, whether as to its validity or otherwise on any ground whatsoever and, in the absence of fraud, the company shall not owe any duty of care to or have any liability to any person in respect of any cost, loss or expense as a result of any such resolution, determination, decision or exercise of any discretion or power. The company shall not be required to provide any reasons for any decision, determination, resolution or declaration taken or made in accordance with articles 139 to 141. |
(J) | Any one or more of the directors may act as agent of any shareholder in relation to the execution of documents and other actions to be taken in respect of relevant shares as determined by the company under articles 139 to 141. |
(K) | The company’s consent is required for any offer for interests in shares in the company that (i) purports to exclude U.S. jurisdictional means; or (ii) is conducted in accordance with Rule 14d-1(c) (Tier I exemption) or Rule 14d-1(d) (Tier II exemption) under the Exchange Act, or any successor provisions thereof. |
(L) | Where any relevant shares are held by a depositary, custodian or nominee (in its capacity as such), the provisions of this article 141 shall be treated as applying only to such relevant shares held by the depositary, custodian or nominee on behalf of breaching persons and not to any other shares held by the relevant depositary, custodian or nominee. |
(M) | No depositary, custodian or nominee shall be in breach of article 139(A) or 139(C) or be a breaching person solely as a result of holding any shares (or interests in shares) in its capacity as depositary, custodian or nominee, provided that any shares held by any such depositary, custodian or nominee (or in which such depositary, custodian or nominee is interested) may still be relevant shares for purposes of these articles. |
(N) | Where used in articles 139 to 141: |
(i) | the phrases “voting rights”, “offer” and “offeror” shall have the meaning ascribed to them in the Takeover Code; |
(ii) | the phrase “interests in shares” shall have the meaning ascribed to the definition of “interests in securities” under the Takeover Code; |
(iii) | “offer period” shall mean the period that commences when the first announcement is made of an offer or possible offer for the company and which ends when an announcement is made that an offer has become or has been declared unconditional, that a scheme of arrangement has become effective, that all announced offers have been withdrawn or have lapsed or when an announcement is made that the offeror does not intend to make an offer; and |
(iv) | a person shall be regarded as “acting in concert” with another or others if (i) unless the company determines otherwise, such person would be regarded or presumed to be acting in concert with another or others under the definition of “acting in concert” under the Takeover Code or (ii) the company so determines. |
(O) | Articles 139 to 141 only apply while the Takeover Code does not apply to the company. |
142. |
(A) | Any proceeding, suit or action (other than those arising under the Securities Act or the Exchange Act):- |
(i) | between a shareholder or a beneficial owner of shares in their capacity as such and the company and/or its directors arising out of or in connection with these articles or otherwise; and/or |
(ii) | to the fullest extent permitted by law, between the company and any of its directors in their capacities as such or as employees of the company, including all claims made by or on behalf of the company against its directors, |
(B) | Damages alone may not be an adequate remedy for any breach of these articles, so that in the event of a breach or anticipated breach, the remedies of injunction and/or an order for specific performance would in appropriate circumstances be available. |
(C) | The governing law of these articles and any proceeding, suit or action arising out of or in connection with these articles (whether contractual or non-contractual), is the law of England and Wales. |
(D) | The company shall be entitled to enforce this article 142 for its own benefit, and that of its directors and subsidiary undertakings. |
(E) | Unless the company by ordinary resolution consents to the selection of an alternative forum, the federal district courts of the United States of America shall be the exclusive forum for the resolution of any proceeding, suit or action arising under the Securities Act or the Exchange Act. |
(F) | Any person or entity purchasing or otherwise acquiring or holding any interest in the company’s shares shall be deemed to have notice of and consented to the provisions of this article 142 including in particular submission to the jurisdiction of the courts of England and Wales in relation to any proceeding, suit or action (other than those arising under the Securities Act or the Exchange Act). |
• | has a majority of the votes in the company, either alone or acting with others; |
• | is a shareholder who can appoint or remove a majority of the directors; or |
• | can exercise dominant influence over the company because of anything in the company’s memorandum or articles or because of a certain kind of contract. |
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 |
| | Scheme Implementation Agreement between AngloGold Ashanti (UK) Limited and AngloGold Ashanti Limited, concluded on May 12, 2023 | | | Included as part of Annex A to the prospectus that forms a part of this Registration Statement | |
| | First Addendum to Scheme Implementation Agreement between AngloGold Ashanti plc and AngloGold Ashanti Limited, concluded on June 23, 2023 | | | Included as part of Annex A to the prospectus that forms a part of this Registration Statement | |
| | Irrevocable Offer to Purchase by AngloGold Ashanti (UK) Limited, executed on May 12, 2023 | | | Included as Annex B to the prospectus that forms a part of this Registration Statement | |
| | AngloGold Ashanti plc Articles of Association, as currently in effect | | | Previously filed with the AngloGold Ashanti plc Registration Statement on Form F-4 (File No. 333-272867) on June 23, 2023 | |
| | Form of AngloGold Ashanti plc Articles of Association, expected to become effective upon completion of the Reorganization | | | Included as Annex C to the prospectus that forms a part of this Registration Statement | |
| | Opinion of Slaughter and May, English law counsel | | | Previously filed with the AngloGold Ashanti plc Registration Statement on Form F-4 (File No. 333-272867) on June 23, 2023 | |
| | Opinion of Cravath, Swaine & Moore LLP regarding certain U.S. federal income tax matters | | | Previously filed with the AngloGold Ashanti plc Registration Statement on Form F-4 (File No. 333-272867) on June 23, 2023 | |
| | Opinion of Bowman Gilfillan Inc. regarding certain South African law tax matters | | | Previously filed with the AngloGold Ashanti plc Registration Statement on Form F-4 (File No. 333-272867) on June 23, 2023 | |
| | Opinion of Slaughter and May regarding certain English law tax matters | | | Previously filed with the AngloGold Ashanti plc Registration Statement on Form F-4 (File No. 333-272867) on June 23, 2023 | |
| | Consent of Ernst & Young Incorporated, independent registered public accounting firm | | | Filed herewith | |
| | Consent of BDO LLP, independent registered public accounting firm | | | Filed herewith | |
| | Consent of Cravath, Swaine & Moore LLP | | | Included as part of Exhibit 8.1 | |
| | 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 |
| | Consent of Chairperson of the Mineral Resource and Mineral Reserve Leadership Team | | | Filed herewith |
Exhibit Number | | | Description | | | Method of Filing |
| | Consents of Qualified Persons for Technical Report Summary, Geita Gold Mine, A Life of Mine Summary Report | | | Filed herewith | |
| | Consents of Qualified Persons for Technical Report Summary, Kibali Gold Mine, A Life of Mine Summary Report | | | Filed herewith | |
| | Consents of Qualified Persons for Technical Report Summary, Obuasi, A Life of Mine Summary Report | | | Filed herewith | |
| | Powers of Attorney (included on signature page to this Registration Statement) | | | Included on signature page to this Registration Statement | |
| | Consent of Maria Ramos | | | Previously filed with the AngloGold Ashanti plc Registration Statement on Form F-4 (File No. 333-272867) on June 23, 2023 | |
| | Consent of Rhidwaan Gasant | | | Previously filed with the AngloGold Ashanti plc Registration Statement on Form F-4 (File No. 333-272867) on June 23, 2023 | |
| | Consent of Gillian Doran | | | Previously filed with the AngloGold Ashanti plc Registration Statement on Form F-4 (File No. 333-272867) on June 23, 2023 | |
| | Consent of Kojo Busia | | | Previously filed with the AngloGold Ashanti plc Registration Statement on Form F-4 (File No. 333-272867) on June 23, 2023 | |
| | Consent of Alan Ferguson | | | Previously filed with the AngloGold Ashanti plc Registration Statement on Form F-4 (File No. 333-272867) on June 23, 2023 | |
| | Consent of Albert Garner | | | Previously filed with the AngloGold Ashanti plc Registration Statement on Form F-4 (File No. 333-272867) on June 23, 2023 | |
| | Consent of Scott Lawson | | | Previously filed with the AngloGold Ashanti plc Registration Statement on Form F-4 (File No. 333-272867) on June 23, 2023 | |
| | Consent of Jinhee Magie | | | Previously filed with the AngloGold Ashanti plc Registration Statement on Form F-4 (File No. 333-272867) on June 23, 2023 | |
| | Consent of Maria Richter | | | Previously filed with the AngloGold Ashanti plc Registration Statement on Form F-4 (File No. 333-272867) on June 23, 2023 |
Exhibit Number | | | Description | | | Method of Filing |
| | Consent of Diana Sands | | | Previously filed with the AngloGold Ashanti plc Registration Statement on Form F-4 (File No. 333-272867) on June 23, 2023 | |
| | Consent of Jochen Tilk | | | Previously filed with the AngloGold Ashanti plc Registration Statement on Form F-4 (File No. 333-272867) on June 23, 2023 | |
| | Materials relating to AGA Shareholders’ Meeting | | | Filed herewith | |
| | Extract of Section 164 of the Companies Act | | | Previously filed with the AngloGold Ashanti plc Registration Statement on Form F-4 (File No. 333-272867) on June 23, 2023 | |
| | Filing fee table | | | Previously filed with the AngloGold Ashanti plc Registration Statement on Form F-4 (File No. 333-272867) on June 23, 2023 |
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 |
(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 relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and (iv) any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(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 plc | ||||
| | | | |||
| | By: | | | /s/ Alberto Calderon Zuleta | |
| | | | Name: Alberto Calderon Zuleta | ||
| | | | Title: Executive Director |
Signature | | | Title |
| | ||
/s/ Alberto Calderon Zuleta | | | Executive Director (Principal Executive Officer) |
Alberto Calderon Zuleta | | ||
| | ||
/s/ Robert Paul Harling Hayes | | | Executive Director (Principal Financial Officer and Principal Accounting Officer) |
Robert Paul Harling Hayes | | ||
| | ||
/s/ Gillian Ann Doran | | | Authorized Representative in the United States |
Gillian Ann Doran | | |
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the Technical Report Summaries, as exhibits to the Form 20-F;
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the use of and reference to my name, including my status as an expert or “Qualified Person” (as defined in 1300 Regulation S-K) in connection with the Form 20-F and Technical Report Summaries; and
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any extracts from, or summary of, the Technical Report Summaries in the Form 20-F and the use of any information derived, summarised, quoted or referenced from the Technical Report Summaries, or portions thereof, that is included or
incorporated by reference into the Form 20-F.
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/s/ Tarryn Flitton
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Tarryn Flitton
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the Technical Report Summary, as an exhibit to the Form 20-F;
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the use of and reference to my name, including my status as an expert or “Qualified Person” (as defined in 1300 Regulation S-K) in connection with the Form 20-F and Technical
Report Summary; and
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any extracts from, or summary of, the Technical Report Summary in the Form 20-F and the use of any information derived, summarised, quoted or referenced from the Technical
Report Summary, or portions thereof, that is included or incorporated by reference into the Form 20-F.
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/s/ Duan Campbell
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Duan Campbell
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the Technical Report Summary, as an exhibit to the Form 20-F;
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the use of and reference to my name, including my status as an expert or “Qualified Person” (as defined in 1300 Regulation S-K) in connection with the Form 20-F and Technical Report Summary; and
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any extracts from, or summary of, the Technical Report Summary in the Form 20-F and the use of any information derived, summarised, quoted or referenced from the Technical Report Summary, or portions thereof, that is included
or incorporated by reference into the Form 20-F.
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/s/ Damon Elder
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Damon Elder
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the Technical Report Summary, as an exhibit to the Form 20-F;
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the use of and reference to my name, including my status as an expert or “Qualified Person” (as defined in 1300 Regulation S-K) in connection with the Form 20-F and Technical Report Summary; and
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any extracts from, or summary of, the Technical Report Summary in the Form 20-F and the use of any information derived, summarised, quoted or referenced from the Technical Report Summary, or portions thereof, that is included
or incorporated by reference into the Form 20-F.
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/s/ Richard Peattie
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Richard Peattie
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the Technical Report Summary, as an exhibit to the Form 20-F;
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the use of and reference to my name, including my status as an expert or “Qualified Person” (as defined in 1300 Regulation S-K) in connection with the Form 20-F and Technical Report Summary; and
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any extracts from, or summary of, the Technical Report Summary in the Form 20-F and the use of any information derived, summarised, quoted or referenced from the Technical Report Summary, or portions thereof, that is
included or incorporated by reference into the Form 20-F.
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/s/ Romulo Sanhueza
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Romulo Sanhueza
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the Technical Report Summary, as an exhibit to the Form 20-F;
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the use of and reference to my name, including my status as an expert or “Qualified Person” (as defined in 1300 Regulation S-K) in connection with the Form 20-F and Technical Report Summary; and
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any extracts from, or summary of, the Technical Report Summary in the Form 20-F and the use of any information derived, summarised, quoted or referenced from the Technical Report Summary, or portions thereof, that is
included or incorporated by reference into the Form 20-F.
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/s/ Douglas Atanga
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Douglas Atanga
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the Technical Report Summary, as an exhibit to the Form 20-F;
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the use of and reference to my name, including my status as an expert or “Qualified Person” (as defined in 1300 Regulation S-K) in connection with the Form 20-F and Technical Report Summary; and
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any extracts from, or summary of, the Technical Report Summary in the Form 20-F and the use of any information derived, summarised, quoted or referenced from the Technical Report Summary, or portions thereof, that is
included or incorporated by reference into the Form 20-F.
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/s/ Emmarentia Maritz
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Emmarentia Maritz
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